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September 24, 2004

Professor Bowman speaks yet again!

Professor and FSR editor Frank Bowman has yet again proven that I am not the only one who cannot stop writing about Blakely. In a follow-up to his widely-discussed memos to the US Sentencing Commission (available here and here) and his earlier pragmatic argument against Blakely (see his "Train Wreck" piece available here), Frank has produced the introductory Editor's Observations for the next Federal Sentencing Reporter issue on Blakely in which he seeks to "articulate a constitutional theory of how crime is defined and punished that is better and less formalistic than Justice Scalia's." This effort, entitled "Function Over Formalism: A Provisional Theory of the Constitutional Law of Crime and Punishment," can be downloaded here:
Download bowman_functionoverformalism.doc

In addition, I am pleased to report that I have received my advance hard copy of FSR first Blakely issue (detailed here), and that final proofs are being polished on the next special FSR Blakely issue. Keep checking this space for complete details about this latest issue, which has an October 2004 cover date and should go to press next week. Recall that at this link you can order a subscription to FSR and/or purchase individual issues, and at this link you will find a place to sign up to receive an e-mail alert when new issues of FSR come on-line.

I was extremely gratified to see a number of the Supreme Court briefs filed earlier this week citing articles from both FSR Blakely issues. Here's hoping that SCOTUS sees fit to do the same when deciding Booker and Fanfan.

September 24, 2004 at 02:57 AM | Permalink


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I found Professor Bowman's piece beautifully written and persuasive. I hope he sends a copy to Congress with a recommendation that the members keep it in mind while considering his outstanding proposal to raise the ceilings of all the guidelines ranges. Having originally provided them with such an elegant and simple fix, it would be nice to have him suggest now that there might be constitutional problems in adopting it without meaningful reform on the ability to make downward departures.

Posted by: Alex E. | Sep 24, 2004 6:09:59 PM

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