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31 Loy. U. Chi. L.J. 639 (1999-2000)
RICO and the Legislative Supremacy Approach to Federal Criminal Lawmaking

handle is hein.journals/luclj31 and id is 649 raw text is: RICO and the Legislative Supremacy Approach to Federal Criminal Lawmaking Brian Slocum* I. INTRODUCTION In interpreting the Racketeer Influenced and Corrupt Organizations Act (RICO), the United States Supreme Court has not utilized a coherent jurisprudence that would produce consistent results when faced with unclear1 criminal statutes. The failure of the Supreme Court to engage in a consistent jurisprudence, or to recognize the undefined nature of RICO's statutory language,2 has resulted in the almost unlimited reach of RICO. The Court's inconsistent jurisprudence could further encourage Congress to promulgate unclear criminal statutes and thereby delegate power to the judiciary to define rules of criminal law.3 This Article will discuss the criminal aspects of RICO as part of a broader analysis of how courts should respond when Congress enacts unclear criminal statutes. This Article presents three possible approaches to the problem of unclear criminal statutes. The first, a common law approach, directs Brian Slocum graduated, cum laude, from Harvard Law School in 1999. Currently, he is clerking for Judge Frank Magill on the United S.tates Court of Appeals for the Eighth Circuit. The author wishes to thank Professor David Shapiro and Ryan Johnson for their helpful sugges- tions. 1. I use the term unclear as a synonym for indeterminate in referring to statutes that are vague and/or ambiguous. See Jeremy Waldron, Vagueness in Law and Language: Some Philoso- phical Issues, 82 CAL. L. REV. 509, 512 (1994) (commenting that the term indeterminacy in- cludes the three distinct terms, ambiguity, contestability, and vagueness). 2. See infra Part III (discussing the Supreme Court's incoherent approach to interpreting RICO). 3. See Dan M. Kahan, Reallocating Interpretive Criminal-Lawmaking Power Within the Ex- ecutive Branch, 61-WTR L. & CONTEMP. PROBS. 47, 47 (1998) (Once content to leave the bulk of criminal lawmaking to the states, Congress now reacts convulsively to every species of wrong- doing that captures public attention, whether it be carjacking, child molestation, or celebrity stalking.). Moreover, many states enact criminal statutes that model similar federal statutes. See Jason D. Reichelt, Note, Stalking the Enterprise Criminal: State RICO and the Liberal Interpre- tation of the Enterprise Element, 81 CORNELL L. REV. 224, 225 (1995) (noting that 29 states have enacted their own RICO statutes, with only minor changes from federal RICO, since Congress passed RICO in 1970).