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In Booker'S Shadow: Restitution Forces A Second Debate On Honesty In Sentencing, Melanie D. Wilson Jan 2006

In Booker'S Shadow: Restitution Forces A Second Debate On Honesty In Sentencing, Melanie D. Wilson

Scholarly Articles

The Supreme Court's January 2005 decision in Booker should induce Congress to enact legislation to remedy the constitutional invalidity of the MVRA and encourage the Department of Justice to revisit how restitution is charged, indicted, negotiated in plea agreements, proven at trial, and presented at sentencing hearings. The Booker decision is also a reminder to lower federal courts to adhere to the rule announced by the Supreme Court in Hughey v. United States, which limits the reach of orders of restitution. Congress, DOJ, and the federal courts should insist on candor in charging and sentencing to remedy the restitution …


In Booker's Shadow: Restitution Forces A Second Debate On Honesty In Sentencing, Melanie Wilson Jan 2006

In Booker's Shadow: Restitution Forces A Second Debate On Honesty In Sentencing, Melanie Wilson

Scholarly Works

This article explores the question left unanswered by the Supreme Court's January, 2005, decision in United States v. Booker. Specifically, it looks at whether the Mandatory Victims Restitution Act of 1996 (MVRA), which governs restitution in federal criminal cases, violates the Sixth Amendment. The MVRA expressly requires that judges, rather than juries, decide issues of restitution. The process mandated by the MVRA often results in orders of restitution that are much harsher than a defendant could have reasonably predicted from the indictment, the evidence presented at trial, and/or the defendant's admission of guilt. This article concludes that such unexpected consequences …


Tracing, Peter B. Oh Jan 2006

Tracing, Peter B. Oh

Articles

Tracing is a method that appears within multiple fields of law. Distinct conceptions of tracing, however, have arisen independently within securities and remedial law. In the securities context plaintiffs must trace their securities to a specific offering to pursue certain relief under the Securities Act of 1933. In the remedial context victims who trace their misappropriated value into a wrongdoer's hands can claim any derivative value, even if it has appreciated.

This article is the first to compare and then cross-apply tracing within these two contexts. Specifically, this article argues that securities law should adopt a version of the rules-based …


To Err Is Human, Keith A. Rowley Jan 2006

To Err Is Human, Keith A. Rowley

Scholarly Works

This essay reviews Allan Farnsworth's final book, Alleviating Mistakes: Reversal and Forgiveness for Flawed Perceptions (Oxford U. Press 2004). There are many kinds of mistakes. One kind - a rational, well-intended decision or act that results in unanticipated, negative consequences - was the principal subject of Allan Farnsworth's previous foray into the realm of contractual angst: Changing Your Mind: The Law of Regretted Decisions (Yale U. Press 1998). Another kind - the subject of this book - is a mistake caused by an inaccurate, incomplete, or incompetent mental state at the time of an act or decision that results in …