Best on Elements, Sentencing Factors, and the Right to Jury Trial

Eli K. Best has posted Elements, Sentencing Factors, and the Right to a Jury Trial: An Analysis of Legislative Power and its Limits (Yale Law & Policy Review, Vol. 29, 2011) on SSRN. Here is the abstract:

The Supreme Court often states that the decision as to whether a given fact in a criminal statute is an element or a sentencing factor is a question for Congress, but this seemingly straightforward statement masks some complicated subtleties. This Comment explores the extent to which Congress is theoretically free to make these decisions, and the extent to which Congress makes them in practice.