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Will The Real Mens Rea Please Stand Up: Assessing The Fifth Circuit’S Kickback Jurisprudence After United States V. Nora, John J. Locurto
Will The Real Mens Rea Please Stand Up: Assessing The Fifth Circuit’S Kickback Jurisprudence After United States V. Nora, John J. Locurto
St. Mary's Law Journal
Many criminal statutes require willful misconduct, yet willfulness remains an elusive concept. Its meaning and application depend as much on the outcome a court desires as the definition or legal standard a court claims to apply. Ambiguity in the required mens rea is an age-old problem with a venerable pedigree in the circuits and Supreme Court. This article considers anew the struggle to define “willfully” as that term is used in the Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7b, one of the federal government’s key weapons against health care fraud.
When it decided United States v. Nora and reversed the …