After many years of effort, Congress actually may amend substantively the civil provisions of the Racketeer Influenced and Corrupt Organizations Act'-"RICO"-this year.' So I am delighted to accept the timely invitation of the Vanderbilt Law Review to add my view of how the law should be revised.My RICO perspective comes from my years as a federal district court judge in Chicago from 1980 to 1987, when I witnessed the real birth and growth of civil RICO.'
I am told by my co-panelist, Professor G. Robert Blakey, that for a time I had written more RICO opinions than any other judge in the country. (This had nothing to do with my decision to leave the bench.) As I dealt with these cases, it became clear to me that most civil RICO cases simply should not be in federal court.The majority of civil RICO cases involve commonplace commercial controversies, the facts of which reveal an ordinary business relationship gone sour. These mercantile melees are recharacterized by resourceful attorneys to conform with the requirements of RICO: adding a few allegations of the use of the mails or wires in furtherance of a fraudulent scheme, describing how the mail or wire fraud offenses form a pattern,and explaining how the defendants conducted the affairs of an appropriate enterprise. Thus transmogrified, the ordinary state law fraud or contract action becomes a federal "racketeering" case, threatening treble damages, costs, and attorney's fees. Not only is this transformation unfair to the typical commercial defendant, but it also burdens the dockets of the federal courts and multiplies the legal costs for both sides in otherwise straightforward litigation. Civil RICO is not intrinsically evil, however. It was designed to enable private plaintiffs to bring civil actions against persons engaged in a pattern of criminal activity. This intention is admirable, and RICO has succeeded in facilitating such civil actions. No one has claimed that the civil provision of the statute has failed to achieve its goal. The complaint is that civil RICO has succeeded too well.
Judicial "Pruning" of "Garden Variety Fraud" Civil RICO Cases Does Not Work: It's Time for Congress to Act,
43 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol43/iss3/5