Booker Reconsidered

21 Pages Posted: 16 Jul 2010

See all articles by Jonathan S. Masur

Jonathan S. Masur

University of Chicago - Law School

Date Written: July 15, 2010


In his dissent in Booker, Judge Frank Easterbrook predicted dire consequences if the Supreme Court were to invalidate the Federal Sentencing Guidelines. Those consequences have not arisen, largely because the Court has ducked the implications of Judge Easterbrook’s pragmatic logic (and its own). But in an effort to salvage a set of workable sentencing rules, the Supreme Court has settled upon a division of institutional responsibilities that serves none of the parties involved in the criminal justice system well and fails to address the problem that catalyzed its intervention in the first instance. The Sentencing Commission may not have functioned perfectly, but the Supreme Court’s attempt at ad hoc institutional design seems unlikely to produce any better results.

Keywords: Easterbrook, Booker, Supreme Court, sentencing, sentencing commission, sentencing guidelines, criminal law, criminal procedure

Suggested Citation

Masur, Jonathan S., Booker Reconsidered (July 15, 2010). University of Chicago Law Review, Forthcoming, U of Chicago, Public Law Working Paper No. 311, Available at SSRN:

Jonathan S. Masur (Contact Author)

University of Chicago - Law School ( email )

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Chicago, IL 60637
United States
773.702.5188 (Phone)


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