Major Honest-Services Decision Delivered Today

The Supreme Court today released a major honest services decision which will have serious implications for the convictions and continued imprisonment of Jeffrey Skilling (imprisoned Enron CEO), Conrad Black (imprisoned newspaper magnate), and, probably as well, for the trial of Rod Blagoevich (who is being tried in large part on an honest services theory). The short version is that, as I previously speculated might happen, the Supreme Court has significantly pared back the expansive view of honest services fraud (fraud constituted by the failure to deliver "honest services") advocated by the Justice Department in recent years. The Court has vacated the appellate decisions upholding the convictions of Skilling and Black, for example.

I'm only managed to get through the syllabus of the 114 page slip opinion at this point. It is absolutely clear, however, that the court rejects the idea that mere "undisclosed self-dealing" amounts to the crime of fraud. Here is the syllabus on Skilling's conviction:

Skilling did not violate §1346 [the honest services statute], as the Court interprets the statute. The Government charged Skilling with conspiring to de-fraud Enron’s shareholders by misrepresenting the company’s fiscal health to his own profit, but the Government never alleged that he solicited or accepted side payments from a third party in exchange for making these misrepresentations. Because the indictment alleged three objects of the conspiracy—honest-services wire fraud, money-or-property wire fraud, and securities fraud—Skilling’s conviction is flawed.

The Court expresses the view, moreover, that only bribery and kickback cases count as honest services fraud, as only these cases represent the true core of the pre-McNally cases.

So then, what are the elements of honest services mail fraud which prosecutors must allege and prove? I think something including:

1. Personal finacial enrichment of the defendant
   
2. in exchange for
   
3. doing an act within the normal scope of one's duties (as an official or employee)
   
4. involving an intentional (material) misrepresentation
   
5. in violation of a fiduciary duty (but what is the source of this duty?)
   

I think this captures the ordinary notion of "kickbacks and bribes" implicit in the pre-McNally cases and does some justice to the basic idea of "fraud," but it's been a while since I've read those cases (most of which I immediately would have tried to forget after the final White Collar exam), so better take all of this with a gigantic grain of salt. Any other ideas for constructing a necessary-and-sufficient list of elements of the crime of "honest services fraud" in light of Skilling?

More, and probably better-quality, blogging and reporting on all of this can be found here and here and here. Incidentally, I haven't seen anyone else yet discuss the implications of this decision for the Blagoevich trial, so maybe I am missing something obvious there, after all, and the prosecution has nothing to worry about at all.

Singer v. Posner on Animal Rights, Plus, Meta-Meta-Ethics!

A recently discovered item of popular philosophical interest: Peter Singer v. Richard Posner on animal rights, and the role of ethical theorizing in ethical decision making. It's an old piece, but still interesting. Posner argues that ethical arguments don't matter, and that Singer, for example, shouldn't have any faith in his ability to convince people to treat animals one way or another simply by offering ethical reasons. What matters, Posner opines, is the hard light of experience, and sentiment; and ethical arguments are so much ungrounded abstraction. Posner offers a historical challenge as well: name a clear instance where philosophizing about ethics ever made a difference (rather than simply reflected a shift already made).

I think Posner could well be right, by and large, as to the history; it might be the case that philosophers have historically been better at reflecting historical change (or at least, better at reflecting pre-existing viewpoints) than in driving such change. Incidentally, this might be changing; in Europe, at least, my impression is that philosophers are increasingly regular participants in popular or quasi-popular political debates. This may also be a trend here, albeit in the early stages; witness, for example, the New York Times' new popular philosophy blog.

My quick thoughts on Posner is that, nevertheless, even if he is right about all of this, it still doesn't conclusively ground his general meta-ethical skepticism. The hard light of experience might reflect reasons of a sort that can be understood and appreciated generally. If so, then to the extent that those reasons can be revealed to us by ethical philosophizing (and, arguably, this is just what ethical theory tries to do, in large part), then we will have revealed to ourselves reasons -- our own! -- to act in some ways and not others. Where we then fail to respect the further demands which these reasons place on our scope of action, we don't merely fail to adhere to some abstract notion of transcendent morality; we fail really to be true to ourselves in a deep way. This is what is at stake in moral skepticism, generally--it is what is at stake in dismissing Peter Singer's arguments out-of-hand, particularly--and it's a hazard which I think Posner unfortunately fails to appreciate.

Another way to get at this point, maybe, is to suggest that there are two basic ways of discovering reasons for action: by knocking our skulls against Hard Experience, or by careful philosophical reflection (which would ideally reveal reasons before we knock our skulls against Hard Experience). That humans have for the most part morally progressed because of the former isn't a reason to avoid the latter. Given the unpleasantness of skull-knocking generally, we might even have a positive reason to prefer the latter.

(The title of this post because I suppose the question of "what is at stake in meta-ethical argument?" is itself a meta-meta-ethical question.)

Ethical Musings

At the Law, Religion, and Ethics blog, Steven Smith riffs on Peter Singer's recent New York Times article taking up the notion that us humans might have an ethical duty to go extinct as a species. Riffing on a riff, I take up Steven Smith's ideas there.

The very short crib notes version of my comment there (of a set of thought already rough) is that significant ethical confusion is generated by failing to carefully distinguish between a principle recommending maximizing goods (the wrong principle) and one which recommends action which gets us nearer to an idea of The Good.

Hopefully the point bears out-- I haven't reflected very much.

Note Rising

In a self-serving break from procastinating from serious studying, I pause to note the rise of my Note on SSRN's Education Law (Primary and Secondary) chart of recent hits. (Currently #9, up from #10.)

And before you wags chime in, no, I'm not spending my time downloading copies to boost numbers.

Reason for the long neglect PLUS gay exorcism-

A couple of reasons for the long neglect-

1) Finishing school-

2) Working on that Rawls paper. At the end of May, I co-delivered a colloquium to Department of Philosophy here at OSU on public reason in Rawls (sort of in line with this hasty prior post, but hopefully somewhat better developed). This project required a massive amount of attention before---

3) Bar review. The bar exam is at the end of July, and I'm more-or-less hard at work studying.

Reason #3 means that the long neglect is likely to continue to some extent.

Although it's a meager offering, here's something to tide you over- a piece (or links thereto) on a interesting phenomenon I had never heard of previously: Gay Exorcism Rites. (The thought being that demons make people gay.) I say "interesting," but of course I mean "patently ridiculous and embarrassingly superstitious." There's apparently a question as to whether these rites can amount to child abuse and ought to be interfered with by authorities. It's disheartening to see that some public officials may be holding back out of concerns for impinging on religious freedom. This is disheartening because, if in fact the practices amount to abuse (I haven't read the longer piece yet and don't have an opinion on this), any deference to religious sensitivities is misplaced, and certainly unnecessary at least as far as the First Amendment is concerned. The First Amendment is complex and fertile ground for legal and academic disagreement, but I would be extremely surprised to discover any serious scholar who thinks that the First Amendment licenses child abuse.