Oral Argument Summaries: At SCOTUSblog Kevin Russell posts his analysis of the oral arguments in Arizona v. Gant, 07-542 and Herring v. United States, 07-513 . The two cases address different questions involving the Fourth Amendment. Herring asks whether the exclusionary rule should be applied to bar evidence obtained through the search of a defendant whom the police believed had an outstanding warrant but who actually didn’t, while Gant addressed the meaning of the Fourth Amendment itself. Russell states that oral argument was "particularly interesting because the Government and the defendant were called upon to take different sides of the debate in the two cases: in Herring, the defendant argued the virtue of simplicity and clarity, while in Gant it was the Government that was insisting on the need for a bright-line rule." Orin Kerr at Volokh Conspiracy ponders whether Gant is the "sleeper crim pro case of the term?" His post is brief, as he was heading on vacation, but he does urge readers to read the oral argument transcript and notes the potential for future blogs on the case. In another post on yesterday's Gant oral argument, Washington Briefs blogger Lawrence Hurley discusses Justice Scalia's attempt to track the Fourth Amendment back to the founding era and Thomas Jefferson. Apparently, Justice Scalia asked "If you stopped Thomas Jefferson's carriage to arrest Thomas Jefferson and you pulled him off to the side of the road, could you, could you then go and search his carriage?" According to Hurley, "Jefferson, who died in 1826, could not be reached for comment."

The Cost of Calculating Loss Under Sentencing Guidelines: Doug Berman at Sentencing Law and Policy has a post linking to a new article by Robert G. Morvillo and Robert J. Anello in the New York Law Journal. The article argues that "[l]oss calculation often artificially inflates the guidelines to unrealistic proportions." According to the authors, this is because loss calculation is an "amorphous concept" "that equates jail time with often-inflated assessments of loss caused by the crime." According to the article's authors, courts have recently begun to recognize the complexity of loss calculation and attempted to temper its consequences. The article discusses two recent decisions from the second circuit, United States v. Confredo and United States v. Rutkoske, to illustrate this point.