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Full-Text Articles in Law

A Fatally Flawed Proxy:The Role Of “Intended Loss” In The U.S. Sentencing Guidelines For Fraud, Daniel S. Guarnera Jun 2016

A Fatally Flawed Proxy:The Role Of “Intended Loss” In The U.S. Sentencing Guidelines For Fraud, Daniel S. Guarnera

Missouri Law Review

This Article provides the first extended analysis of the new intended loss provision, and it does so primarily through the framework of rules and standards. Generally speaking, a rule is “framed in terms of concepts that can be applied without explicit reference to the principles or policies that might have motivated the rule, usually by specifying operative facts that trigger the rule.” In contrast, the use of standards “involve[s] recourse to justificatory principles or policies, mediated by some form of balancing that does not specify in advance the result thereof.” For example, a law prohibiting driving over sixty-five miles ...


Booker's Ironies, Ryan W. Scott Jan 2016

Booker's Ironies, Ryan W. Scott

Articles by Maurer Faculty

No abstract provided.


What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas Jan 2016

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship at Penn Law

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended ...