Conceptualizing Blakely (in draft)

Professor Charles Fried had this interesting op-ed, entitled “Courting Confusion,” in the NY Times Thursday (which has already generated interesting responses from Professors Jack Balkin and Stephen Bainbridge and Ann Althouse). Though I am disinclined to weigh into the broader jurisprudential scrum, the last line in Professor Fried’s discussion of the work of the Supreme Court caught my eye:

I fear an indefinite and incoherent prolongation of a fin-de-siècle jurisprudence, where the court serves as nothing more than an ad hoc arbiter of issues it finds too difficult to decide in a principled way.

Though Professor Fried does not discuss Blakely in his op-ed, his closing words certainly fit what many may fear is the future of sentencing jurisprudence in the wake of Blakely. But, as I first previewed in this post, I have been working on finding Blakely‘s core principle in an article entitled “Conceptualizing Blakely” for the next issue of the Federal Sentencing Reporter.

I have now finished a working draft of “Conceptualizing Blakely” that is fit for public sharing. Though I feel this draft only starts to scratch the conceptual surface of Blakely, I hope I advance the analysis a bit. I heartily welcome reactions and suggestions either in the comments here or via e-mail.
Download working_draft_of_conceptualizing_blakely.rtf