A revised draft of "Conceptualizing Booker"

Back in February, I posted here an early draft of my article entitled "Conceptualizing Booker," to appear in the Arizona State Law Journal as a follow-up to this great sentencing conference.  I now have a revised draft, which can be downloaded below.  In my prior post, I set out a portion of the article's introduction, so this time let me provide snippets from the final Part of the paper:

The Supreme Court's development of its modern Sixth Amendment jurisprudence over the last decade has been contentious and convoluted, and the Booker decision made a conceptually muddled jurisprudence concerning sentencing procedures even more opaque.  Unfortunately, a fractured Supreme Court has been unable (or at least unwilling) to work together to forge a modern sentencing jurisprudence that is conceptually clear, and lower courts and legislatures have had to try to make the best of a chaotic doctrine that has emerged in fits and starts and evolved with unexplained gaps and unexpected growths.  Tellingly, Professor Kevin Reitz has come to describe the Supreme Court's recent Sixth Amendment jurisprudence as "a kind of constitutional 'Swiss cheese.'"

The vision of Booker developed in this Article could perhaps provide a conceptual framework for reordering the Supreme Court's Sixth Amendment jurisprudence.  Because the Court's sentencing jurisprudence is necessarily still in development as it confronts new and challenging constitutional questions that emerge from modern sentencing systems (and because the Court has some new members who might bring new perspectives to this jurisprudence ), a conceptual view of Booker focused on sentencing as a distinctive judgment-centered enterprise could have important implications for the Court's continuing work in this area. In this concluding Part, I will briefly sketch the possible implications of conceptualizing Booker for the Supreme Court's recent Sixth Amendment jurisprudence, as well as for the proper approach to federal guideline sentencing in the wake of Booker.

Download final_conceptualizing_booker.doc