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Nino's Dictionary -- or -- The Meaning of "Shall" from Booker to Castle Rock

By Tom Lincoln

During Oral Argument in United States v. Booker last October 4, 2004 (transcript here), Justice Breyer and Justice Scalia had the following exchange:JUSTICE BREYER: All right, if I believe that that is just out of the question, it's so complicated, nobody could do it, it would [*45] be a radical change, Congress could never have intended that, what about a much simpler approach? What you would do is take 3553(b), and you say, "Read the word 'shall' -- i.e. 'shall apply the guidelines' -- to 'may,'" so that the guidelines become advisory, either because the "shall" becomes a "may" or because you give each judge the power to give any reasonable reason at all as to why the Commission's guideline, they didn't actively consider this factor. In other words, read 3553(b) as permissive...continue to full post

Full post as published by Macondo Law on June 30, 2005 (boomark / email).