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The Court's Fraud Dud

Samuel W. Buell

Duke University School of Law

August 10, 2010

Duke Journal of Constitutional Law & Public Policy, Vol. 6, p. 31, 2010

In this contribution to a collection of essays on the Supreme Court’s October Term 2009, I comment on the Court’s trilogy of mail fraud cases, disposed of principally through Justice Ginsburg’s opinion in Skilling v. United States. The Court’s solution to the problem of "honest services fraud" was tidy but somewhat arbitrary and quite shallow. The Court seemed to recognize that the cases presented the problem of how to deal with frauds that involve indirect benefits to violators and/or intangible harms to victims. This can be termed the "relationship and context problem" in fraud or, if one prefers, the "duty problem." But the Court failed to engage with this problem conceptually, missing a golden opportunity to develop the jurisprudence of fraud that is not likely to arise again for a long time. I explain the problem, demonstrate that it is not limited to the recent tempest over the "honest services" statute and its constitutionality, and suggest some directions for addressing it that the Court might have pursued.

Number of Pages in PDF File: 18

Keywords: Fraud, Criminal Law, Corporate Law, Constitutional Law

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Date posted: August 10, 2010 ; Last revised: December 22, 2014

Suggested Citation

Buell, Samuel W., The Court's Fraud Dud (August 10, 2010). Duke Journal of Constitutional Law & Public Policy, Vol. 6, p. 31, 2010. Available at SSRN: https://ssrn.com/abstract=1656350

Contact Information

Samuel W. Buell (Contact Author)
Duke University School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7193 (Phone)

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