Richard M. Re (Yale Law School) has posted Re-Conceptualizing Booker: How to Stop Legislatures from Circumventing the Right to Jury Trial on SSRN. Here is the abstract:
This essay offers a new, comprehensive account of the Supreme Court’s recent Sixth Amendment sentencing doctrine and provides solutions to a number of well-recognized doctrinal puzzles. Existing theories lack a strong foothold in the Sixth Amendment’s right to jury trial, fail to answer concerns that post-Booker appellate sentencing review might itself lead to Booker violations, and make no effort to explain how the Sixth Amendment might justify the Supreme Court’s post-Booker decisions regulating federal sentencing practice.
The key to answering these dilemmas is to recognize how the Court’s Sixth Amendment rule helps preserve the centrality of jury verdicts. As employed by the Court, the Blakely rule removes an incentive for legislatures to shift factfinding responsibilities away from juries and toward judges. This jury circumvention approach both respects the American legal system’s dual traditions of jury trial and judicial sentencing and explains why appellate sentencing review after Booker should not raise constitutional problems. However, this novel approach also highlights the possibility that – despite the Blakely rule – Congress and the courts might implicitly collude so as to empower judges at juries’ expense. This last possibility is what drives the Court’s recent, otherwise inscrutable decisions in Rita, Gall, and Kimbrough.