Certified for great commentary

Not surprisingly, the Second Circuit’s decision in US v. Penaranda to dust off 28 U.S.C. § 1254(2) to certify question to the Supreme Court has generated thoughtful buzz in the blogsphere. Read here the thoughts of Eugene Volokh at The Volokh Conspiracy or those of Marty Lederman at the SCOTUSBlog or those of Larry Solum at Legal Theory. Marty’s commentary is especially insightful for noting that “in the certified questions, it does not appear that the court has asked the Supreme Court to resolve the statutory implementation, or ‘severability,’ question in the event it rules that the Guidelines are constitutionally infirm.” (I have noted challenging questions surrounding severability here.)

For all those academics and law students whose draft articles and notes may not survive Blakely, perhaps we can take comfort that the lower courts are doing their best to create great new topics for commentary.