National Interests, Foreign Injuries, and Federal Forum Non Conveniens

This Article argues that the federal forum non conveniens doctrine subverts critical national interests in international torts cases. For over a quarter century, federal judges have assumed that foreign injury cases, particularly those filed by foreign plaintiffs, are best litigated abroad. This assumption is incorrect. Foreign injuries caused by multinational corporations who tap the American market implicate significant national interests in compensation and/or deterrence. Federal judges approach the forum non conveniens decision as if it were a species of choice of law, as opposed to a choice of forum question. Analyzing the cases from an adjudicatory perspective reveals that in the case of an American resident plaintiff injured abroad, an adequate alternative forum seldom exists; each time a federal court dismisses such a claim, the American interest in compensation is irrevocably impaired. With respect to deterrence, an analysis focusing properly on adjudicatory factors demonstrates that excluding foreign injury claims, even those brought by foreign plaintiffs, seriously undermines our national interest in deterring corporate malfeasance

National Interests, Foreign Injuries, and Federal Forum Non Conveniens

This Article argues that the federal forum non conveniens doctrine subverts critical national interests in international torts cases. For over a quarter century, federal judges have assumed that foreign injury cases, particularly those filed by foreign plaintiffs, are best litigated abroad. This assumption is incorrect. Foreign injuries caused by multinational corporations who tap the American market implicate significant national interests in compensation and/or deterrence. Federal judges approach the forum non conveniens decision as if it were a species of choice of law, as opposed to a choice of forum question. Analyzing the cases from an adjudicatory perspective reveals that in the case of an American resident plaintiff injured abroad, an adequate alternative forum seldom exists; each time a federal court dismisses such a claim, the American interest in compensation is irrevocably impaired. With respect to deterrence, an analysis focusing properly on adjudicatory factors demonstrates that excluding foreign injury claims, even those brought by foreign plaintiffs, seriously undermines our national interest in deterring corporate malfeasance

Double Jeopardy, the Federal Sentencing Guidelines, and the Subsequent-Prosecution Dilemma

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\u27s 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 a convenient yet dangerous fiction in the form of the “punishment-enhancement” distinction. According to this theory, a sentence enhancement does not constitute punishment. The distinction is particularly convenient in the double jeopardy setting. According to the Supreme Court, double jeopardy “protects against a second prosecution for the same offense after acquittal[,] . . . a second prosecution for the same offense after conviction[, and] . . . against multiple punishments for the same offense.” Because a defendant whose sentence is “enhanced” for an unadjudicated crime is neither “punished” nor tried for that offense, the Double Jeopardy Clause is not technically implicated. This Article takes issue with the “prior-conviction analogy,” rejecting the notion that prior convictions and unadjudicated crimes are sufficiently similar to warrant equal treatment under the Constitution. Part I of this Article uses McCormick to illustrate the subsequent-prosecution dilemma under the Guidelines, describes the Second Circuit\u27s solution, and discusses the traditional response to the problem. Part II questions the prior-conviction analogy, concluding that prior conviction enhancements are entirely consistent with the history and underlying values of the Double Jeopardy Clause. Part II concludes that the Second Circuit was correct in holding that relevant conduct enhancements under the Guidelines comprise constitutionally cognizable punishment. Part III recognizes, however, that accurately characterizing a sentence enhancement as punishment does not automatically catapult the subsequent prosecution into a double jeopardy violation. Traditional double jeopardy jurisprudence does not conform gracefully to the sentencing context. In fact, a close analysis of the Second Circuit\u27s approach suggests that the lack of a conviction for the relevant conduct offense in the original proceeding renders the Double Jeopardy Clause incompetent to protect its central purposes. Part IV concludes that the Second Circuit chose the wrong constitutional remedy. The Double Jeopardy Clause is not designed to address the subsequent-prosecution problem in the sentencing context. It is the Due Process Clause that forbids enhancement in the absence of conviction in the first place. Part IV therefore urges the courts and the Federal Sentencing Commission to abandon the real-offense model once and for all

Contemplating the Successive Prosecution Phenomenon in the Federal System

Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule. The dialogue has centered on the meaning of the “same offence” language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged. However, the Supreme Court, in United States v. Dixon, abandoned as “unworkable” a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin. This Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is necessary to determine the absolute dollar costs of repeat prosecution, this Article concentrates on the opportunities to abuse power that the current approach leaves open to federal prosecutors. In addition, this Article does not precisely define the “transaction rule.” The purpose of this Article is not to offer yet another definition of the criminal transaction but to explore the implications of imposing any compulsory joinder requirement on the federal system. Thus, the “transaction rule” discussed herein generically denotes a factually-driven joinder requirement that might range in scope from the conduct formula embraced in Grady v. Corbin to a sweeping mandate that prosecutors include all joinable offenses “which substantially overlap” in a single indictment. This Article revisits the “transaction” rule debate in the context of a hypothetical statutory joinder requirement for the federal system. Section II considers the sources of repeat prosecution in the federal arena, the impact of the Federal Sentencing Guidelines on prosecutorial charging behavior, and the costs traditionally attributed to successive prosecution. Section III examines the arguments in favor of and against a statutorily-imposed compulsory joinder approach, questioning whether either the definitional uncertainties of a transaction rule or the political benefits of the current approach are worth the individual and systemic costs inherent in an unchecked reprosecution power. Section IV offers preliminary observations on issues that must be resolved if compulsory joinder of any variety is to succeed in the federal environment

Double Jeopardy, the Federal Sentencing Guidelines, and the Subsequent-Prosecution Dilemma

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\u27s 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 a convenient yet dangerous fiction in the form of the “punishment-enhancement” distinction. According to this theory, a sentence enhancement does not constitute punishment. The distinction is particularly convenient in the double jeopardy setting. According to the Supreme Court, double jeopardy “protects against a second prosecution for the same offense after acquittal[,] . . . a second prosecution for the same offense after conviction[, and] . . . against multiple punishments for the same offense.” Because a defendant whose sentence is “enhanced” for an unadjudicated crime is neither “punished” nor tried for that offense, the Double Jeopardy Clause is not technically implicated. This Article takes issue with the “prior-conviction analogy,” rejecting the notion that prior convictions and unadjudicated crimes are sufficiently similar to warrant equal treatment under the Constitution. Part I of this Article uses McCormick to illustrate the subsequent-prosecution dilemma under the Guidelines, describes the Second Circuit\u27s solution, and discusses the traditional response to the problem. Part II questions the prior-conviction analogy, concluding that prior conviction enhancements are entirely consistent with the history and underlying values of the Double Jeopardy Clause. Part II concludes that the Second Circuit was correct in holding that relevant conduct enhancements under the Guidelines comprise constitutionally cognizable punishment. Part III recognizes, however, that accurately characterizing a sentence enhancement as punishment does not automatically catapult the subsequent prosecution into a double jeopardy violation. Traditional double jeopardy jurisprudence does not conform gracefully to the sentencing context. In fact, a close analysis of the Second Circuit\u27s approach suggests that the lack of a conviction for the relevant conduct offense in the original proceeding renders the Double Jeopardy Clause incompetent to protect its central purposes. Part IV concludes that the Second Circuit chose the wrong constitutional remedy. The Double Jeopardy Clause is not designed to address the subsequent-prosecution problem in the sentencing context. It is the Due Process Clause that forbids enhancement in the absence of conviction in the first place. Part IV therefore urges the courts and the Federal Sentencing Commission to abandon the real-offense model once and for all

Is Conviction Irrelevant?

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\u27 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\u27s actual conduct. Under the Guidelines, the real offense often encompasses acts prohibited by criminal statute that have never been the subject of a formal conviction. This Article challenges the constitutionality of treating such unconvicted criminal conduct as an aggravating factor at sentencing. Part I of this Article briefly describes the adoption of the Guidelines model, discusses the decision to rely on nonconviction crimes at sentencing, and illustrates the operation of principal provisions by which nonconviction offenses are incorporated into the Guidelines scoring process. Part II examines Supreme Court and courts of appeals cases rejecting constitutional challenges to punishment for unconvicted criminal conduct. Part III argues that the prevailing due process analysis of nonconviction offense sentencing must be rejected, not as a result of any change in sentencing philosophy, but because it was wrong in the first instance. Using the Guidelines as a paradigm for systems embracing nonconviction offense sentencing, Part III demonstrates the disruptive effect punishment absent conviction has upon the structure and integrity of the criminal justice system through the classic jury trial model. The Article concludes that sentencing factors encompassing conduct separately proscribed by criminal statute must be excised from the Guidelines system as unconstitutional

Contemplating the Successive Prosecution Phenomenon in the Federal System

Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule. The dialogue has centered on the meaning of the “same offence” language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged. However, the Supreme Court, in United States v. Dixon, abandoned as “unworkable” a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin. This Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is necessary to determine the absolute dollar costs of repeat prosecution, this Article concentrates on the opportunities to abuse power that the current approach leaves open to federal prosecutors. In addition, this Article does not precisely define the “transaction rule.” The purpose of this Article is not to offer yet another definition of the criminal transaction but to explore the implications of imposing any compulsory joinder requirement on the federal system. Thus, the “transaction rule” discussed herein generically denotes a factually-driven joinder requirement that might range in scope from the conduct formula embraced in Grady v. Corbin to a sweeping mandate that prosecutors include all joinable offenses “which substantially overlap” in a single indictment. This Article revisits the “transaction” rule debate in the context of a hypothetical statutory joinder requirement for the federal system. Section II considers the sources of repeat prosecution in the federal arena, the impact of the Federal Sentencing Guidelines on prosecutorial charging behavior, and the costs traditionally attributed to successive prosecution. Section III examines the arguments in favor of and against a statutorily-imposed compulsory joinder approach, questioning whether either the definitional uncertainties of a transaction rule or the political benefits of the current approach are worth the individual and systemic costs inherent in an unchecked reprosecution power. Section IV offers preliminary observations on issues that must be resolved if compulsory joinder of any variety is to succeed in the federal environment

Congress, the Federal Courts, and Forum Non Conveniens: Friction on the Frontier of the Inherent Power

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 bear the burden of ensuring that judicially-crafted doctrines are consistent with legislative policy goals. Applying this more deferential analysis exposes significant friction between congressional regulatory decisions and the Court\u27s forum non conveniens regime. First, the comprehensive congressional venue scheme already provides for the run-of-the-mill transnational case to which the forum non conveniens doctrine is routinely applied. Second, countless federal statutes regulate extraterritorial conduct; when a federal court declines on forum non conveniens grounds to adjudicate a federal question case, it rides roughshod over the congressional decision that the conduct at issue deserves federal attention. Third, the doctrine is at odds with the Rules Enabling Act on two fronts. By eschewing the rulemaking process set forth in the Act, the Court evades the congressional oversight envisioned by the legislation. Similarly, the Court has failed to respect the division of law making authority envisioned in Section 2072(b) of the Act. The substance/procedure line provides a good proxy for congressional permission to regulate. The forum non conveniens regime steps over that line. Lastly, proper application of the Rules of Decision Act suggests that the federal courts are mistaken in failing to apply some subset of state forum non conveniens rules in federal diversity actions. But that conclusion brings us full circle. Once we recognize the inherent authority does not support the forum non conveniens dismissal, the Rules of Decision Act problem evaporates. The congressional court access regime occupies the field rendering conflicting state rules irrelevant

Dangerous Offenders: The Elusive Target of Justice

A Review of Dangerous Offenders: The Elusive Target of Justice by Mark H. Moore, Susan Estrich, Daniel McGillis, and William Spelma