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U.S. v. Todd (9th Cir. - Nov. 15, 2010)

By Shaun Martin

Westlaw gets some free advertising in both the majority and concurring opinions here.  With both Judge Noonan and Judge Milan Smith using their law clerks' anticipated use of Westlaw as examples of when you can "know" that a future event will transpire.  On the theory that when you give something valuable to someone for free, they will indeed use it.  Like crack.

Epistemologically, I think there might be some more work here that could be done by both judges, since there's still a lingering question about whether you truly know that a future event will transpire based upon past events -- and the examples that both judges use only really show (in my mind, anyway) that you have a legitimate reason to believe that Future Event X will transpire.  Sure, maybe all ten of your previous clerks have used Westlaw, so when your eleventh clerk enters the room, the odds are she'll use it too.  But do you really "know" that she'll use it?  Beyond a reasonable doubt?  Some people like books.  Others like Lexis.  Others are incredibly lazy.  The quantum level of information necessary for knowledge about a future event seems a little more up for debate, I think, than one might get from reading either opinion in this case.

Two other tangential points.  First, I like that Judge Smith changes his mind after reading the government's petition for rehearing.  People should be open to new ideas.  Ditto for judges.  Whether he's right or wrong, I believe that his demonstrated flexibility is a great attribute.  So kudos.

Second, I found it interesting that Judge Noonan begins his opinion with:  "The statute focuses on those (usually men) who make money out of selling the sexual services of human beings (usually women) they control and treat as their profit-producing property."  Which is fairly moralistic -- not that unusual for Judge Noonan -- and in the context of this case, perhaps rightfully so.

But just take the word "sexual" out of that quote.  It's still totally accurate, right?  (Except maybe change "usually women" to "often women").  Except now no one finds much of a problem at all with this state of affairs.  Unless you're a total Marxist.  Indeed, this state of affairs is now affirmatively valuable.  What Judge Noonan describes is the essence of capitalism.  Something we're totally excited about.

So changing a single word dramatically changes our normative reaction.  Which says something.

Full post as published by California Appellate Report on November 15, 2010 (boomark / email).