Part II of this Article will examine the historical importance of punishment as a litmus test in the common law in finding the elements of an offense. In Part III, the historical approach used by federal courts when value or quantity was at issue will be analyzed in order to round out the pre-McMillan framework. Part IV will discuss the McMillan decision, as well as the post-McMillan regime. Part V will analyze Jones v. United States, the case now pending before the Court, in which the Court may have its last chance to correct the error of McMillan and clarify exactly what facts need to be proved to a jury in the twenty-first century and why.
Richard G. Singer and Mark D. Knoll, Searching for the "Tail of the Dog": Finding "Elements" of Crimes in the Wake of McMillan v. Pennsylvania, 22 SEATTLE U. L. REV. 1057 (1999).