This post by Professor Leiter is a bit of a muddled-up attack on me (read Leiter’s post, then my post, and you’ll see why). I respect Professor Leiter quite a bit but, boy, can I understand why some folks think that he — not Justice Thomas — might be the “lunatic.” The guy attacks with the subtlety and precision of a shotgun.
UPDATE: I understand that the good Professor is updating his post to clarify it. My thanks to him. (And, though I frequently disagree with Professor Leiter, please take note that I generally find his blog to be a very informative and enjoyable read.)
Anyway, I’ll try to respond by the end of the day.* ‘Till then, consider this an open thread.
von
*There’s this billable hour thing, see, which gets in my bloggin’ ways.
Katherine’s post reminded me of a question I had for Von. What’s the applicability of RICO to university textbook price gouging? Because I’m taking a few classes on a lark and I’m staring down $110 for a stats book that contains the same information as the overpriced $25 book I already own. Of course, I don’t have a choice, because the University mandated to the professor that he mandate to me that that’s the book for the class. And I assume some of the publisher’s money changed hands in there somewhere.
What’s the applicability of RICO to university textbook price gouging?
RICO is perhaps the most over-used and over-applied statute on the books — it is frequently used by overzealous attorneys to implicate and complicate garden-variety business disputes in order to bludgeon a defendant into settlement. (Yes, I typically represent defendants in the RICO context; I about split 50-50 in my patent litigation practice.) Thus, I’m hesitant to even vaguely endorse the idea of using RICO outside the context of actual, honest-to-goodness organized crime. In addition, as a matter of professional ethics, I’m not going to talk in any specifics.
But, to answer your question in a broad sense:
There are essentially four “types” of RICO claims; I’ll briefly address the most common, Section 1962(c) (that’s technically incorrect because virtually every Section 1962(c) claim is accompanied by a Section 1962(d) conspiracy-to-violate Section 1962(c), but whattayawant for free?). Section 1962(c) basically requires a showing that the defendant “conducted” an “enterprise” through “a pattern of racketeering activity.”
Here’s how it breaks down:
The center of every RICO claim is a RICO “enterprise.” The RICO enterprise is the alleged vehicle for the claimed wrongdoing — the company infiltrated, the dupe manipulated, or the instrument implemented. It is through the RICO enterprise that the various crimes are committed. (Think of the Mafia infiltrating the Teamsters and using the Teamsters to traffic drugs, commit extortions, etc. The Teamsters would be the RICO enterprise).
So, your first step is to show that a RICO “enterprise” exists. The RICO enterprise need not be a company — as you’ve seen, a labor union will do, etc. However, in most jurisdictions (RICO law is fraught with splits between the Courts) the RICO enterprise must have some life and purpose apart from the crimes being committed. The Seventh Circuit is famous for stating that the RICO enterprise must have structure, and be something more than a bunch of folks who get together to commit a bunch a crimes.
Got a RICO enterprise in mind? Say, a textbook distributing company? Good. Now, you have to identify the defendants. For a Section 1962(c) claim (but not other RICO claims — no, I’m not explaining why), RICO defendants cannot be the same as the RICO enterprise. The heart of the Section 1962(c) claim is, basically, BAD GUYS 1 and 2 manipulating the RICO ENTERPRISE. Remember: Mafia infiltrating the Teamsters.
O.K., identified some Defendants? Say, a couple textbook manufacturing companies? Allright, your next step is two-fold: You must show that they “conducted” the affairs of the RICO enterprise “through a pattern of racketeering activity.”
What’s conducted? It means some level of control: On one hand, a mere business relationship ain’t enough (I buy crap from you and pay for it); on the other, absolute dominion is not required. Big gray area.
What’s racketeering activity? It’s spelled out in a long list in a statute, but basically it includes mail fraud, wire fraud, money laundering, extortion, etc. — you know, the good stuff.
What’s a “pattern of racketeering activity”? There has to be some sort of length or substance to the activity, and (usually) some threat of continuing harm or criminal activity. RICO punishes schemes, not one shot deals. (There’s a lot of complexity in this area — the need for “closed” or “open-ended” continuity, etc. — that I’m just gonna skate over. Remember: Free advice.)
How do you conduct an enterprise through a pattern of racketeering activity? Well, for instance, I use a dry cleaning company to launder the proceeds from my drug business, and extort/blackmail you and others into doing business with my dry cleaning business, extra funds that I siphon away to my bank on Little Caymen. Or something like that. If you can apply that notion to a textbook company-distributor relationship, ya might have a shot.
Final note: There’s a special procedural limitation on RICO claims (indeed, all claims of fraud) called Rule 9(b). That means that you have to “plead” each allegation of “racketeering activity” with “particularity”, or else your claim can get dismissed before pretty much anything happens in the case. Rule 9(b) usually requires you to give the who, what, when, where, and how of each separate racketeering act (sometimes called the RICO predicate acts). You also, usually, have to plead a motive to do the crime (fraudulent intent).* This is very, very difficult to do, and a lot of RICO claims can’t meet Rule 9(b)’s requirements
That’s it. Easy as pie.
von
* Two things: (1) There are exceptions to Rule 9(b), which I’m glossing over; (2) A sharp-eyed lawyer may take issue with the need to plead fraudulent intent, on the grounds that intent typically need only be averred generally under Rule 8. Though that’s generally so in typical fraud claims, most courts do require some substantial showing of fraudulent intent for a RICO claim. Trust me on this.
“The RICO enterprise is the alleged vehicle for the claimed wrongdoing”
The University of Washington? Done!
“Now, you have to identify the defendants.”
Addison Wesley? Done!
“What’s conducted? It means some level of control:”
Sadly, market control is all I got. Maybe we’re moving into anti-trust territory now.
Well, you’ve probably spared Addison Wesley a mostly frivolous RICO lawsuit. I won’t tell your firm.
Well, you’ve probably spared Addison Wesley a mostly frivolous RICO lawsuit. I won’t tell your firm
How do you know Addison Wesley isn’t a client? 😉
Anyway, the best way to get a complaint dismissed is to marry one complex, unfavored claim (RICO) to another (antitrust). (Which, of course, suggests that there are some bases for applying RICO to anti-trust claims. . . . .)
BTW, as I intend to point out w/r/t the Abu Gharaib lawsuit, Rule 9(b) does not always apply where a fraud claim is not involved. I.e., it’s not at all clear (to me, at least) that one needs to plead the “predicate act” of torture (or extortion) with particularity. (A few District Court judges apply Rule 9(b) to all RICO claims, but it’s a minority position & probably based on a misreading of the law.)
On the subject of law, is it gotcha politics to note that a Bush nominee for a fed appeals has been practicing without a license for 4 years? I personally don’t care about his license, long as he’s competent – but perhaps lawyers do.
Coming back to Leiter, guess I don’t care if von misdescribed his earlier post. I would be more than slightly unhappy to find that ND publicly denies that HIV causes AIDS, as alleged at that link (which if correct breaks his anonymity for those who care) – an even more serious charge than Holocaust denial in my book.
“is it gotcha politics to note that a Bush nominee for a fed appeals has been practicing without a license for 4 years?”
Meh. . It’s reasonable to believe the excuse that it was a simple procedural oversight. Of course it’s still illegal (or conduct unbecoming, or what have you) and the attendant punishments should attend, but I’m not going to mark it down in the Another Corrupt, Evil Republican category.
I would be more than slightly unhappy to find that ND publicly denies that HIV causes AIDS, as alleged at that link (which if correct breaks his anonymity for those who care)…
FWIW, I know he did it on the old Tacitus site; I remember being, uh, somewhat taken aback. Damned if I know where, though; you’d need to trawl through a searchable archive to have any prayer of finding it.
[If I had to guess, it was either in an evolution thread — possibly about the Georgia case — or a climatology thread. He got into a dust-up with a particular biologist who, I believe, didn’t post at Tacitus much after that; did his usual shtick of setting himself up as an arbiter of scientific knowledge and of the utility of PhDs; and, sort of en passant, happened to mention that he didn’t believe the scientific record supported the claim that HIV caused AIDS. Hope that helps.]
Damn, that’s awful news.
In this thread, ND uses the term ‘HIV/AIDS’ a lot. Take from that what you will. Best to ask him.
I think the speculating as to Navy Davy’s views on the matter, as we’re doing, is blossiping (blog-gossiping). Let’s cut it out.
I agree with Von.
With pseudonyms and online attitudes, bloggers and commenters choose for themselves what degree of reality about themselves they wish to offer up for public consumption. It’s not anyone’s right to dig deeper and expose them. If they’re pontificating “in person” in a venue where anonymity is not the norm, that’s one thing.
What we’re doing here is better than debating the person, anyway…we’re debating the issues. Leave the ad hominem stuff out.
Perhaps someone could send him an email soliciting a comment on this (and perhaps a follow-up to Arc on the other thread). I’m not going to, having learned I write bad letters when angry.
“is it gotcha politics to note that a Bush nominee for a fed appeals has been practicing without a license for 4 years?”
“Meh. . It’s reasonable to believe the excuse that it was a simple procedural oversight.”
Well, the twist here is that it’s a little more than a paperwork screwup. (by the way, my own feeling is that it’s a pretty bad paperwork screwup– something on the order of forgetting to file your tax return).
Because he failed to maintain his DC bar membership, he wasn’t eligible to waive into the Utah bar– meaning that if he wanted to “practice law” in Utah he would have to take the bar exam all over again.
Apparently he decided that, although he was the top legal officer, he would simply avoid “practicing law” rather than take the bar exam again. Admittedly, there is some wiggle room on what constitutes the practice of law, but it looks like it was not an oversight, but that he basically thumbed his nose at the Utah bar requirements.