Monday, February 23, 2009

Scalia Voices Opinion on Section 1346 - "Chaos"

This blog has previously noted the problems with section 1346 of the mail fraud statute (see here).  The "intangible rights" doctrine has been the subject of much concern.

But Justice Scalia, in a dissent to a denial of certiorari, voiced a strong opposition to the progression of the intangible rights doctrine in a direction that needs correction.  Although the Court did not accept cert in the Sorich case, a case involving "city employees who engaged in political-patronage hiring for local civil-service jobs," Justice Scalia noted that the "28 words" in the statute had "been invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries."  He stated that "[w]ithout some coherence limiting principle to define what 'the intangible right to honest services" is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct."  Justice Scalia concludes his dissent by stating that "it seems to me quite irresponsible to let the current chaos prevail."

See also Lyle Denniston, Scotus Blog here

(esp)(w/ a hat tip to Peter Goldberger)

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The Fiduciary Duty Statute does need clarification

There needs be 1346(a) Politician Breach

1346(b) Justice System Breach

1346(c) Accountant, attorney etc breach

etc etc.

We need less regulation of intangible ideas
but more regulation of mendacious Intent

Posted by: Laser Haas | Feb 23, 2009 10:43:50 PM

Hi Ellen! Good post. For once I agree with Justice Scalia on 1346. Hope you are well.

Posted by: birdsongslaw | Feb 27, 2009 9:13:53 AM

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