Cite as: 521 U. S. 179 (1997)
Opinion of Scalia, J.
guess which of the three to follow; and in all of the Circuits no one will know for sure which rule is right—until, at some future date, we receive briefing and argument a third or fourth time, and finally summon up the courage to "unravel," as one commentator has put it, "the mess that characterizes civil RICO accrual decisions," Abrams, Crime Legislation and the Public Interest: Lessons from Civil RICO, 50 SMU L. Rev. 33, 70 (1996).
Worse still, the reason the Court gives for regarding the
accrual issue as too complex ("subtle and difficult," ante, at 192) to be decided on only the second try is a reason that implicates the merits, and that in my view gets the merits wrong. One cannot, the Court says, leap impetuously to the conclusion that the antitrust "injury" accrual rule applies, rather than a "discovery" accrual rule, because civil RICO cases are unlike antitrust cases, in that "a high percentage" of them "involve fraud claims." Ante, at 191. This erases, it seems to me, the one clear path back out of the current forest of confusion, which is the proposition that RICO is similar to the Clayton Act. This is the proposition that caused us to adopt the Clayton Act statute of limitations in the first place, specifically rejecting the argument the Court now finds plausible, that the preponderance of fraud claims under RICO makes the Clayton Act an inappropriate model. We said the similarity was close enough: "Although the large majority of civil RICO complaints use [fraud] as the required predicate offenses, a not insignificant number of complaints allege criminal activity of a type generally associated with professional criminals such as arson, bribery, theft and political corruption." Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 149 (1987) (rejecting for this reason the use of state-law fraud statutes of limitations). Elsewhere in today's opinion, curiously enough, the Court is quite willing to say that what is good for antitrust is good for RICO—even with respect to a matter much more intimately connected with fraud than the accrual rule, namely, whether
197
Page: Index Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: October 4, 2007