Remedying Skilling

Larry Ribstein —  15 August 2011

The WSJ comments on bills in Congress to “remedy” the Supreme Court’s decision in U.S. v. Skilling by explicitly criminalizing agent conduct that doesn’t involve bribery or kickbacks:

The biggest objection to such laws is their injustice, but they also harm the economy by introducing legal uncertainty that deters or delays business investment. A Congress that claims to care about job creation would drop these attempts to undermine a wise and unanimous Supreme Court decision.

I would also call attention to the significant prosecutorial misconduct that has been associated with these bringing these cases. As discussed in my Agents Prosecuting Agents, it is difficult to effectively discipline this misconduct.  We should therefore consider another option: being more careful about what gets criminalized.  Our politicians should balance the significant costs imposed by the public’s agents (i.e., prosecutors) against the benefits of adding criminal sanctions to the many other ways of disciplining breach of fiduciary duty by corporate agents.

Congress clearly has better things to “remedy” than Skilling.

Larry Ribstein


Professor of Law, University of Illinois College of Law

One response to Remedying Skilling

    William Nuesslein 16 August 2011 at 4:46 am

    I like the concept of a crime being a particular bad act, at a particular time, and at a particular place, so that being born a Jew would not be a crime nor would just being disliked. Just the consideration of fixing Skilling is chilling.