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"Deciding When To Decide: How Appellate Procedure Distributes the Costs of Legal Change"

By Douglas A. Berman

The title of this post is the title of this notable new piece from Professor Aaron-Andrew P. Bruhl that should be of extra interest to Blakely and Booker fans, as evidenced by this abstract: Legal change is a fact of life.  The need to deal with legal change has spawned a number of complicated bodies of doctrine.  Some of these issues have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent.  How such questions are answered affects the size and the distribution of the costs of legal change.  Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions...continue to full post

Full post as published by Sentencing Law and Policy on February 19, 2010 (boomark / email).