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September 21, 2004

The joys of brief reading

Thanks to a persistent printer, I now have a swelled redweld of printed briefs to go along with my swelled e-mail in-box. Many thanks to everyone who sent along copies of briefs, and I hope readers will take advantage of the comments feature to share thoughts about new Booker and Fanfan wisdoms. I hope to be able to do my own commentary on the briefs in the days ahead (although with over 100 pages from the parties and even more from amici, I fear I will not be able to do as much analysis of this round of briefing).

I can, though, already share a few superficial observations. First, the respondents won the battle of the amici on pure numbers. Six amicus briefs were filed in support of respondents (the five today here and the one last week here), while only two amicus briefs were filed in support of petitioners (recall that the judges' brief was technically filed not in support of either party). Second, though most of the respondents briefs come from traditional defender groups, the amicus effort by the Washington Legal Foundation adds some interesting diversity to the groups and interests supporting Booker and Fanfan. Indeed, I could not help but notice from the WLF website that Attorney General John Ashcroft has praised WLF as "independent, respected, and influential." I suppose how influential, at least in this case, remains to be seen.

Finally, for now, I must note how my new perspective on Blakely in terms of adversarial versus administrative justice detailed here has already given me new insights about the last round of briefing. Notably, the defenders of the existing guidelines regime are all entities which greatly benefit from a system of administrative justice: the SG represents DOJ and the prosecutors who are the chief (case-specific) administrators in the federal sentencing system; the USSC is an administrative agency which is the chief (system-wide) administrator of the federal sentencing system; and the Senators represent the legislative interest in continuing to be able to punish harshly without all the bother and expense that an adversarial system necessarily creates. And, tellingly, the judges' brief seems to reflect the fact that at least some judges are not all that troubled by an administrative sentencing system as long as the judges' themselves have the power (i.e., the "substantial judicial discretion") necessary to be the true chief administrator.

September 21, 2004 at 05:58 PM | Permalink

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