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