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June 25, 2006

Another must-read for SCOTUS watchers and Blakely fans

As I have said before, I always enjoy NYU Professor Rachel Barkow's scholarly work because, in addition to being a sentencing guru, she brings an important legal process perspective to the issues she explores.  She is at it again in latest piece, now available here from SSRN, entitled "Originalists, Politics, and Criminal Law on the Rehnquist Court."  Here are snippets from the abstract:

One of the most important legacies of the Rehnquist Court's criminal law jurisprudence is its reinvigoration of the Constitution's jury guarantee. The Court has made clear that legislators cannot pass laws mandating increases in punishment unless those laws are applied by juries, not judges. The Court has therefore rejected existing sentencing laws in numerous states and the federal system, and sentencing policy is under scrutiny as never before.

The Court's sentencing cases are not only significant for their impact on day-to-day plea bargaining and trial practice in the criminal justice system; they also provide a concrete and important example of the power of law and legal methodology - and not simply politics - in Supreme Court decisionmaking.  The sentencing decisions are out of step with what attitudinalist political scientists would have predicted from the right-leaning Court.... This area of criminal law is therefore an important reminder of the significance of legal methodology to case outcomes.

In addition to documenting the importance of the jury cases, this Article uses those cases as a springboard for a larger analysis of the relationship between originalists, politics, and criminal law on the Rehnquist Court.  By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model.... The jury cases are therefore part of a larger pattern that reveals the relationship between originalism, politics, and criminal law to be far more complicated than is commonly believed.

June 25, 2006 at 07:47 AM | Permalink


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Tracked on Jun 26, 2006 4:30:30 PM


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