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2007 Utah L. Rev. 861, *883

representative. To eliminate any doubt about the ability of corporate entities to assert their interests, the Rules should be amended to clearly state that a victim's representative can enforce victims' rights. 133

Rule 2 - Fairness to Victims The Proposals:

I proposed amending Rule 2 to require fairness to victims in construing the Rules as follows:

These rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration to the government, defendants, and victims, and to eliminate unjustifiable expense and delay. 134

The Advisory Committee did not propose amending Rule 2. 135

Discussion:

To assure that crime victims are treated fairly throughout the process, it makes sense to add language incorporating crime victims in Rule 2 - the one rule that specifically mentions fairness. As discussed in the previous Part of this Article, the Advisory Committee does not agree that the Rules should be amended to protect a victim's right to fairness and for this reason, presumably, declined to amend Rule 2. The qualifier "presumably" is needed here because the CVRA Subcommittee did not give an explanation for declining to follow my recommendation here. 136

The fairness issues appears to be the fundamental difference between my approach and the Advisory Committee's approach - the Rules are either going to treat crime victims fairly or not. As discussed in the previous Part of this Article, they should.

But even those who share my view on fairness might nonetheless argue that Rule 2 need not be amended because it is an interpretive rule with no substantive effect. After all, it could be argued, the rule simply calls for a "just determination" of criminal cases, arguably a symbolic command. And, in any event, that command might be flexible enough to encompass crime victims.

[*884] The debate about how Rule 2 ought to read is, however, about more than symbols. In 1946, the initial chairman of the Advisory Committee called Rule 2 "the most important rule of the whole set." 137 Rule 2 has been cited by a number of courts, 138 including the Supreme Court. 139 Rule 2 has consequences. Not only does it "set[] forth a principle of interpretation" for

judge could not require the wrongdoers to pay restitution .... "); United States v. Kirkland, 853 F.2d 1243, 1246 (5th Cir. 1988) ("Non-human entities ... can be "victims' entitled to restitution ... ."); see also United States v. Lincoln, 277 F.3d 1112, 1113-14 (9th Cir. 2002) (discussing 18 U.S.C. § 3664, which specifically recognizes the United States as a possible victim for restitution purposes).

133 The National Association of Criminal Defense Lawyers has proposed adding a "factfinding" hearing for determining who qualifies as a victim under the CVRA. This novel and cumbersome proposal is discussed below. See infra notes 546-547 and accompanying text (discussing Proposed Rule 60(b)).

134 Cassell, Proposed Amendments, supra note 4, at 858.

135 Proposed Amendments, supra note 71.

136 See CVRA Subcommittee Report, supra note 66, at 17-20 (listing Cassell proposals not adopted; Rule 2 proposal not listed).

137 Vanderbilt, N.Y.U Institute of Federal Rules of Civil Procedure, at 120 (1946), quoted in 1 Charles Alan Wright, Federal Practice and Procedure: Criminal § 32, at 30 n.1 (3d ed. 1999).

138 See, e.g., United States v. Gupta, 363 F.3d 1169,1174 (11th Cir. 2004); United States v. Navarro, 169 F.3d 228, 237 (5th Cir. 1999); United States v. Price, 13 F.3d 711, 723 (3d Cir. 1994); United States v. Giovannetti, 928 F.2d 225, 226 (7th Cir. 1991); United States v. Campbell, 845 F.2d 1374, 1378 (6th Cir. 1988); United States v. Green, 847 F.2d 622, 625 (10th Cir. 1988); United States v. Hillard, 701 F.2d 1052, 1061 (2d Cir. 1983), cert. denied 461 U.S. 958 (1983); United States v. Broadus, 664 F. Supp. 592, 596-98 (D.D.C. Cir. 1987); United States v. Pers. Fin. Co. of N.Y., 13 F.R.D. 306, 311 (S.D.N.Y. 1952).

139 See Carlisle v. United States, 517 U.S. 416, 424, 431 (1996).

DAVID SCHOEN

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