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May 30, 2008

The true back-story of the Blakely-Booker jurisprudential mess?

Though it makes no mention of sentencing jurisprudence, this new piece up on SSRN develops a theory that may help explain how and why the Apprendi-Blakely-Booker line of cases has produced such a doctrinal mess.  The piece by Ben Barton is titled "Judges, Lawyers, and a Predictive Theory of Legal Complexity," and here is the abstract:

This Article uses public choice theory and the "new institutionalism" to discuss the incentives, proclivities, and shared backgrounds of lawyers and judges. In America every law-making judge has a single unifying characteristic, each is a former lawyer.  This shared background has powerful and unexplored effects on the shape and structure of American law.  This Article argues that the shared characteristics, thought-processes, training, and incentives of Judges and lawyers lead inexorably to greater complexity in judge-made law.  These same factors lead to the following prediction: judge-created law will be most complex in areas where a) elite lawyers regularly practice; b) judges may have a personal preference in the case that can be written-around by way of legal complexity; and c) the subject area interests the judge, or is generally considered prestigious.  The Article uses the law of standing as a case study.

May 30, 2008 at 09:28 AM | Permalink


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I can see why those factors would lead to complexities in the law of personal injury/torts, bankruptcy, patent and copyright, and particularly securities. But not the 6th amendment right to a jury trial as it relates to sentencing. Not at all. Though I guess I should read the article.

Posted by: bruce | May 30, 2008 10:08:43 AM

I think what's meant to be complex is the judge-made law constraining/allowing discretion in sentencing, and maybe the exercise of that discretion.

Posted by: Gray Proctor | May 30, 2008 10:29:26 AM

Great article. I look forward to hearing more about this from you and the other online legal readers.

Posted by: Personal Injury lawyers Chicago | May 30, 2008 11:41:24 AM

Who woulda thunk it--a bunch of lawyers involved in a lawmaking make the law arcane and hypertechnical . . . .

Posted by: federalist | May 30, 2008 12:36:11 PM

The common ground argument can go quite a bit father than simply a shared background as lawyers. Judges, certainly, judge's in higher judicial posts, are almost always formerly experienced lawyers who managed some level of success in their prejudicial career, and who have above average histories of political involvement (since the vast majority of senior judicial appointments have some political component to them). Moreover, appellate judges are frequently selected precisely because of a political agenda they are expected to bring to close partisan flavored legal issues they encounter.

Struggling partisan agendas within the judiciary explain as much complexity as judicial commonalities.

The "elite lawyers regularly practice" line is probably incorrect. Those areas often have little case law at all, since the fields where "elite" lawyers practice tend not to be mill run cases that come up routinely.

Instead, the complexity of criminal procedure and sentencing may have a lot to do with the fact that prosecutors and criminal defense lawyers make up a grossly disproportionate share of judges (despite the fact that non-white collar criminal law is an area where "elite" lawyers rarely practice), and the fact that criminal cases make up a disproportionate share of cases which actually go to trial. Moreover, judges engage in sentencing in almost every criminal case, while deal with guilt or innocence much less frequently. A settled civil case leaves no room for further judicial involvement, a plea bargained criminal case often leaves room for meaningful further judicial involvement. Further, because a large number of sentencing decisions are appealled (one of the single largest single type of appealled decision), appellate judges can usually not avoid establishing relatively comprehensive rules for this area of the law, and the natural "static" from slight restatements of a single rule almost naturally creates complexity as judges try to decide if different wordings of similar rules have substantive meaning or not.

Posted by: ohwilleke | May 30, 2008 1:38:34 PM

Bruce, concerning your comment about "Sixth Amendment right to jury trial related to sentencing," I don't think there is such a thing. Please look at Justice Scalia's concurring opinion in Ring v Arizona that says the decision has nothing to do with jury sentencing and Justice Thomas' concurring opinion in Apprendi where he says the issue is what is a crime? By its own terms, the Sixth Amendment applies only to "criminal prosecutions" not sentencing proceedings.

I think most of the confusion about Apprendi/Blakely is due to the notion that they have something to do with sentencing rather than with the question of who convicts people of crimes. Justice Breyer in Ring thought there was a right to jury sentencing and Scalia told him to get off the plane or buy a ticket to Apprendiland.

Bruce Cunningham

Posted by: | May 30, 2008 5:29:44 PM

ohwilleke, I just can't resist - are you sure you used the right word in describing someone's time before they're on the bench - "prejudicial"?????????

Posted by: | May 30, 2008 7:04:48 PM

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