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Most academics and practitioners with whom the author has discussed the result in Skilling v. United States believe that it is a sensible decision. That is, the Supreme Court did the best it could to limit the reach of 18 U.S.C. § 1346, which all nine justices apparently believed—correctly—was, on its face, unconstitutionally vague. Congress responded quickly and with little consideration with the supremely under-defined § 1346. In the over twenty years since the statute's enactment, the Courts of Appeals have been unable to come up with any unified limiting principles to contain its reach. The Skilling Court, evidently reluctant to again throw the matter back to Congress given that institution's previous default, and not satisfied with the Courts of Appeals' efforts, was determined to come up with its own "narrowing interpretation." Thus, the majority deemed it appropriate to rewrite the statute to cover what it concluded was the "core" of the criminality the prosecutors had addressed in bringing § 1346 cases-bribery and kickbacks. The Court comes up with narrowing constructions to avoid constitutional difficulties in many statutory interpretation cases, the argument goes, and this construction is one that many in the academic and practice communities believe is reasonable.

The author’s quibble with this consensus lies in her conviction that what the Court did in Skilling is as patently unconstitutional as § 1346—and that its foray into legislation is not of only academic concern. It clearly accepted Congress' delegation of law-making authority and essentially promulgated a new statute out of the "dog's breakfast" that was pre-Skilling § 1346. Some would argue that this is a good thing from a practical, if not an orthodox separation-of-powers, point of view. The author focuses on Professor Dan M. Kahan's long-standing arguments in this regard. Kahan favors administrative specification of the content of arguably vague criminal prohibitions, but he believes that if one has to choose between judicial gap-filling and congressional action, the former is preferable to the latter. Kahan has argued that the Court ought to come clean and simply acknowledge that it has long been engaged in interstitial lawmaking because Congress has declined to legislate with any specificity and "[a] criminal code at least partially specified by courts is both less costly and more effective than is a code fully specified by Congress." The author disagrees with Kahan’s conclusion about the viability and attractiveness of this delegation of authority to federal courts to fill in the blanks in otherwise underspecified statutory schemes. The honest-services fraud theory, which culminated in Skilling, presents a wonderful example of how criminal law ought not be made, whether viewed from an institutional, societal, or individual standpoint.

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39 Fordham Urb. L.J. 343-360 (2011)