Clarity and Confusion: Rico's Recent Trips to the United States Supreme Court

Abstract

The complicated structure of the Racketeer and Corrupt Organization Act has bedeviled courts courts and litigants since its adoption four decades ago. Two questions have recurred with some frequency. First, is victim reliance an element of a civil RICO claim predicated on allegations of fraud? Second, what is the difference between an illegal association-in-fact and an ordinary civil conspiracy? In a series of three recent cases, the United States Supreme Court brought much needed clarity to the first question. But in another recent case, the Court upended decades of circuit-court precedent holding that an actionable association-in-fact must be embody a set of structural attributes that would not ordinarily be present in a conspiracy. This Article analyzes these new cases, puts them in historical context, and discusses their likely ramifications for civil RICO litigation.

Keywords: RICO, mail and wire frauds, reliance, proximate cause, association-in-fact, enterprise, pleading