footnote 20 continued The Explosion in Liability Lawsuits is Nothing But a Myth, While RICO was aimed at organized crime, its use "as a weapon against 'white collar crime' is not contrary to the intent of Congress but is in fact one of the 'benefits' Congress saw the Act as providing." Papai v. Cremosnik, 635 F.Supp. 1402, 1411 (N.D. Ill 1986). Writing in 1967, the President's Crime Commission observed: [w]hite-collar crime [is]--[a term] now commonly ... During the last few centuries economic life has Serious erosion of morals accompanies [the white The Challenge of Crime in a Free Society, 47-48 (1967). "Fraud is ... [an] offense whose impact is not Fraud is especially vicious when it attacks, as it York Times, Jan. 9, 1987, p. 21, col. 1, (Van Cleef & Arpels, Inc., jeweler on Fifth Ave. $5 million in sales tax evasion in scam including such prominent people as Leona Helmsley); id. Dec. 16, 1986, p. 1, col. 4 (Bulgari, operator of Pierre Hotel of Fifth Ave., $1.5 million in sales tax evasion; Cartier, jeweler on Fifth Ave., similar conviction). A misplaced concern over crowded dockets ought not result in a judicial rewritting of RICO. Allegations of civil RICO abuse may, if necessary, be dealt with by a vigorous enforcement of 21 21. Previously, no separate statistics on RICO litigation were kept by the Administrative Office of the United States Courts. See generally, Annual Report of the Director of the Administrative Office of the United States Courts (1983). Approximately 250,000 civil cases are, however, filed each year. Id. at 122. Approximately 35,000 criminal prosecutions are brought. Id. at 164. Slightly more than 95,000 of the civil cases involve the United States as plaintiff or defendant; private litigation embraces approximately 145,000 filings, of which 60% is federal question and 40% is diversity litigation. Id. at 121. The principal areas of litigation are recovery of overpayments and enforcement of judgments (41,000), prisoner petitions (26,000), social security (20,000), civil rights (20,000), and labor (11,000). Id. at 122. Antitrust includes 1,200 civil filings, id., and 74 criminal cases. Id. at 164. All forms of extortion, racketeering and threat prosecutions amount to 478. Id. at 320. Securities commodities and exchange related civil filing make up 3,000, id. at 164, and 26 criminal cases. Id. at 245. Accordingly, if most securities and fraud-related cases were also RICO cases, RICO filing would not exceed 5,000, not more than 2% of all federal filings. A study by the Department of Justice, in fact, indicated that of the approximately 500 civil RICO cases brought before July 1985, 65% of them had an independent basis for federal jurisdiction. Trott at 127. More recently, data from the Administrative Office indicates that from September 1985 until June 30, 1986, only 614 civil RICO cases were filed and that 85 had been terminated. In addition, as of June 30, 1986, only 530 were pending. On the so-called litigation explosion generally, see Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. Rev. 4 (1983). existing remedies for general litigation misconduct. 22 CONCLUSION For these reasons, Amici urge this Court to reverse the order of the district court dismissing the complaint. 22. See Goldsmith, Civil RICO Abuse: The Allegations in Context, 1986 B.Y.U. L. Rev 55, 103 ("Upon review ... RICO abuse is not a serious problem for our legal system so long as counsel and courts appreciate the utility of existing remedial procedures. Accordingly, the courts should recognize that abuse arguments are more likely motivated by hostility to the RICO remedy.") As such, it is neither necessary nor constitutional for courts to redraft the legislation. As noted above, Congress, too, is being pressed both to retain and to circumscribe civil RICO. No indication exists that Congress is unable to fulfill its constitutional role. See generally, Note Congress Responds to Sedima: Is There a Contract Out on Civil RICO, 19 Loy. L.A.L. 851 (1986) ("While RICO's private right of action has been something less than a lethal weapon in the war against organized crime, the measure may prove a hero in the war against fraud.") for a comprehensive review of the various arguments and proposals. Re: ACBA Federal Courts Section-Special Report on the Judiciary Dear Ros: At our recent committee meeting I briefly commented on some thoughts I have about the overall approach we should take in making our report to Judge Weis. Essentially, it is my strong feeling that committees such as ours have gotten off on the wrong track by starting with the erroneous assumption that the current high utilization of the courts by the people (and the lawyers who represent them) is somehow wrong or improper. Thus the focus of reports I have read has been on mechanisms by which we can decrease utilization of our judicial system. In other words, how can we keep people and their problems out of the courts? It is my position that the ever burgeoning use of the judicial system is evidence not of societal illness, but of our increasing civility as a nation. Secondly, the monumental increase in the number of cases filed civilly and administratively do not necessarily reflect an overly litigious nature of the people, but rather, the fact that since the founding of the nation we have consciously and deliberately expanded remedies. I take it as a given that in a democratic society it is beneficial to continuously re-examine the rights and interests of citizens as related to their fellow citizens, employers, powerful conglomerations of power and most especially, their government. In engaging in such re-examinations over the years, both the legislatures and the courts have determined it to be in the best interests of the nation to expand the original circle of rights from those which existed at the beginning of the republic which were essentially those embodied in the common law and the Constitution. Thus, for example, in 1776 there was no Federal Tort Claims Act, National Labor Relations Act, Labor Management Reporting and Disclosure Act, Social Security Act, Medicare, Medicaid or ERISA, by way of a few simple examples of monumental social legislation which had the effect of expanding the number and complexity of the rights which an ordinary citizen could exercise. To be sure, the enactment of all these laws placed new burdens on the courts. As any lawyer knows, no law is self-enforcing or self-executing; they all require some system of justice whereby the particular interest may be pressed and secured. I think we would all agree that to enact such laws without providing for a means of securing the rights created thereunder would be an exercise in a type of duplicity which would surely not promote the continuation of the Republic. Nor should we assume that such laws were promulgated as acts of largesse by which power was willingly ceded to the less powerful. Rather, these laws came about as the result of interests hard pressed and secured. That the nation withstood the onslaught of the Bolshevik movement was not an accident in my view. Rather, sensible government granted power demanded by the working class through the National Labor Relations Act, an excellent example of the shifting of power to the less powerful. This was not an act of largesse, but a response to a powerful movement. I believe the same could be said about most of the legislation which has increased the burden on the legal system. (Most noteworthy among these would be the various Civil Rights Acts. One who assumes these new rights were freely granted ignores the tumultuous history of the civil rights movement in the country and does a disservice to the black, female and other minorities). Still other types of legislation which increased the burdens on the courts and our legal system in general came about simply as a result of the need for a sensible people to cope with technological change. Various environmental laws, some regulatory and some pro-active in nature came about to confront technological advances not dreamed of in 1776. Could there be better examples than the Atomic Energy Act (regulatory) and the Uranium Mill Tailings Act (pro-active in the sense that Congress provided funds for a cleanup of uranium waste in order to protect the public health and safety). Toxic chemical laws, the food and drug laws and eventually the so-called Superfund Legislation are more examples of society's legitimate responses to both the threats and benefits occasioned by technological change. |