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September 24, 2008

Busy day in the Ninth Circuit

The Ninth Circuit today issued these three opinion of note for sentencing fans (though technically one of the cases involves only a non-sentencing constitutional issue):

September 24, 2008 at 02:05 PM | Permalink

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Comments

I certainly hope that they appeal US v. McCalla or a case like it sooner or later. Child pornography is easily distinguishable from Gonzales v. Raich. One of the key factual foundations of Raich is that marijuana is a plant and it is, as a practical matter, impossible to determine where it was grown. This gives weight to Congress's desire to regulate. Unlike marijuana, it is easy to determine, in most cases, exactly where the pornography was produced. This specificity weakens a Commerce Clause claim.

But mostly I want to see it appealed just to watch Justice Scalia squirm. It is he who is always claiming that Congress's factual finding are without merit. Nowhere is this more true than in child pornography, where almost every single Congressional finding is untrue on its face. I am sure, of course, that he will find a reason to uphold this case, but it will be most amusing just to watch how he wiggles around his principles to get the result consonant with his values.

Posted by: Daniel | Sep 24, 2008 2:37:40 PM

What makes you think that anything will make Scalia squirm, Daniel? I mean, its been over 15 years since he admitted in Lucas v. South Carolina Coastal Commission that he supports the "original" meaning of the Constitution, unless, of course, the undisputed original meaning of a Constitutional provision (and think about how seldom it is that the original meaning of the Constitution is undisputed) reaches a result he doesn't like.

Posted by: Zack | Sep 24, 2008 4:36:32 PM

The judge in Gomez should have followed the lead of other courts in providing an alternative basis for the sentence. i.e. taking everything about the defendant and the case into account he would still impose the given sentence.

Posted by: Soronel Haetir | Oct 4, 2008 11:36:47 PM

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