10 May 1999
Date: Mon, 10 May 1999 11:24:44 -0700 Sender: Law & Policy of Computer Communications <CYBERIA-L@LISTSERV.AOL.COM> From: Greg Broiles <gbroiles@NETBOX.COM> Subject: _Bernstein_ and precedential effect and mandates To: CYBERIA-L@LISTSERV.AOL.COM One aspect of the _Bernstein_ decision that I've found curious is the apparent consensus that the decision won't be considered precedent for some period of time (apparently 52 days) after the opinion was issued - I've spent some time looking over the FRAP's, and don't see rules which address this issue. [See DoJ statement.] The FRAP's seem pretty clear with respect to the issue of the mandate, and the relationship of that to the specific relief or judgement in the particular case; but it's not clear to me why the legal conclusions reached by the Ninth Circuit aren't considered immediately in effect. Now, I can see where a prudent person might not want to rely too heavily on the opinion - given that the government every motivation to request rehearing by the panel, rehearing en banc, and review by the Supreme Court - in addition to the likelihood that new regulations will be issued, perhaps any day now. It might well be foolish to bet a lot of money or effort on the assumption that export of crypto from the Ninth Circuit will continue to be unregulated. What strikes me as peculiar is that I've never heard this sort of discussion before, even in other cases where important rights were at stake - for example, the Communications Decency Act cases. My impression is that people are being especially wary of treating this decision as "the law", even though that wariness wouldn't be present if the decision had been less interesting. If Bernstein had lost in the Ninth Circuit, would the Justice Department have agreed that the district court opinion would still be in effect for 52 more days? If not, what's the difference between the way we think about the case when Bernstein wins, and the way we think about the case when Bernstein loses? -- Greg Broiles gbroiles@netbox.com