Law Commons^™

Congress, The Federal Courts, And Forum Non Conveniens: Friction On The Frontier Of The Inherent Power, Elizabeth T. Lear

Elizabeth T Lear

The federal forum non conveniens regime has many flaws; its most serious, however, is its lack of constitutional support. Founded upon the inherent authority of Article III, the forum non conveniens doctrine is an outlier, residing in the area over which Congress retains plenary control. The Court has long treated the forum non conveniens dismissal power as the norm against which Congress legislates. This Article argues that the time has come to reconsider this interpretive approach. In the case of peripheral inherent power rules like forum non conveniens, the prevailing presumption should be reversed. The Court, rather than Congress, should …

Double Jeopardy, The Federal Sentencing Guidelines, And The Subsequent-Prosecution Dilemma, Elizabeth T. Lear

Elizabeth T Lear

The choice to embrace a real-offense regime probably constitutes the single most controversial decision made by the Federal Sentencing Commission in drafting the Federal Sentencing Guidelines ("Guidelines"). Real-offense sentencing bases punishment on a defendant's actual conduct as opposed to the offense of conviction. The Guidelines sweep a variety of factors into the sentencing inquiry, including criminal offenses for which no conviction has been obtained. Under the Guidelines, therefore, prosecutorial charging decisions and even verdicts of acquittal after jury trial may have little impact at sentencing.

Long before the adoption of the Guidelines, courts bent on rationalizing the real-offense regime devised …

Is Conviction Irrelevant?, Elizabeth T. Lear

Elizabeth T Lear

Since 1986, the country has been witness to a revolution in federal sentencing practice: indeterminate sentencing, dominated by discretion and focused on the rehabilitative prospects of the offender, has been replaced by guidelines infused with offense-based considerations. As sweeping as the change in sentencing procedure has been, the system retains troubling aspects of the former regime. The most controversial among these is the Guidelines' reliance on unadjudicated conduct to determine proper punishment levels. This approach is a variation on “real offense” sentencing, which severs the punishment inquiry from the offense of conviction, focusing instead on an offender's "actual" conduct. Under …