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Skilling Reconsidered: The Legislative-Judicial Dynamic, Honest Services Fraud, and the Ill-Conceived 'Clean Up Government Act'

31 Pages Posted: 3 Jul 2012 Last revised: 5 May 2015

Kelly Strader

Southwestern Law School

Date Written: December 1, 2011

Abstract

In United States v. Skilling, the United States Supreme Court narrowed the reach of the federal honest services fraud statute in order to avoid holding the statute unconstitutionally vague. The decision subjected the Court to substantial criticism, both from those who believe that the Court improperly engaged in legislation and those who believe that the Court should have deferred to Congress and left the statute in place. This article provides a soft defense of the Skilling decision, and a critique of Congress's proposed response to the decision. The article argues that the honest services statute indeed created a vague crime that failed to provide fair notice to potential defendants or to cabin prosecutors' discretion. But, in light of Congress's complicity in creating the overcriminalization and overfederalization crises, the Court probably took the best (or least bad) route in attempting to provide rational boundaries for honest services prosecutions. Finally, the article analyzes proposed legislation designed to overturn Skilling, concluding that the legislation would do nothing to solve the vagueness challenge that Skilling addressed.

Keywords: Criminal Law, White Collar Crime, Mail Fraud, Vagueness

JEL Classification: K14

Suggested Citation

Strader, Kelly, Skilling Reconsidered: The Legislative-Judicial Dynamic, Honest Services Fraud, and the Ill-Conceived 'Clean Up Government Act' (December 1, 2011). Fordham Urban Law Journal, Vol. 39, No. 2, 2011. Available at SSRN: https://ssrn.com/abstract=2097999

Kelly Strader (Contact Author)

Southwestern Law School ( email )

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