pageok
pageok
pageok
Additional Briefing On Motion to Dismiss in Lori Drew Case:
Two weeks ago, I posted this Supplement to the Rule 29 Motion to Dismiss in the Lori Drew case. Here's some additional briefing on the motion, hot off the word processors. First, on Tuesday the Government filed this Response to our Supplement. And just a few moments ago, we filed this Reply to the Government's Response.
Guest101:
You forgot to include the docket number in the citation to Condux on pages 5 and 6, and you should have used a short cite to the case on page 6. There should also be spaces between "F. Supp. 2d" throughout (e.g., Black &Decker on p. 6; Layshock on p. 8).(Sorry, nitpicking citations is what I get paid for).
1.2.2009 3:31pm
Happyshooter:
Orin, when I was young our pastor used to give little talks to the children of the church before the sermon. One of the things he said one day has stuck with me for years. "Words can destroy a man, and they can kill." Looking back over the years he was talking about gossip, but it also fits what Drew did.

Make no mistake, she intended to do something evil, she did it, and she killed someone. She may not have wanted to kill, but her evil action did kill.

However, we are a nation of laws instead of justice. The government is trying to twist the laws to give justice in this case-- which would be fine if we were ruled by Duke's and King's courts, but we aren't.

Thank you for holding the government's feet to the fire here even though it means an evildoer will get away with what she did. In the end the system is more important than seeing this woman pay for her wrongful act.
1.2.2009 3:33pm
man from mars:
This is good. I think you will prevail here or at worst (or best) with the Supremes. A few inconsistent quotation marks, and for future reference, when underlining "See, e.g." you have to underline the space between the comma and the "e.g." rather than using two distinct underlines, one under each word. A lot of people get this confused with something like "See id." where you would use two separate underlines. But many judges get this wrong too, I wouldn't worry about it.

You are legally right on the rule of lenity point, although I have never actually seen a rule of lenity argument succeed in these benighted times. But maybe you will.

I guess you cannot comment substantively on the law here, but does anyone else agree with my estoppel by laches due process argument?

Here it is. Let S be a statute with two interpretations, X and Y. Suppose that defendant D is prosecuted for behavior that violates interpretation Y but not interpretation X. I claim D can argue estoppel by laches and due process as an absolute defence, where:

A. Hundreds of millions of people have acted in ways that violate interpretation Y, over a decade;
B. The government has had actual knowledge of numerous such violations over a decade;
C. All these acts were legal under interpretation X, and
D. D was the only person ever prosecuted under interpretation Y.

In this situation, D lacks notice that interpretation Y was intended by the statute. The government cannot change the interpretation of a statute in midstream like this suddenly to criminalize otherwise legal behavior, as doing so should violate due process.

Here, S is the CFAA, X is the normal interpretation that violations of ToS alone are not criminal, and Y is the anti-Drew interpretation that they are criminal. Conditions A-D above are satisfied, so I would argue the change in interpretation violates due process.

I do not have the references to support my estoppel by laches due process defence at my fingertips, but surely it's clear. If you get cert I think you should raise it.
1.2.2009 3:54pm
Awesome-O:
Man from Mars:

I don't see a substantive difference between your example and the case where a law with only one interpretation goes unenforced for decades.
1.2.2009 3:56pm
Awesome-O:
Thank you for holding the government's feet to the fire here even though it means an evildoer will get away with what she did. In the end the system is more important than seeing this woman pay for her wrongful act.

I'm inclined to agree. On the other hand, I'm reminded of a story I heard in law school, possibly about E.B. Williams, but it could have another high-profile defense attorney, and the story might be apocryphal anyway.

It was a couple of decades after WWII, and the famous and skilled attorney was defending a war criminal, probably a fairly high-ranking SS officer, who had been on the lam for years. Or maybe it was just a neo-Nazi who had killed some people. Anyway, the defendant had committed some unspeakably horrible acts.

When the attorney was asked by a prominent Jewish leader why he was defending this man, the attorney replied, "everyone, including this man, is entitled to a defense."

"Yes," the Jewish leader replied, "but he's not entitled to you."
1.2.2009 4:09pm
runape (mail):
man from mars,
lots of people use two underlines for see, e.g., including (I believe) the SG's office. it's certainly an accepted format.
1.2.2009 4:10pm
von (mail) (www):
You are legally right on the rule of lenity point, although I have never actually seen a rule of lenity argument succeed in these benighted times. But maybe you will.

Judge Scalia's opinion in United States v. Santos, 533 U.S. ____ (2008), relied upon the rule of lenity: http://www.oyez.org/cases/2000-2009/2007/2007_06_1005/
1.2.2009 4:14pm
von (mail) (www):
By the way, Professor Kerr: Your reply brief's introduction is an apologia for even filing the reply. It struck me as a bit odd. Do you not have a reply as of right, or did your opening brief indicate that no reply would be filed?
1.2.2009 4:21pm
krs:
von, in supplemental briefing of any kind, I think the usual practice is not to allow a reply. In that sense, the introduction seems appropriate.

Guest101, either you're not actually "sorry" or you need to learn impulse control. The Bluebook hasn't been enacted into law, in case cites the federal reporters sometimes omit spaces in the reporter names (and in the court names), and sometimes breaking the rules makes adds clarity (e.g. in a string cite documenting a circuit split, it's sometimes helpful to order the cases sequentially by circuit instead of in reverse chronological order). Sometimes helpful pedants can be forgiven, but unhelpful pedants are a cancer on the profession.
1.2.2009 4:31pm
Awesome-O:
The Bluebook hasn't been enacted into law

I know the Bluebook forward and backward. On my journal and at every job I've ever had, I was the go-to guy on citations when there wasn't a Bluebook handy. Nevertheless, there's a difference between knowing the Bluebook and being a dick about it.

I direct you to this comic, for a mathematical analogy.
1.2.2009 4:44pm
man from mars:
runape,

You're wrong. There is no justification for using different underscores, it's explicitly forbidden by Bluebook, it's illogical, and it's not accepted practice. That some people do it is not relevant - on the internet, most people use "loose" to mean "lose"; this does not mean the usage is correct.

More evidence from Rule B4.3 of the Bluebook:

"The underline beneath the combined signal see, e.g., is continuous up to but not including the second comma."

This is common sense and contributes to clarity, not just a Bluebook rule. "See, e.g." is a single signal with its own description and semantics. "See id." is the signal "See" applied to a particular reference, namely id. that is not part of the signal itself. I can't post underlines here unfortunately so you have to imagine the italics above appropriately underlined.

von,
Thanks for the reference. I knew Scalia was a big supporter of the rule of lenity, but I always thought he only ever did so in dissents.

Awesome-O,
Thanks for your feedback. You have a good point, but the difference is that in my example supporting the "estoppel by laches due process" defense, the government is leading citizens to rely on a particular interpretation of a law: the government is essentially saying "this is the right interpretation." That is not the case in your example, where the government is choosing not to enforce a law but may do so later. (Your case also raises due process issues but they are closer and different from the ones I discussed).
1.2.2009 4:49pm
krs:
Thanks, Awesome-O. I'm also the "go-to guy" for citations. Implicit in the expression "go-to guy" is that someone else actually seeks out your assistance.

As you note, there is a difference... which is basically my point.
1.2.2009 4:53pm
runape (mail):
man from mars,
I'm not wrong, inasmuch as it's accepted practice where I work. It's also far easier to read see, e.g., with a space, than see, e.g., as one entirely underlined phrase. As for following the Bluebook, I suppose you could be that strict ... but, as someone else said above in more words, why?
1.2.2009 5:01pm
Guest101:

Guest101, either you're not actually "sorry" or you need to learn impulse control. The Bluebook hasn't been enacted into law, in case cites the federal reporters sometimes omit spaces in the reporter names (and in the court names), and sometimes breaking the rules makes adds clarity (e.g. in a string cite documenting a circuit split, it's sometimes helpful to order the cases sequentially by circuit instead of in reverse chronological order). Sometimes helpful pedants can be forgiven, but unhelpful pedants are a cancer on the profession.


Well, my initial comment was meant mostly whimsically, but if you really want to have a discussion about it, I can assure you from firsthand experience that this sort of thing gets noticed, and not favorably, by the district court clerks who read briefs. The Bluebook hasn't been enacted into law, but then neither have the rules of English grammar; breaking either is not generally advisable if you want to make a good impression on the court. If you want to make an argument that any of the errors I noted above were intentional, go right ahead and try it, but I think it's pretty obvious that they were not (particularly since other WL citations did include the docket number).
1.2.2009 5:05pm
Awesome-O:
the government is leading citizens to rely on a particular interpretation of a law: the government is essentially saying "this is the right interpretation."

By "the government" you of course mean "the prosecutor." The prosecutor's longstanding message is "I'm not coming after you if you do X, which the legislature unquestionably outlawed years ago."

I don't think it matters what the reason is that the government doesn't prosecute. Lenity proponents don't try to look into the mind of the prosecutor. All they care about is whether a law has been enforced in the face of open and notorious violations.

So for me your hypothetical just takes us back to an argument about lenity.

And that really just returns us to a general argument about the rule of lenity.
1.2.2009 5:19pm
einhverfr (mail) (www):
Nice work.
1.2.2009 5:19pm
krs:
if you really want to have a discussion about it

I don't. Perhaps I need to learn some impulse control too.

For some odd reason, whenever Prof. Kerr posts Lori Drew stuff and opens comments, I feel like it's somehow wrong to comment on the merits of the case... not sure why.

Anyway, my 2 cents on the actual topic of the post is that the judge in this case should really get around to deciding the legal issue soon. Perhaps he was hoping that the jury would acquit, or that there would be some other way to avoid it... but now that it's squarely presented I wonder what's taking so long. Prof. Kerr seems pretty clearly right on this one.
1.2.2009 5:46pm
einhverfr (mail) (www):

Anyway, my 2 cents on the actual topic of the post is that the judge in this case should really get around to deciding the legal issue soon. Perhaps he was hoping that the jury would acquit, or that there would be some other way to avoid it... but now that it's squarely presented I wonder what's taking so long. Prof. Kerr seems pretty clearly right on this one.


Part of the problem has been the jury instructions and so forth. I am not sure that the judge has a way out in order to rule on the motion 29 ruling without contradicting earlier rulings of his on this case. If past rulings are an indication, the next stop will be the 9th Circuit.
1.2.2009 6:02pm
man from mars:
runape opines,

it's accepted practice where I work. It's also far easier to read see, e.g., with a space, than see, e.g., as one entirely underlined phrase. As for following the Bluebook, I suppose you could be that strict ... but, as someone else said above in more words, why?


Virtually everything about your post is annoying and illogical. Let's take it in order.

First, the fact that something is "accepted" where you work is entirely irrelevant to the question of whether it's correct. I have seen workplaces support many sloppy and indefensible practices. This urge people have to justify their own bad practices and impose them others is one I find irritating.

Second, what is your evidence that "See, e.g." with your "runape" style of underlining, in which each word is underlined, is easier to read than the Bluebook's style? I do not see how it can make a difference in the readability, except insofar as it's a distracting affectation. Did "where you work" perform some kind of readability survey before deciding its in-house style was better than Bluebook's?

Third, can you name any other example where a short self-contained phrase is underlined by underlining each word? Common practice is to underline together all words of a phrase whose words belong together, like:

Case names: when you underline Marbury v. Madison, do you you use three underlines or one? (Bluebook uses one for the whole case name - does where you work find this hard to read too?)

Book titles: Does "where you work" underline each word separately when citing book titles? What about journal titles? Why not, if they are "easier to read"?

Fourth, I do not understand your comment that this is a "strict" way to read the Bluebook rule. I quoted the Bluebook rule above. It says to use a continuous underline for "See, e.g." How is this a "strict" interpretation of Bluebook? Are you arguing the Bluebook is ambiguous on this point? It seems like I am adopting the simple, common-sense interpretation of the words, and you and your "work" are creating a lot of hassle by revisiting clear and sensible decisions already made. (Do you do the same thing with spelling - is phonetic spelling also "accepted practice" where your work since it's "easier to read"?)

Fifth, as to "why" follow the Bluebook, there are several reasons. It's a convention. Many courts advise it. Most lawyers have better things to do with their time than invent new citation conventions; and most readers have better things to do with their time than puzzle over all the different conventions all different lawyers find most "readable." Using proper signals is critical for a correct legal argument, and these Bluebook rules tend to force one to be very conscious of exactly which signal one is using, and for exactly which purpose. Finally, underlines generally are continuous where they connect words that belong together in one unit: this is what people are accustomed to, this is how case names and article titles and book titles are formatted, so this is how signals would be expected to work as well.
1.2.2009 6:19pm
Joe Hiegel:
That is, IMHO, a really fine brief, one that tends to devastate the Government's response, and probably my favorite of your filings. Having long wanted to see Wu dispose of this travesty with celerity, though, I am now persuaded that those who hope the conviction will be sustained in order that the 9th Circuit might forcefully reject the Government's theory have it right; in particular I should like to see Kozinski savage the prosecution.
1.2.2009 6:29pm
krs:
I think I'd prefer to see Judge Wu write a clear opinion overturning the conviction and have the government just drop it.

In future cases, Judge Wu's opinion would be the natural first place to look for precedent (even though federal district court opinions aren't binding on anyone), and future prosecutors seeking to enforce TOS'es through criminal sanctions would have to be even more impervious to shame than the prosecutors in this case.

If it requires the Ninth Circuit to finally put an end to this, then that would mean that in addition to the prosecutor, there's also either (1) a judge or (2) a higher-up in DOJ who thinks that the prosecution's theory is tenable.

Yes, Lori Drew did a horrible thing, but that's why we have tort law and real criminal laws.

*finally, to man from mars and others, I admit my guilt in the matter, but can we all please let this stupid Bluebook discussion drop?
1.2.2009 6:35pm
lawgeek:
1) I second Joe Hiegel- the brief was extremely well-done and I am going to save it, as an example of the kind of clarity of expression and brevity I aim for (but rarely achieve).

2) I too was puzzled at the apologia for filing it, however it did seem to fit in with where you were going. And maybe if the judge reads it closely I could see where it all ties together with your substantive points. I have a few questions though:

*are you entitled to file this reply brief as of right, or do local rules require you to get leave of court first?

*what's with the terribly unreadable Courier font you and government use- is that required by some asinine local rule? Even Times New Roman looks better than that. Also, and I know this is trivial, but the typesetting would've looked better if you'd used justified spacing to make the margins line up on both sides. Put all this together with the underlining and it makes it look like it was all hammered out on an old-timey typewriter, or produced by a DOS-based word processor.

*I'm often struck by sacramental intros such as "Comes now defendant," a little better than "Now into court, through undersigned counsel, comes", but not by much. At least that is only in your initial pleading though and not your memo. I regularly see lawyers waste 50-word introductory paragraphs saying who's filing what memo, and wonder if the clerk didn't fall asleep before the second graf.

Seriously though, great brief.
1.2.2009 6:45pm
Reader5000:

Make no mistake, she intended to do something evil, she did it, and she killed someone. She may not have wanted to kill, but her evil action did kill.

However, we are a nation of laws instead of justice. The government is trying to twist the laws to give justice in this case-- which would be fine if we were ruled by Duke's and King's courts, but we aren't


This is not an accurate interpretation of the facts of this case at all. Drew, much like Meier, is the result of American consumerism and mineral depletion of the industrialized food supply. Being of a lesser intellect, and of already having completed the traditional child-bearing associated rituals, her soul knew of no other points of significance or interest in her dull and monotonous albeit comfortable life than that of the social milieu of her daughter. Although we can understand the instinctual impulses of maternal protection that apparently instigated her creation of the Myspace account, we cannot understand their realization in the creation of said account. A rational human being of sufficient intellect not suffering from the neural malaise of a nutritionally deficient diet and spiritually/emotionally deficient lifestyle would not take it upon herself to directly insert herself into the dynamics of her daughter's social life. This is a deeply perverse action indicative of mental illness. I cannot agree that Drew "intended to do something evil" as the mental and nutritional environment in which she existed does not logically permit such agency.

What is legally pertinent of course is not the "evilness" of Drew but the government responding to the hysterical lynch mob of the public sentiment by utterly decimating extant law, as demonstrated by the defendant's briefs.
1.2.2009 8:32pm
Daryl Herbert (www):
The government's brief is much better.

1 - Nobody cares about Bluebooking

2 - You're still not putting sufficient effort into getting the text to line up with the numbers on the left side of the page. People DO care about that, because it makes the brief easier to read.

Cross your eyes so everything gets blurry. Then compare your brief to the government's. The lines line up with the numbers. The government wins, hands down.

P.S.: you can't "utterly decimate" anything, because utterly means "entirely," and "decimate" means "to kill/destroy 10%"
1.2.2009 9:11pm
OrinKerr:
Daryl Herbert,

I will leave to you and the other commenters whether the most important part of a legal brief is Bluebooking or left-margin formatting, but the word "decimate" has multiple meanings, one of which is "to destroy a great number or proportion of." Thus, I believe you can in fact entirely decimate something.

From dictionary.com:

dec⋅i⋅mate
   /ˈdɛsəˌmeɪt/ Show Spelled Pronunciation [des-uh-meyt] Show IPA Pronunciation
–verb (used with object), -mat⋅ed, -mat⋅ing.
1. to destroy a great number or proportion of: The population was decimated by a plague.
2. to select by lot and kill every tenth person of.
3. Obsolete. to take a tenth of or from.
Origin:
1590–1600; < L decimātus, ptp. of decimāre to punish every tenth man chosen by lot, v. deriv. of decimus tenth, deriv. of decem ten; see ate1
1.2.2009 9:21pm
Displaced Midwesterner:
Another point of legal citation and style, since that seems the focus here: both the defense and government briefings contain the atrocious use of underlining instead of italics. One thing Justice Scalia and I can agree on is that underlining is a relic of the pre-word processor era that has no place in modern times. Also, I don't know if it is local court rule or what, but I have always found line numbers in briefing more annoying than useful.
1.2.2009 9:22pm
Soronel Haetir (mail):
A few things,

1) Line numbers are horrible for those of us who read these things with text-to-speech software, the numbers are incredibly jarring.

2) I too wish the judge would get off his duff and make a ruling. I'm not sure that I even care which way he goes at this point.

3) I can think of a couple cases right off where Scalia was in the majority on lenity grounds. The DUI not being a crime in the same category as burglary, arson etc. And the payment of employees of a numbers racket not being money laundering. I also seem to recall that he's been in the majority a few other times on menity grounds.

4) Given that in this case the main defendant isn't even alledged to have sent the most offensive messages, why is she getting the massive truckload of crap dumped on her?
1.2.2009 9:50pm
David Schwartz (mail):
I can find nothing to dislike about the reply brief, excellent work. It's short. It's readable. It precisely identifies the critical flaw at the heart of the government's argument in a way that cannot be missed. This is far better than a tedious, point-by-point refutation.
1.2.2009 9:51pm
Waldensian (mail):

*what's with the terribly unreadable Courier font you and government use- is that required by some asinine local rule? Even Times New Roman looks better than that. Also, and I know this is trivial, but the typesetting would've looked better if you'd used justified spacing to make the margins line up on both sides.

I can't help but jump into the debate over meaningless briefwriting issues: I agree that Courier is awful (though often required), but why make it even worse by right-justifying it? Yikes.

Meanwhile, why does everybody call this the "Lori Drew" case instead of just the "Drew" case?
1.2.2009 11:28pm
Realist Liberal:
Awesome O~

It was a couple of decades after WWII, and the famous and skilled attorney was defending a war criminal, probably a fairly high-ranking SS officer, who had been on the lam for years. Or maybe it was just a neo-Nazi who had killed some people. Anyway, the defendant had committed some unspeakably horrible acts.

When the attorney was asked by a prominent Jewish leader why he was defending this man, the attorney replied, "everyone, including this man, is entitled to a defense."

"Yes," the Jewish leader replied, "but he's not entitled to you."


I vaguely remember that the attorney followed up with "If not me then who?" (Maybe I added that in my head.) I think that is equally appropriate in this case.

I also have to add my two cents to the justify alignment. I personally think justified is horrible. It messes with the spacing and makes it harder to read. I've heard (and I believe based on my own experience) that our eyes and brain use spacing to aid in our reading and comprehension. Also, I know that many courts (including the two courts I work in the most) ban justified by local rules.

Lastly, I think the brief is incredibly well written. I completely agree with the defense in this case. And that is strange because I rarely agree with a defendant on constitutional issues. While I'm moderately liberal in almost everything, I tend to be pretty conservative on crim pro issues.
1.3.2009 2:30am
Realist Liberal:
One question, if the judge grants your Rule 29 motion, is that appealable by the AUSA? If there is an appeal, do you think you will be involved in that?
1.3.2009 2:34am
devil's advocate (mail):
Man from mars,


does anyone else agree with my estoppel by laches due process argument?



I agree generally with your notion that there is a constitutional issue in cases like this. Essentially, one should read the rule of lenity as a constitutional rule for constructing statutes if one is to afford that power to resolve ambiguities to judges in the first place.

I think Awesome-O is right that the concept of lenity interacts in this case, but I don't really see your argument as process oriented, it is essentially an equal protection argument which raises a Clarence Thomas style formalist problem, equal protection applies only against the states (converse of the 1st amendment on religion).

Asssuming without deciding, i.e., without extensive citation for the proposition, that due process substantively incorporates the concept of equal protection, I agree wholeheartedly that the pattern of enforcement is a critical semiotic to telegraph what behavior rises to the level of criminal.

For this reason, and without debate because it was a matter of state law, I saw Lawrence v. Texas as an equal protection case, not a 9th retained right or 14th amendment substantive due process dispute with the legislature over the moral choice embodied in the statute. Further, as with the longstanding rule of lenity, I saw an interaction in Lawrence with 4th amendment that could logically have cabined any resulting rule -- allowing the equal protection ideal out of pandora's box a bit at a time.

The narrow ruling in my mind is that the plain view doctrine pursuant to a legal search for other criminal activity should not bring under its purview evidence of crimes not commonly sought to be exposed and prosecuted. That is quite different from announcing a rule that could be taken as rewriting lawbooks because of a lack of prosecutorial resources. Obviously one complicated question is the breadth of such prohibition jurisdicitionally, i.e., if one county enforces and the next doesn't, should that amount to 4th amendment exclusion in the county without enforcement or does any level of enforcement within the state (or nation in the case of federal law) insulate the evidence from exclusion.

It seems to me that the government has adopted a ridiculous view of the statute. Forgetting the question of authorization which I think well managed in your reply especially, I think the question of whether the conduct was interstate ought to be open despite the media. Because although not reproduced in the government brief 18 USC at 1030 a (2) actually says : "if the conduct involved an interstate or foreign communication" and it seems to me that this clearly involved the most local gossipy non-interstate communication imaginable, despite the interstate capabilities of the internet. Notice I'm not making the case here that federal jurisdiction is constitutionally barred even if I think the movement of such communications on a network that has interstate capacity and may remotely locate serves is tenuous in elevating such local conduct to interstate notability, I argue that the language here require the communication toe be interstate in nature. The nature of the communication was, rather, intravillage.

Secondarily, what was the actual "information obtained". If the information is really obtained from a third party that intended to desseminate it widely without evidence of reliance upon some security represented by the terms of service, then the information is not from the computer as such. In any event it does appear that the drafters or this statute separated its broader and more particularized claims, partly for the purpose of providing different penalties but perhaps with regard to making constitutional severance easy as well.

Interestingly, if I were prosecuting this case I might have inquired into a different component of 18 USC at 1030 (a)5 (A)(iii) which might be considered to speak more directly to the circumstances, albeit it is not evident that the elements could all be proved as a question of law it clearly would diminish the breadth of the government claim.:


intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage;

and
(B) by conduct described in clause (i), (ii), or (iii) of
subparagraph (A), caused (or, in the case of an attempted
offense, would, if completed, have caused) -
(i) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other
protected computers) aggregating at least $5,000 in value;
(ii) the modification or impairment, or potential modification or impairment, of the medical examination,
diagnosis, treatment, or care of 1 or more individuals;
(iii) physical injury to any person;
(iv) a threat to public health or safety; or
(v) damage affecting a computer system used by or for a
government entity in furtherance of the administration of
justice, national defense, or national security;


so then the question in law arises whether the conduct of the defendant was the proximate cause of the physical injury given that it was actually self inflicted, and/or whether damages amounting to more than $5000 can be said to have been caused by the defendants actions.

As prosecuted, the case does seem to be bad case making bad law if it is not reversed. While the brief is excellent on the question of authorized use, the lenity argument and equal protection ideals could be further fleshed out although they appear preserved in the sense that the government acknowledges defendant's argument that "everyone does it". But the argument is more than that, of course, it is that "everyone does it and the government has no intention whatsoever of prosecuting them, regardless of resources provided". That seems to me to be constitutionally questionable despite the immense prosecutorial discretion afforded in our legal tradition.

Brian
1.3.2009 12:22pm
devil's advocate (mail):
grrr. how about comment editting for new years? You can download plugins for this.

Anyway, I thought I had stricken my comment that the government brief didn't include the interstate requirement from 18 USC at 1030 (a) 2, because it does.

But I maintain the point of the view that this plain language speaks about the nature and target of the communication, not the nature of the computer system upon which it is undertaken. I do not have a memory of the original posts to myspace on these accounts, but, as I recall this was purported to be people communicating within a close geographical neighborhood even though they were using means that reached across state lines.

Brian
1.3.2009 12:30pm
einhverfr (mail) (www):
Realist Liberal:

I also have to add my two cents to the justify alignment. I personally think justified is horrible. It messes with the spacing and makes it harder to read. I've heard (and I believe based on my own experience) that our eyes and brain use spacing to aid in our reading and comprehension.


A lot of it depends on how sophisticated your typesetting software is. Oh wait... typesetting software isn't generally used on legal briefs, so I wholeheartedly agree.

Justification has some benefits regarding how we perceive space on a page, but absent proper autohyphenation and kerning, it does make things harder to read.
1.3.2009 4:34pm
von (mail) (www):
von, in supplemental briefing of any kind, I think the usual practice is not to allow a reply. In that sense, the introduction seems appropriate.

Your explanation doesn't cure my confusion. Generally, if a reply is prohibited, one must move for leave to reply. There's not even a pro forma motion here -- just an odd statement regarding counsel's assumptions regarding the utility of a reply (as though such assumptions were already known to the Court ... or why would the Court care what counsel assumed?).

A minor point, so don't get me wrong: I thought that the brief as a whole was strong. It seems that there are several better ways of handling the intro, whatever the particular circumstances at issue here.

[Yes, yes, everyone's a critic.]
1.3.2009 5:08pm
Steve2:
Does anyone have a good cite for a case that explains the why of "fraud in the inducement does not vitiate consent" element that shows up in the Supplement (or is it in the textbook)? Obviously, the brief, and what it cites, explains that, but I'm curious about the reason.
1.3.2009 11:54pm
OrinKerr:
Steve,

The reason is that tricking someone as to *why* they are doing something is quite different from tricking them as to *what* they're doing. In the former case, a person chooses to do X; in the latter, they never get to make that choice.
1.4.2009 1:08am
Jaynie59 (mail):
The Lori Drew case epitomizes what's wrong with the internet. Too many people think their opinion is just as valid as anyone else's because they have the opportunity to express it.
1.4.2009 7:33am
David Schwartz (mail):
Steve2: And, of course, it has to be this way. Otherwise, private individuals get to write criminal laws, with none of the normal safeties.

I don't get to charge my daughter with car theft because she stayed out after midnight even though that was a condition of borrowing my car. You can't get to charge a man with rape because he doesn't call you the next day. And uploading "bad stuff" to YouTube is not computer fraud even though their ToS says you can't.
1.4.2009 12:35pm
JGT (mail):
Is the argument set forth at pp. 4-10 of the reply brief, i.e., that the government's reliance on cases applying the statute in the civil context is misplaced, at odds with the Supreme Court's decision in Leocal v. Ashcroft, 543 U.S. 1, 12 n.8 (2004) (citing United States v. Thompson/Center Arms Co., 504 U.S. 505, 517-518 (1992), and holding that where a statute has both criminal and non-criminal applications, it must be construed consistently in both contexts)? Application of this interpretive principle could well call into question whether the decisions on which the government relies were themselves correctly decided (because, for example, they failed to apply the rule of lenity in the civil context), but it does seem to undermine the defendant's argument that reliance on those cases is misplaced simply because they involved application of the statute in a civil context.
1.4.2009 1:39pm
Tammy Cravit (mail):
Random comment for the font police (and lawyers who have to file briefs in courts that mandate the use of monospaced fonts) — Windows's Courier New font is much lighter when printed than the traditional Courier font used by typesetters (and Macs). If you're writing on a Mac, Courier will print much darker and more legibly than Courier New. Also, HP has a free Dark Courier font that prints very legibly — you can download it from here.

As regards the reply brief, I think Prof. Kerr has done a good job of illuminating just how frightfully ridiculous the government's argument is here. Transforming the breach of a contract into a criminal matter has very potentially far-reaching ramifications that go beyond just the First Amendment. While I happen to think Ms. Drew's conduct in this matter was reprehensible (and I hope she feels great remorse at the outcome she created), sacrificing our legal system to create "justice" in this case seems to me a trade not worth making.
1.4.2009 1:43pm
Steve2:
Professor Kerr, I don't understand that distinction you make, as it doesn't seem possible to me to trick someone as to why they're agreeing to something without tricking them about what they're agreeing to. To use Mr. Schwartz's example of his daughter and his car, if a condition of using the car is that it be back by midnight, then that's what was consented to, and it seems to me that at midnight he should be able to charge her with theft since use of the car past midnight wasn't consented to. Or I guess the way to put it is, if you get someone to agree to X through misrepresentation, then they've agreed to X - but isn't what really happens an unagreed-to Y, not X? To illustrate, using People v. Donnell which you cited in your supplement, the facts as your supplement describes them leave me thinking the inducive fraud meant that what was consented to was Ernest Carl Johnson using a car, which isn't what happened. And so I'm not seeing the distinction there between "why" and "what" with the consent, and I'm trying to figure out why you and others - including the authors of the case law - do see that distinction.

Is it just that I have an atypically narrow understanding of consent? I'll admit, my understanding is that consenting to a thing means consenting to one set of particulars, and any deviation from them is a whole new thing - and thus something that wasn't consented to. Is that not the way the idea's treated in law and other people's thinking?
1.4.2009 11:02pm
David M. Nieporent (www):
Professor Kerr, I don't understand that distinction you make, as it doesn't seem possible to me to trick someone as to why they're agreeing to something without tricking them about what they're agreeing to. To use Mr. Schwartz's example of his daughter and his car, if a condition of using the car is that it be back by midnight, then that's what was consented to, and it seems to me that at midnight he should be able to charge her with theft since use of the car past midnight wasn't consented to.
Steve: let's suppose your daughter says, "Can I borrow the car? I want to go to the library and study," and you say "Yes, but be home by nine." She comes back at nine. The next day, you find out that she actually went to the mall with her friends rather than the library. What do you think would happen if you tried to file a crime report?

Let's suppose that I hook up with a woman at a bar, and I tell her that I really like her and want to spend lots of time with her. She sleeps with me. I don't call her again; turns out that I really wanted a one-night stand. Have I raped her? She consented based on false pretenses, after all. Does that mean she didn't consent at all?
1.5.2009 12:53am
man from mars:
Just to underscore my point about underlining in the context of "see e.g.": in "id." the underline always runs under the period. (Rule B5.2) (In proofing it is hard to figure out if that period was properly italicized when the author used italics instead of underlines - but by the time the judge is reading your brief closely enough to get annoyed at mis-italicized periods, you've won, so I consider this point moot.)

Nieporent
Re fraud in the inducement and consent - Posner has a long discussion of this in Desnick v. Am. Broadcast. Co., 44 F.3d 1345 (7th Cir. 1995), in which he goes over the issue of when fraud vitiates consent. Unfortunately, I never understood the passage, and I have always been curious about exactly what he meant. Your analogies are extremely clear, however, best I've seen on this point. Perhaps some day I will understand the Desnick case. (I doubt it can be cited for the Drew case though, it's too head-spinningly complicated at this stage of the litigation).

Herbert
You are correct as to "utterly decimate": the phrase is improper as it abuses the etymon. I note that I did not see the phrase in the Reply, however, and so I don't know why you brought it up.

Cravit
Interesting links, thanks. This underscores my point that life was simpler and better-looking in the old days when briefs were typed on typewriters by secretaries, and lawyers did not have to double as amateur typographers.
1.5.2009 2:27am
David Schwartz (mail):
Steve2: Sure, that's what consent is in a civil context. But we're talking in a criminal context. In a criminal context, using a car without consent means using a car without the person consenting to you using their car. It doesn't mean using the car in a manner they didn't consent to.

The criminal doctrine must be much narrower than the civil doctrine. For the reasons we have explained.
1.5.2009 11:20am
More importantly . . .:
the word "decimate" has multiple meanings, one of which is "to destroy a great number or proportion of." Thus, I believe you can in fact entirely decimate something.


Kerr:

Regardless of the less specific (i.e., not strictly 1/10th) modern meaning, the word still denotes a purely partial destruction of something. To say "utterly decimates" betrays one's poor comprehension and/or sloppy thought process, despite the modern meaning.

Your pursuit of purple prose is sad; your defense of this specific instance is reflexive and ill-considered.
1.5.2009 7:41pm
David Schwartz (mail):
I can't believe I'm adding to this argument, but I have no problem with the phrase "utterly decimate". It means to weaken all of something. To "decimate" is, roughly, to weaken something by removing or destroying most of it. To do so "utterly" would be to weaken all of something by removing almost all of it.

It seems to me that this is what Reader5000 meant by the phrase. Law would be "utterly decimated" in the sense that all of it would be significantly weakened. (Though, obviously, some hyperbole was intended and came through clearly.)
1.5.2009 9:09pm
More importantly . . .:
Schwartz: your feelings about the gestalt of "decimate" are a far cry from what it actually means. At least Kerr stuck to its dictionary definition, unhelpful as it really is to his point.
1.7.2009 1:04pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.