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National Association of Home Builders v. Occupational Safety & Health Administration

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Argued November 5, 2009

Before: TATEL and KAVANAUGH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

A driver exceeding the speed limit runs a red light and swerves onto the opposite lane. Three violations of the law against reckless driving or one? Five punches to a victim’s face without provocation. One battery or five? Same result if the punches were hours apart? The financial officer of a corporation with 10,000 shareholders submits a false report to the Securities and Exchange Commission. One fraud or 10,000? These “unit-ofprosecution” questions have vexed state and federal courts. The questions are important. Prosecutors know that multiple charges encourage plea agreements and convictions. Defense attorneys know that it is easier to defend against one charge than many. Most people know that multiple offenses can result in multiple punishments.

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