George Mason University School Research Articles

A Judicious Solution: The Criminal Law Committee Draft Redefinition of the 'Loss' Concept in Economic Crime Sentencing

This Article is one of a group of papers published in connection with the U.S. Sentencing Commission's Third Symposium On Crime and Punishment in the United States: Federal Sentencing Policy for Economic Crimes and New Technology Offenses, hosted by George Mason University School of Law in October 2000. Economic crime defendants comprise over one-fifth of all offenders convicted and sentenced in federal courts. On April 6, 2001, the U.S. Sentencing Commission approved a group of amendments to guidelines governing the sentencing of economic crimes that will go into effect absent a congressional veto on November 1, 2001. These measures, collectively known as the economic crime package, are the culmination of some six years of deliberations by both the Conaboy and Murphy Sentencing Commissions working together with interested outside groups such as the defense bar, the Justice Department, probation officers, and the Criminal Law Committee of the U.S. Judicial Conference. The package contains three basic components. First, the now-separate theft and fraud guidelines, Sections 2B1.1 and 2F1.1, will be consolidated into a single guideline. Second, the loss table in the consolidated guideline will be different from the current theft and fraud loss tables. Third, the troublesome concept of loss, the linchpin of economic crime sentencing under the Guidelines, is redefined. The Criminal Law Committee of the U.S. Judicial Conference (CLC) was a particularly influential participant in the debate over the economic crime package. In order to assist the Sentencing Commission in its deliberations, the CLC submitted to the Commission its own economic crime sentencing reform proposal. The judges recommended: (1) that the theft and fraud guidelines be consolidated; (2) that the loss table be simplified by reducing the number of its levels, and modified by decreasing sentences for some low-loss offenders while increasing sentences for some high-loss offenders; and (3) that loss be redefined. Most importantly, the CLC went beyond general recommendations and transmitted to the Sentencing Commission a specific proposal for a new loss table and draft language for a redefinition of loss. The purpose of this Article is three-fold. First, it explains the need for consolidation of the theft and fraud guidelines and for a revised definition of loss. Second, it introduces the CLC's proposed loss definition and explains, in detail, the reasoning behind the drafting choices made by the judges of the CLC when preparing this proposed new definition. Third, where appropriate, it addresses differences between the CLC proposal and other draft definitions that put forward by Commission staff and other participants in the reform process. The Article is written by the academic advisor to the CLC during the economic crime debate. It is of significance to judges and federal criminal practitioners because the majority of the substantive provisions of the CLC loss proposal were included in the language adopted by the Sentencing Commission. Thus, the CLC proposal and the thinking behind it constitute an important element of the legislative history of new sentencing rules affecting more than 11,000 federal defendants annually.

A Look Back at 2012: A Year of Transition

The Journal Editors would like to wish all our contributors and readers a Happy and Prosperous 2013. We are grateful to the many authors who submit their manuscripts to World Medical & Health Policy. Last year witnessed the introduction of new therapies and technologies into medical practice. Improvements in cancer detection and survival, advances in natural body orifices surgery, and handheld devices continue to enhance the practioner's toolbox. Handheld diagnostic devices based on polymerase chain reaction (PCR) technology now offers the promise for diagnostic testing in remote regions of the globe. Tied to the global information network, public health and medical consultations can be accessible to millions of individuals, helping with rapid access to medical care and services. Infectious diseases, especially those resistant to antibiotics, can be more rapidly detected, resulting in earlier appropriate therapy which improves outcomes. In 2012, many governments and private organizations focused on improving population health, access to care, delivering preventive services and containing, or eradicating, infections. Preventing the spread of HIV/AIDS, malaria and tuberculosis, poliomyelitis eradication, improving sanitation and food services will remain a 2013 priority for many international funding organizations.The recent rapid rise in global longevity, especially in developing countries, has been met with both hope and concern; hope for improved health and concern for the increase in non-communicable diseases and the inability of the current medical infrastructure to meet the demand for services. Preventive care early in life is essential to reduce the burden of chronic debilitating diseases among older individuals and ensure “healthy aging” and the wellbeing of the global community. Health care reforms and fiscal interventions to contain the rising costs of health care are not sufficient tools to address the looming health challenges. Adequate resources in the fight against contributing factors such as poverty, poor nutrition, smoking, physical inactivity, socio-economic shifts and environmental exposures, and meeting communities' needs and expectations, should be priorities for the foreseeable future (Clements, Coady, & Gupta, 2012; World Bank (2012); World Health Organization (2012)). Programs addressing health literacy and the fight against poverty and health disparities require focus and support. Adding to the burden of medical costs are natural and human made disasters. The year 2012 ranked as the second worst year for disasters costing over one billion USD per event. While the loss of life was minimized by effective preparedness, damage to critical infrastructure and medical services has been staggering. Victims of disasters require long-term care for chronic diseases. The International Federation of the Red Cross and Red Crescent Societies estimate that over 73 million individuals were displaced in 2012 due to disasters. Access to good care and preventive services for all should be a global priority. Unfortunately, a global shortage of competent and adequate health care workforce continues to be a major roadblock to the successful implementation of urgent programs targeting population's health. In many countries, even the life of medical professionals and health care workers is at risk. WHO and the World Medical Association are actively involved in promoting Physicians' political neutrality and security, together with removing the global social inequalities in public health services and health care access. In 2013, the global health community should increase its attention, and funding, to solve the problem of growing health disparities and the rising burden of non-communicable diseases. We would welcome submissions on this important issue from our readership around the globe. Last year World Medical & Heath Policy began the transition to our new publisher, Wiley-Blackwell. We look forward to the opportunites this trasition will afford in expanding the readership and reach of the journal. Future issues of our Journal will continue to explore the global medical challenges facing the world community. Arnauld Nicogosssian is Senior Editor of World Medical & Health Policy and Distinguished Research Professor and Director of the Center for the Study of International Medical Policies and Practices at George Mason University's School of Public Policy. Bonnie Stabile is Deputy Editor of World Medical & Health Policy and an Adjucnt Professor in George Mason University's School of Public Policy, and Department of Public and International Affairs. Otmar Kloiber, Editor of World Medical & Health Policy, is Secretary General of the World Medical Association. Edward Septimus, Chair of the Editorial Board of World Medical & Health Policy, is Medical Director for Infection Prevention and Epidemiology at HCA. Thomas Zimmerman, Editor of World Medical & Health Policy, is Founding Dean of Palm Beach Medical College.

Exactitude in Defining Rights: Radio Spectrum and the “Harmful Interference” Conundrum

In the century since the Radio Act of 1912 initiated U.S. spectrum allocation rules, a precise definition of “harmful interference”—the control of which forms the rationale for regulation—has eluded policymakers. In one sense, that result is unsurprising; rights are always defined incompletely. In another sense, however, the regulatory system is dysfunctional, severely limiting the productive use of spectrum while locked down in yearslong border disputes. These disagreements have, in turn, triggered calls to develop brighter lines and fuller engineering specifications of harmful interference. However, this emphasis on exact definitions is misguided. Spectrum use rights generate more robust market development when they feature technically fuzzy borders but are awarded in economically efficient bundles. The key ingredients are (a) exclusive, flexible rights; (b) frequency borders set via standardized edge emission limits; (c) large bundles of complementary rights that limit fragmentation; and (d) fluid secondary trading that allows mergers to end border disputes by eliminating borders. Regulators should focus less on delineating precise interference contours, and instead expeditiously distribute standard bandwidth rights to economically responsible agents, taking care to avoid undue fragmentation (and tragedy of the anticommons). Many episodes illustrate these lessons, including those involving reallocation of the broadcast TV band, the emergence of HD radio, the Nextel/public safety “spectrum swap,” and the ongoing WCS/SDARS dispute. Each instance reveals that economic incentives, not engineering complexity, drive—or block—productive coordination of radio spectrum use. © 2013 Thomas W. Hazlett and Sarah Oh. All Rights Reserved. † Professor of Law and Economics, George Mason University School of Law; FCC Chief Economist, 1991–1992. This Article follows from a presentation on Creating Efficient Spectrum Property, Towards an Economic Definition of “Harmful Interference” in Radio Transmissions, Presentation at the Conference on Spectrum Markets: Challenges Ahead, Kellogg School of Management, Northwestern University (June 2–3, 2011). The author thanks Brent Skorup for excellent research assistance. †† Research Fellow, Information Economy Project. Ph.D. Student in Economics, George Mason University; J.D. George Mason University; B.S. Stanford University, Management Science & Engineering. 0227-0340_HAZLETT_081313_WEB (DO NOT DELETE) 8/13/2013 5:00 PM 228 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 28:227

Networking Customary Law

In United States v. Jones, the U.S. Supreme Court considered whether gathering four weeks of GPS information capturing a suspect’s movement on public roads constituted an unlawful search under the Fourth Amendment of the U.S. Constitution. In two separate concurring opinions, Justices Alito and Sotomayor rejected the notion that all of a citizen’s movements in public were free from the Amendment’s protection. A unifying theme for both justices was the power of contemporary technology to aggregate isolated acts into a comprehensive knowledge of a person’s private life. Justice Alito writing on behalf of four Justices notes that, over time, the collection of “a precise, comprehensive record of a person’s public movements reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Separately, Justice Sotomayor writes that tracking technology provides “a substantial quantum of intimate information...that enables the Government to ascertain, more or less at will, [a person’s] political and religious beliefs, sexual habits, and so on.” As in Jones, practices aggregating isolated acts into knowledge has typically focused on the impact on individuals. This Article inverts that focus. Just as aggregating isolated pieces of public information provides tremendous knowledge of individuals, it also provide tremendous knowledge as to the acts ∗ Assistant Professor of Law, LSU Law Center; Associate, University of Texas Robert Strauss Center for International Security and Law; J.D., University of Chicago, 2001; LL.M, European University Institute, 2002. The author is tremendously grateful for the helpful comments provided during faculty colloquium engagements at George Mason University School of Law, the University of Oregon School of Law, the University of Arkansas School of Law, and Santa Clara University Law School. 1 United States v. Jones, 132 S. Ct. 945 (2012); see U.S. CONST., amend. IV. 2 The concept that monitoring of “public” acts was not subject to the Fourth Amendment flows from United States v. Knotts. 460 U.S. 276 (1983). 3 Jones, 132 S. Ct at 955 (Alito, concurring), citing People v. Weaver, 12 N. Y. 3d 433, 441-442, 909 N.E.2d 1195, 1199, 882 N.Y.S.2d 357 (2009); see also Transcript of Oral Argument at 10, United States v. Jones, 132 S. Ct. 945 (2012), No. 10-1259. 4 Jones, 132 S. Ct at 925 (Sotomayor, concurring) NETWORKING CUSTOMARY LAW SULLIVAN

Introduction to Symposium on Behavioral Law and Economics

We are pleased to present in this volume of Supreme Court Economic Review a symposium on behavioral law and economics. Most of the papers presented herein were originally written and presented at a conference co-sponsored by the George Mason Law and Economics Center and the Liberty Fund and held in Captiva Island February 2012.1 In addition, the papers have been supplemented by additional papers related to the topic. Taken together, the papers included here present one of the most comprehensive and far-reaching analyses of the current state of behavioral law and economics. In particular, unlike many prior collections of papers on behavioral law and economics, the papers collected here include a wide variety of perspectives, from both enthusiasts for the behavioral law and economics research paradigm, as well as others who draw more skeptical conclusions. In addition, the papers presented here rely heavily on empirical analysis, as opposed to the anecdotal and non-empirical nature of much behavioral law and economics research. The variety of perspectives represented here appraise the current state of knowledge of behavioral law and economics and identify some of the challenges for the research paradigm going forward. The volume starts off with an overview essay by Thomas S. Ulen, one of the founding fathers of behavioral law and economics, Behav-

About Our Authors

About Our Authors

America – What the US needs is a new electric meter

Letter from America from Edward L. Flippen (Attorney at Law, McGuire Woods LLP, Richmond, Virginia and a visiting professor of law at George Mason University School of Law – discussing President George W. Bush’s plans to develop a national energy policy and its likely effect on consumers and the electrical utilities in the United States. Published in the Letter from … section of Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

US electric deregulation: still critically important

Comment on the merits and prospects of electric utilities deregulation in the United States, with reference to similar action in Australia and the United Kingdom. Article by Mr Edward L. Flippen (a partner with McGuire Woods LLP and a visiting professor of law at George Mason University School of Law). Published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

Introduction to Symposium on Post-KeloReform

Next article FreeArticleIntroduction to Symposium on Post-Kelo ReformIlya SominIlya Somin*Assistant Professor of Law, George Mason University School of Law; author of amicus curiae brief on behalf of Jane Jacobs in Kelo v City of New London. Co-Editor, Supreme Court Economic Review. Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Supreme Court Economic Review Volume 172009 Sponsored by the Antonin Scalia Law School, George Mason University Article DOIhttps://doi.org/10.1086/656053 Views: 12Total views on this site © 2009 by The University of Chicago. All rights reserved.PDF downloadCrossref reports no articles citing this article.

CIAS, Inc. v. Alliance Gaming Corp., 424 F. Supp. 2d 678 (S.D.N.Y. 2006).

CIAS, Inc. v. Alliance Gaming Corp., <i>424 F. Supp. 2d 678 (S.D.N.Y. 2006).</i>

The Ambiguities of Rawls's Influence

John Rawls is the towering figure of academic liberalism. A gentle, dignified, self-effacing man, he taught philosophy at Harvard for more than thirty years and from his commanding position exerted a decisive influence on his profession. Through his scholarship and teaching he played a major role in establishing the now-dominant understanding of liberalism in the academy and, more generally, of the method and purpose of the philosophical study of politics.Peter Berkowitz teaches at George Mason University School of Law and is the Tad and Dianne Taube Senior Fellow at Stanford's Hoover Institution (berkowitz@hoover.stanford.edu). He is the editor of the companion volumes Varieties of Conservatism in America (Hoover Institution Press 2004) and Varieties of Progressivism in America (Hoover Institution Press 2004).This essay weaves together (and in places corrects) the argument of “John Rawls and the Liberal Faith,” in The Wilson Quarterly, Spring 2002, pp. 60–69, and “The Academic Liberal,” in The Weekly Standard, Dec. 16, 2002.

The Role of public utility regulation: oversight or onsite?

Brief commentary by Edward L. Flippen (Partner, McGuireWoods LLP; Lecturer in law, University of Virginia Law School; Distinguished Senior Fellow, George Mason University School of Law) on regulation in the United States of public utilities such as electric and gas utilities. Published in Amicus Curiae – Journal of the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies. The Journal is produced by SALS at the IALS (Institute of Advanced Legal Studies, School of Advanced Study, University of London).

What's in a Name? The Letterhead Impact Project

What is in a name? A widespread deeply held belief by law professors is that law reviews are unfairly prejudiced and biased in favor of papers from authors at higher ranked, or more prestigious, institutions. A visit by a colleague to a ‘‘top-tier’’ law school provided an opportunity to see if this intuitive assumption was true or just urban legend. A simple experiment tested whether the rank of an author’s institution would affect how the paper was reviewed, and whether or not an author at a higher ranked institution would receive better or more preferential treatment than an author at a lower ranked institution. A colleague of mine visited for a semester at George Mason University School of

ABOUT THE AUTHORS

ABOUT THE AUTHORS

Constitutional process: a social choice analysis of Supreme Court decision making

This is the first comprehensive analysis of how the collective nature of Supreme Court decision making affects the transformation of the justices' preferences into constitutional doctrine. Analyzing the Supreme Court from the perspective of social choice theory, Maxwell L. Stearns offers new insights into Supreme Court decision making that have profound implications for understanding the outcomes in a number of cases and the resulting doctrinal development within constitutional law which traditional analyses have proven ill-equipped to explain. The book models several important process-based Supreme Court rules, including outcome voting, the narrowest-grounds rule, stare decisis, and justiciability, with a particular emphasis on standing. These doctrines have each had a significant impact upon the evolution of modern constitutional law, including but not limited to the following areas: affirmative action, school desegregation, racial gerrymandering, obscenity, and abortion. Each model is presented in nontechnical language with several concrete illustrations drawn from recent Supreme Court case law. The book offers a new understanding of two apparently paradoxical situations: first, cases in which there are separate majorities on specific issues in the case that suggest, logically, that there should be a majority for the dissenting result; and second, cases in which discrete minorities--as opposed to the apparent majority--control the identification and resolution of dispositive case issues. In addition, the book sheds new light on why the Court employs stare decisis, even though the doctrine grounds the evolution of legal doctrine on the order in which cases are presented and decided, and on how the modern standing doctrine ameliorates the incentives for interest groups to time the litigation of cases in a way that will exert a disproportionate influence over the direction of constitutional doctrine. This book will appeal to scholars of the Supreme Court or judicial decision-making. It should also be of interest to students of social choice and of law and economics who have not previously considered the Supreme Court or constitutional law as fertile ground for their disciplines. Maxwell L. Stearns is Professor of Law, George Mason University School of Law.

Rules for Declining to Exercise Jurisdiction in Civil and Commercial Matters: Forum Non Conveniens, Lis Pendens

Rules for Declining to Exercise Jurisdiction in Civil and Commercial Matters: Forum Non Conveniens, Lis Pendens Get access Louis F. Del Duca, Louis F. Del Duca 1Louis F. Del Duca is Associate Dean and Professor of Law, The Dickinson School of Law; B.A., Temple, J.D., Harvard; Dott. di Giur., University of Rome Law School. The research assistance of Elizabeth T. Dold, third-year law student at The Dickinson School of Law, is greatly appreciated. Search for other works by this author on: Oxford Academic Google Scholar George A. Zaphiriou George A. Zaphiriou 2George A. Zaphiriou is Professor of Law and International Transactions, George Mason University School of Law and International Institute. Law Degree, University of Athens, LL.M. University of London. This is to acknowledge with thanks the help of my research assistant, Anne-Marie L. Kagy, a third-year student at the George Mason University School of Law. Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 42, Issue suppl_1, 1 December 1994, Pages 245–273, https://doi.org/10.1093/ajcl/42.suppl1.245 Published: 01 December 1994

Front Matter

Next article FreeFront MatterPDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Supreme Court Economic Review Volume 31993 Sponsored by the Antonin Scalia Law School, George Mason University Article DOIhttps://doi.org/10.1086/scer.3.1147062 Views: 16 Copyright 1994 The Law and Economics Center at the George Mason University School of LawPDF downloadCrossref reports no articles citing this article.

Transnational Technology Protection

Journal Article Transnational Technology Protection Get access George A. Zaphiriou George A. Zaphiriou 1George A. Zaphiriou is Professor of Law and International Transactions of George Mason University School of Law and International Institute. The author gratefully acknowledges the assistance of Cynthia Cook, Esq. and W. Kip Wood, Esq., both of the GMUSL class of 1990 and of Raymond Jones, Esq., of the class of 1992. Grants by the George Mason University International Institute and the Sarah Scaife Foundation are acknowledged with thanks. Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 40, Issue 4, Autumn 1992, Pages 879–915, https://doi.org/10.2307/840797 Published: 01 October 1992

Harmonization of Private Rules between Civil and Common Law Jurisdictions

Journal Article Harmonization of Private Rules Between Civil and Common Law Jurisdictions Get access George A. Zaphiriou George A. Zaphiriou 1George A. Zaphiriou is Professor of Law, George Mason University School of Law. Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 38, Issue suppl_1, Supplement 1990, Pages 71–97, https://doi.org/10.2307/840534 Published: 01 December 1990

Preface to Volume One

Previous articleNext article FreePreface to Volume OnePeter H. AransonPeter H. Aranson Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Supreme Court Economic Review Volume 11982 Sponsored by the Antonin Scalia Law School, George Mason University Article DOIhttps://doi.org/10.1086/scer.1.1147109 Views: 5 Copyright 1994 The Law and Economics Center at the George Mason University School of LawPDF downloadCrossref reports no articles citing this article.