Yesterday, the FCPA Blog introduced a new article entitled "Courageous Correspondents: Recent Foreign Corrupt Practices Act-Related Scholarship that Rocked the Boat." The article is featured in the online supplement, On Remand, to volume 46 of the New England Law Review, and may be downloaded here. The article mentions the "too-big-to-debar" debate, which Professor Stevenson and I first wrote about back in April (see here), as having "rocked the boat" by helping "everyone understand why debarment has never been used as a remedy in an FCPA enforcement action."
The Project on Government Oversight (POGO) has also joined the discussion. In a letter urging Congress to reject a proposed amendment that would relax the FCPA's anti-bribery provisions, POGO cited our research on debarment as evidence that "[e]xcessive enforcement of the FCPA is not the problem; lack of enforcement is." The letter is available here.
Earlier this week I responded to POGO's letter in a guest post on the FCPA Blog entitled "Amending the FCPA: If It Ain't Broke...." (see here).
Comment, Honest-Services Fraud: The Supreme Court Defuses the Government's Weapon of Mass Discretion in Skilling v. U.S.
I recently wrote a legal commentary discussing the Supreme Court’s 2010 decision in Skilling v. United States and its impact on the honest-services fraud statute, which was selected for publication in the summer 2010 issue of the South Texas Law Review (51 S. Tex. L. Rev. __).
The most recent version is available for download at SSRN.*
*Special thanks to the following websites for helping promote my Comment:
Abstract: For over two decades federal prosecutors wielded a weapon of mass discretion in their fight against corruption: the honest-services fraud statute. Although prosecutors welcomed the statute's ambiguous text, judges, defendants, and scholars struggled for more than two decades to answer a number of difficult constitutional questions arising from the honest-services fraud theory. In 2010, the Supreme Court used Skilling v. United States - a case that chronicles the events that led to the epic collapse of former energy giant Enron - to defuse the Government’s “weapon of mass discretion” by limiting honest-services fraud to cover only schemes involving bribery or kickbacks, thereby placing more subtle forms of dishonesty, such as undisclosed self-dealing, outside the statute's reach.
This Comment discusses the case’s impact on the fallen Enron CEO’s fight for freedom, in addition to its impact on two other petitioners who successfully challenged the honest-services fraud statute in 2010. I also examine the rights of the defendants whose convictions or plea agreements were premised on an application of the statute now declared unconstitutional, as well as analyze the decision’s impact on pending and future cases of honest-services fraud.
Finally, I explain why Congress will likely supersede Skilling by amending § 1346 to expressly criminalize schemes involving an individual’s failure to disclose their self-dealing; analyze the proposed “Honest Services Restoration Act” (HSRA), which was drafted to accomplish this goal; and conclude that, although not perfect, the proposed language contained in the HSRA adequately addresses the major constitutional concerns surrounding the use of honest-services fraud to prosecute undisclosed self-dealing.
Posted at 06:13 PM in Comment, Congress, Current Affairs, Enron, Honest Services Fraud, Jeff Skilling, Law, Legislation, SCOTUS, SSRN, Statutory Interpretation, White Collar Crime | Permalink | Comments (0)
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