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

By Douglas A. Berman

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...continue to full post

Full post as published by Sentencing Law and Policy on May 30, 2008 (boomark / email).