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INTRODUCTION 1242 I. SUMMARY OF PRESUMPTIVE SENTENCING GUIDELINES, THE BLAKELY RULE, AND STUDY DATA 1245 A. Presumptive Sentencing Guidelines in the States 1245 B. Why Study the Adjudication of Aggravating [...], This Article reveals how five states with presumptive (binding) sentencing guidelines have implemented the right announced in Blakely v. Washington to a jury finding of aggravating facts allowing upward departures from the presumptive range. Using data provided by the sentencing commissions and courts in Kansas, Minnesota, North Carolina, Oregon, and Washington, as well as information from more than 2,200 docket sheets, the study discloses how upward departures are used in plea bargaining, sometimes undercutting policy goals; how often aggravating facts are tried and by whom; common types of aggravating facts; and the remarkably different, sometimes controversial interpretations of Blakely and Alleyne v. United States that frame each state's practice. This new information is essential for any evaluation of presumptive--sentencing guidelines systems or the appropriate scope of the doctrine established in Apprendi v. New Jersey.

INTRODUCTION 687 I. ARTISTIC EXEMPTION CLAIMS 692 A. Categorization Claims 696 1. Land Use 696 2. Threats and Lies 699 3. Taxes 703 B. Balancing Claims 706 1. Privacy and [...], In Masterpiece Cakeshop, the baker's lead argument to the Supreme Court was that his cakes were artworks, so antidiscrimination laws could not apply. Across the country, vendors who refuse to provide services for same-sex weddings continue making similar arguments on behalf of their floral arrangements, videos, calligraphy, and graphic design, and the Supreme Court will again be asked to consider their claims. But arguments like these--what we might call "artistic exemption claims," akin to the religious exemptions so much more widely discussed--are actually made throughout the law, not just in public accommodations cases like Masterpiece Cakeshop. In areas ranging from tax and tort, employment and contracting discrimination, to trademark, land use, and criminal law, litigants argue that otherwise generally applicable laws simply do not apply to artists or their artworks. This Article collects these artistic exemption claims together for the first time in order to examine what determines their occasional success--and to ask when and whether they should succeed. The surprising answer is that claims of the form "x is protected because it is art" should never succeed. The category "art" is constitutionally irrelevant. Contrary to widespread assertion among scholars and advocates, a work's status as art has never done any work in the Supreme Court's First Amendment case law. Instead, the Supreme Court emphasizes individual mediums of expression--categories like paintings and protest marches, books and billboards. Compared to the category "art," these mediums of expression are better defined, easier to administer, and more relevant to that which the law most likely and legitimately wants to regulate. Yet they have gotten far less attention from scholars and lower courts than they deserve. Understanding the constitutional irrelevance of art--and the constitutional importance of mediums--casts new light on some of the most prominent recent and looming artistic exemption claims at the Supreme Court: not just those made in same-sex wedding cases like Masterpiece Cakeshop and its kin but also those made in challenges to race discrimination in television and in criminal threat prosecutions brought against rappers. Asking whether a cake, a TV show, or a rap song is art uselessly distracts from the difficult issues actually at stake in those important cases and in First Amendment doctrine more broadly.