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

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