NCJ Number
204402
Journal
Harvard Journal on Legislation Volume: 41 Issue: 1 Dated: Winter 2004 Pages: 281-317
Date Published
2004
Length
37 pages
Annotation
This article argues that the recent flood of corporate scandals suggests the need to reconsider the potential civil application of Federal racketeering laws, notably the Racketeer Influenced and Corrupt Organizations Act (RICO), to white-collar crime.
Abstract
A decade ago the author published another article which developed the argument that a series of judicially imposed restrictions on civil applications of RICO threatened to nullify its potential effectiveness in combating "enterprise criminality." In the current article, he notes that judicial activism that has curtailed civil RICO has continued unabated in the subsequent years, such that even the more strictly constructionist U.S. Supreme Court has embraced some of the revisionist restrictions. RICO has fared no better in Congress, which enacted legislation to restrict its potential civil application by excepting securities fraud from RICO's scope. In seeking to resurrect the use of the civil application of RICO, part I of this article examines the origin and dual purpose of RICO as both a criminal and civil enforcement tool against both traditional organized crime and white-collar crime. Part II explains how and why Federal courts and Congress, respectively, dismantled RICO's civil enforcement mechanisms through enlightened pleading requirements and artificially restrictive readings of the statutory "pattern" and "enterprise" elements, as well as legislative reform that has denied relief to many victims of securities fraud. Part III identifies how the consequences of these actions in the context of the Enron/Arthur Andersen case render relief under civil RICO problematic, if not impossible. The concluding section of this article proposes legislative reform that would restore RICO to its place in commercial fraud litigation. This reform would impose liability on violators by eliminating judicially imposed impediments to the targeting of perpetrator enterprises and corrupt professionals who facilitate their crimes. The author further explains the importance of eliminating heightened pleading requirements for RICO actions so as to reverse the trend of judicial activism that has undermined civil RICO enforcement efforts since the statute's inception. 229 notes and appended provisions of the proposed Corporate RICO Reform Act of 2004 accompanied by commentary