Friday, May 23, 2008
Henning on the History of the Mail Fraud Statute
Posted by Mary L. Dudziak
Peter J. Henning, Wayne State University Law School, has posted an article, Maybe it Should Just Be Called Federal Fraud: The Changing Nature of the Mail Fraud Statute. It appeared in the Boston College Law Review (1995). Here's the abstract: This Article reviews the history of the mail fraud statute and the provisions early relationship to protecting the mails from misuse. It then analyzes the Supreme Court's contradictory opinions that have sought to explain the relationship between the fraudulent scheme and the mailing. The Article evaluates the effect of Congress's two most recent amendments to the statute: first, a new statute that in large part overturned the Supreme Court's restrictive interpretation in McNally of the scheme to defraud element by the adoption the right of honest services provision; second, a 1994 amendment that sheds the last vestige of limitation on the mail fraud statute to protect the integrity of the mails. The Article addresses important interpretive issues that courts should consider in determining how far Congress intended to extend federal jurisdiction over fraudulent schemes. I recommend the proper scope of federal jurisdiction for fraudulent schemes involving the use of interstate carriers that comports with the language chosen by Congress in expanding the statute. I conclude that Congress has effectively enacted the Federal Fraud Statute without debate or even consideration of the need for such a provision.