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85 Tul. L. Rev. 677 (2010-2011)

handle is hein.journals/tulr85 and id is 683 raw text is: Clarity and Confusion: RICO's Recent Trips to the United States Supreme Court Randy D. Gordon* The complicated structumr ofthe Racketeer Influenced and Corrupt Organization Act has bedeviled courts and litgants since its adoption four decades ago. Two questions have recurred with some fwquency Fist is victim reliance an element of a civd RICO claim pedicated on allegations offraud? Second what is the dfference between an illegal association-in-fact and an ordinary civil conspiracy? In a sedes of three cent cases, the United States Supreme Court brought much needed cladty to the tu-stquestion. Butin anotherrecent case, the Court upended decades of cheuit-court prcedent holdig that an actionable association-in-fact must embody a set of structual attabutes that would not ordhiarly be present in a conspiracy 7his Aricle analyzes these new cases, puts them in histoncal context and discusses their likely ramifcations forcivilRICOlitigadon. I. INTRODUCTION. ................................ ..... 678 II. UNTANGLING RICO............................678 III. PROXIMATE CAUSATION AND THIRD-PARTY RELIANCE: HOLAlES, ANZA, BRIDGE, AND HE .......... .......682 A. The General Standard for Proof of Causation ProvidedbyHolmes .................... ....682 B. Defining the Relationship Between Reliance and Causation: Anza.......................... 685 C Redefhnnlg the Relationship Between Reliance and Causation: Bridge .................................. 689 1. Reliance Under Bridge............... ......692 2. (Over)Applying Reliance Under Bridge..................697 D Revisiting Causation and Thid-Party Reliance: Hemi..................................698 IV RELAXING THE RICO ENTERPRISE ELEMENT UNDER BOYLE............................... . .......701 A. The Courth Analysis in Boyle ..................703 * © 2011 Randy D. Gordon. Ph.D., University of Edinburgh; LL.M., Columbia University School of Law; J.D., Washburn University School of Law; Ph.D., M.A., B.A., University of Kansas. Partner with the firm of Gardere Wynne Sewell LLP, adjunct faculty member in law and English at Southern Methodist University. The author wishes to thank Tate L. Hemingson, Ph.D., his research assistant and a student at the Dedman School of Law at SMU, for his considerable contribution to the authorities cited below. And thanks also to Sam Joyner, a firm colleague, for his helpful analysis of the Anza, Twombly, and Iqbalcases discussed below. The views expressed in this Article are the author's alone and do not necessarily represent those of the firm or its clients. 677

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