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 per hour is a prototypical rule; negligence is a prototypical standard. In the context of sentencing, rules and standards are primarily distinguished by when a sentencing directive is given its specific content (before the sentencing hearing or during it) and who decides its content (Congress, the Commission, or the judge). The pros and cons of rules and standards have been analyzed in depth in many areas of law, but they have only recently been applied systematically to sentencing
Daniel S. Guarnera,
A Fatally Flawed Proxy:The Role of “Intended Loss” in the U.S. Sentencing Guidelines for Fraud,
81 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol81/iss3/6