June 22, 2007
On second read, evidence of Breyer brilliance in Rita
As I re-read Justice Breyer's opinion for the Court in Rita, a particular sentence (at slip op. 18-19) kept drawing my attention:
[The sentencing judge's] reasoned sentencing judgment, resting upon an effort to filter the Guidelines' general advice through §3553(a)'s list of factors, can provide relevant information to both the court of appeals and ultimately the Sentencing Commission.
Because this phrasing sounded strangely familiar, I went back to the amicus brief I primarily authored and found this sentence describing my vision of post-Booker sentencing realities:
Booker thus now requires judges to exercise reasoned sentencing judgment by filtering the Guidelines' advice through the dynamic, multi-faceted, purpose-oriented provisions of §3553(a).
The Rita Court's repeated emphasis on judicial sentencing decisions as "reasoned decisions" (see slip op. at 17-19) leads me to conclude that Rita has largely embraced my vision (as well as my nomenclature) for understanding Booker and how Booker reshaped the federal sentencing universe. A fuller account of this vision appears not only this amicus brief, but also in these recent law review pieces:
- Making Sentencing Sensible, 4 Ohio State Journal of Criminal Law 37 (2006) (with Professor Stephanos Bibas)
- Reasoning Through Reasonableness, 115 Yale Law Journal Pocket Part 142 (2006).
- Conceptualizing Booker, 38 Arizona State Law Journal 387 (2006)
- Beyond Blakely and Booker: Pondering Modern Sentencing Process, 95 Journal of Criminal Law and Criminology 654 (2005)
June 22, 2007 at 07:10 AM | Permalink
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I hope the title of this post was intended to be tongue-in-cheek, and doesn't literally amount to the claim, "Breyer's opinion is brilliant because it adopts my reasoning."
Posted by: | Jun 22, 2007 11:09:17 AM
Posted by: Anon | Jun 22, 2007 11:18:00 AM
I hope the substance of the post was tongue-in-cheek, too. As the initial post indicated, there's something in Rita for everyone. While there is certainly something in it for Prof. Berman, I find little evidence in the opinion that the Rita majority "has largely embraced [Prof. Berman's] vision (as well as [his] nomenclature) for understanding Booker and how Booker reshaped the federal sentencing universe."
For one thing, the word "realities" isn't used once in any of the opinions.
Posted by: | Jun 22, 2007 11:24:27 AM
For another, neither is the word "parsimony"
Posted by: | Jun 22, 2007 11:25:52 AM
It looks like you are entertaining a tough crowd!
Posted by: doug | Jun 22, 2007 12:13:43 PM
No citation to your brief, though, despite the obvious borrowing of language and argument?
I imagine that as a professor, Justice Breyer would have considered such conduct by a student tantamount to plagiarism. Or am I missing something?
Posted by: Randy | Jun 22, 2007 2:59:08 PM