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The Revenge of Mullaney v. Wilbur: U.S. v. Booker and the Reassertion of Judicial Limits on Legislative Power to Define Crimes


Ian Weinstein


Fordham University School of Law


Fordham Legal Studies Research Paper No. 84

Abstract:     
This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave it to legislators who did not seem disposed to exercise their authority too broadly. By the late 1990's the tide had shifted and the Court turned sentencing doctrine on its head to take power over criminal law from legislative bodies inclined to push the limits of their power and transfer it back to a newly cautious judiciary. This article explores how that shift in power was informed by changing social and political conditions and was accomplished through doctrines regulating the Sixth Amendment right to trial.

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Date posted: April 19, 2005  

Suggested Citation

Weinstein, Ian, The Revenge of Mullaney v. Wilbur: U.S. v. Booker and the Reassertion of Judicial Limits on Legislative Power to Define Crimes. Fordham Legal Studies Research Paper No. 84. Available at SSRN: http://ssrn.com/abstract=706605 or http://dx.doi.org/10.2139/ssrn.706605

Contact Information

Ian Weinstein (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
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