Volume 2011, No. 1

 


Address
Abraham Lincoln: A Lawyer “For the Ages”

John S. Skilton

From the Prairie to the Presidency–And Beyond


Article
Criminalizing the Denial of Honest Services After Skilling

Elizabeth R. Sheyn

This Article analyzes the U.S. Supreme Court’s recent and groundbreaking decision in Skilling v. United States, which limited the application of the honest-services-fraud statute to schemes to defraud involving bribes or kickbacks. Most significantly, the Court rejected the

notion that the statute applied to “undisclosed self-dealing by a public official or private employee—i.e., the taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty.” The Skilling Court called on Congress to “speak more clearly” if it desired the statute “to go further.”

Further, this Article strives to provide an outline of the new honest-services statute that Congress should enact to replace the current, eviscerated statute. In doing so, it first traces the development of the intangible-rights theory from its inception until present day. Then, it analyzes the Court’s decision in Skilling. In light of Skilling, this Article examines the potential alternative means through which the government can pursue criminal conduct relating to the denial of honest services. Finally, this Article evaluates the cases that the new honest-services-fraud statute should address, provides recommendations for reform of the statute, and applies these recommendations to a recently proposed statute—the Honest Services Restoration Act.


Comment
The Amazing Spider-Man: Trapped in the Tangled Web of the Termination Provisions

Vincent James Scipior

With great power there must also come—copyright reclamation!? A New York federal judge recently ruled that the heirs of legendary comic book artist Jack Kirby have asserted potentially valid copyright-termination claims against Marvel Comics. If successful in their claims, the heirs will recapture their father’s rights to many of Marvel’s most popular characters,

including “The Amazing Spider-Man,” “The Fantastic Four,” “The XMen,” “Iron Man,” and “The Incredible Hulk.” In view of these claims, this Comment argues that allowing authors and their heirs to recapture the rights to fictional characters is inconsistent with the fundamental objectives of copyright law. Such claims thwart media companies’ creative efforts, deprive companies of all certainty in their copyright ownership, and threaten public access to popular comic book, television, and movie characters. Accordingly, this Comment proposes that courts use an extended interpretation of the derivative works exception to prevent authors and their heirs from recapturing the rights to fictional characters that owe their commercial and creative success to media companies.