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An Analysis of the Myths That Bolster Efforts to Rewrite RICO and the Various Proposals for Reform:"Mother of God-Is This the End of RICO?"

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An Analysis of the Myths That Bolster Efforts to Rewrite RICO and the Various Proposals for Reform: Vanderbilt Law Review Volume 43 Issue 3 Issue 3 - Symposium: Reforming RICO: Article 10 If, Why, and How 4-1990 An Analysis of the Myths That Bolster Efforts to Rewrite RICO and the Various Proposals for Reform:"Mother of God-Is This the End of RICO?" G. Robert Blakey Thomas A. Perry Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Business Organizations Law Commons, and the Criminal Law Commons Recommended Citation G. Robert Blakey and Thomas A. Perry, An Analysis of the Myths That Bolster Efforts to Rewrite RICO and the Various Proposals for Reform:"Mother of God-Is This the End of RICO?", 43 Vanderbilt Law Review 851 (1990) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol43/iss3/10 This Symposium is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. An Analysis of the Myths That Bolster Efforts to Rewrite RICO and the Various Proposals for Reform: "Mother of God-Is This the End of RICO?" G. Robert Blakey* and Thomas A. Perry** I. INTRODUCTION .......................................... 853 II. MYTHS THAT BOLSTER EFFORTS TO REWRITE RICO ..... 860 A. The Organized Crime Myth .................... 860 B. The Legitimate Business Myth ................. 868 C. The Litigation Floodgate Myth ................. 869 D. The Two Letters Myth ......................... 874 E. The Contract Dispute Myth .................... 875 F. The Racketeer Label.Myth ...................... 875 G. The Litigation Abuse Myth .................... 877 H. The Litigation Abuse Remedies Myth ........... 879 I. The Garden Variety Fraud Myth ............... 881 J. The Adequacy of State Law Myth .............. 909 K. The Adequacy of Law Enforcement Myth ....... 912 L. The Multiple Damages Myth ................... 916 M. The Federalism Myth .......................... 920 III. PROPOSALS FOR REFORM ................................ 924 A . T itle ......................................... 926 B. Predicate Offenses ............................. 926 C. Burden of Proof ............................... 928 D. Government Suits ............................. 928 1. Exclusion of Key Governmental Entities..*.. 929 2. Exclusion of Key Kinds of Governmental D am ages ................................ 931 E. General Private Suits for Multiple Damages ..... 932 William J. and Dorothy O'Neill Professor of Law, Notre Dame Law School. A.B., 1957, J.D., 1960, University of Notre Dame. ** B.S., Bradley University, 1988; Candidate for J.D., University of Notre Dame, 1991. VANDERBILT LAW REVIEW [Vol. 43:851 1. W ho Can Sue ............................ 933 2. Conduct for Which Suit May Be Brought .. 934 a. Insider Trading .................... 934 b. Consumer Fraud ................... 937 c. Against Whom Suit May Be Brought 940 d. Remedy Authorized ................. 942 F. Personal Injury Private Suits for Multiple Dam- ages .......................................... 945 1. Limitation to Immediate Serious Bodily In- jury ..................................... 946 2. Limitation to Crime of Violence Narrowly D efined ................................. 947 3. Limitation to Elements of Violation ........ 947 4. Limitation to Damage Excluding Pain and Suffering Allowable Under Applicable State L aw ..................................... 949 5. Limitation of Punitive Damages by a Special Standard and Burden of Proof ............ 949 G. Limitation on Order of Proof ................... 950 H. Treble Damages for Injury to Business or Property After Criminal Conviction ...................... 951 L". Statute of Limitations ......................... 952 J. Affirmative Defense for Good Faith and Limitation on Discovery .................................. 953 K. Pleading with Particularity........... .......... 954 L. Abatement and Survival ............. .......... 955 M . Racketeer Label ..................... .......... 955 N . Definitions .......................... .......... 956 0. International Service of Process ...... .......... 957 P. Exclusive Jurisdiction ............... .......... 957 Q. Stylistic Amendment ................ .......... 959 R. Retroactivity ........................ .......... 959 S. P attern ............................. .......... 961 T. Parens Patriae ...................... .......... 968 U. Prejudgment Interest ................ .......... 968 V. Resolution or Clarification of Issues in Conflict . 968 W. Discovery and Findings in Arbitration.......... 974 X. Demonstration Related Litigation Abuse ....... 975 Y. Necessities and Forfeiture..................... 977 Z. Labor Disputes ............................... 978 IV. CONCLUSION ....................................... 979 1990] RICO MYTHS 853 "Myth: a belief given uncritical acceptance .... "t "When liberty is mentioned, we must always be careful to observe whether it is not really the assertion of private interests which is thereby designated."tt I. INTRODUCTION In 1970 Congress enacted the Organized Crime Control Act, Title IX of which is known as the Racketeer Influenced and Corrupt Organi- zations Act, or RICO.1 Congress enacted the 1970 Act to "strengthen[] the legal tools in the evidence-gathering process, [to] establish[] new penal prohibitions, and [to] provid[e] enhanced sanctions and new rem- t WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1497 (1981). tt G. HEGEL, THE PHILOSOPHY OF HISTORY pt. 4, § 3, ch. 2, at 430 (1900). 1. Racketeer Influenced and Corrupt Organizations Act, Pub. L. No. 91-452, tit. IX, 84 Stat. 922, 941 (1970) [hereinafter RICO] (codified at 18 U.S.C. §§ 1961-1968 (1988)). The law review and related commentary on RICO is extensive. The Supreme Court in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 481 n.2 (1985) termed the bibliography in Milner, A Civil RICO Bibliography, 21 CAL. W.L. REv. 409 (1985), "thorough." For the best general treatments of the statute from a vari- ety of perspectives, see generally CRIMINAL Div., U.S. DEP'T OF JUSTICE, RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS (RICO): A MANUAL FOR FEDERAL PROSECUTORS (2d rev. ed. 1988); CRIMI- NAL Div., U.S. DEP'T OF JUSTICE, CIvIL RICO: A MANUAL FOR FEDERAL PROSECUTORS (1988); Blakey, The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg, 58 NOTRE.DAME L. REV. 237 (1982); Blakey & Cessar, Equitable Relief Under Civil RICO: Reflections on Religious Tech- nology Center v. Wollersheim: Will Civil RICO Be Effective Only Against White-Collar Crime?, 62 NOTRE DAME L. REV. 526 (1987); Blakey & Gettings, Racketeer Influenced and Corrupt Organiza- tions (RICO): Basic Concepts-Criminaland Civil Remedies, 53 TEMP. L.Q. 1009 (1980); Blakey & Goldstock, On the Waterfront: RICO and Labor Racketeering, 17 AM. CRiM. L. REV. 341 (1980); Bradley, Racketeers, Congress, and the Courts: An Analysis of RICO, 65 IOWA L. REV. 837 (1980); Tarlow, RICO: The New Darling of the Prosecutor's Nursery, 49 FORDHAM L. REV. 165 (1980); Tarlow, RICO Revisited, 17 GA. L. REv. 291 (1983); see also Lynch, RICO: The Crime of Being a Criminal (pts. 1-4), 87 COLUM. L. REv. 661 (1987); Goldsmith, RICO and EnterpriseCriminality: A Response to Gerard E. Lynch, 88 COLUM. L. REv. 774 (1988); Lynch, A Reply to Michael Gold- smith, 88 COLUM. L. REV. 802 (1988). For the most consistently thoughtful student works, see Note, "Mother of Mercy-Is This the End of RICO?"--Justice Scalia Invites Constitutional Void for Vagueness Challenge to RICO Pattern, 65 NOTRE DAME L. REv. (forthcoming 1990); Note, Who Should Pay When Federally Insured Pension Funds Go Broke?-A Strategy for Recovering from Wrongdoers, 65 NOTRE DAME L. REv. 310 (1990) [hereinafter Note, Who Should Pay]; Note, Func- tions of the RICO Enterprise Concept, 64 NOTRE DAME L. REV. 646 (1989) [hereinafter Note, Functions]; Note, Innocence by Association: Entities and the Person-Enterprise*Rule Under RICO, 63 NOTRE DAME L. REv. 179 (1988) [hereinafter Note, Innocence by Association]; Note, Attorney Fee Forfeiture Under the Comprehensive Forfeiture Act of 1984: If It Works, Don't Fix It, 63 NOTRE DAME L. REV. 535 (1988); Note, Reconsideration of Pattern in Civil RICO Offenses, 62 NOTRE DAME L. REV. 83 (1986) [hereinafter Note, Reconsideration of Pattern]; Note, Treble Damages Under RICO: Characterizationand Computation, 61 NOTRE DAME L. REV. 526 (1986) [hereinafter Note, Treble Damages]; Note, A Uniform Limitations Periodfor Civil RICO, 61 No- TRE DAME L. REV. 495 (1986); Note, Civil RICO: Prior Criminal Conviction and Burden of Proof, 60 NOTRE DAME L. REV. 566 (1985) [hereinafter Note, Burden of Proof]; Note, The Availability of Equitable Relief in Civil Causes of Action in RICO, 59 NOTRE DAME L. REv. 945 (1984); Note, RICO and the Predicate Offenses: An Analysis of Double Jeopardy and Verdict Consistency Problems, 58 NOTRE DAME L. REv. 382 (1982); Note, Conspiracy to Violate RICO: Expanding Traditional Conspiracy Law, 58 NOTRE DAMS L. REV. 587 (1983). 854 VANDERBILT LAW REVIEW [Vol. 43:851 edies . ,,2RICO covers violence, the provision of illegal goods and services, corruption in labor or management relations, corruption in government, and commercial fraud.3 Congress found in 1970 that the sanctions and remedies available to combat these crimes under the law then in force were unnecessarily limited in scope and impact.4 Conse- quently, it provided a wide range of new criminal and civil sanctions to control these offenses, including imprisonment, forfeiture,
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