Kremen v. Cohen

“ pursuit in prejudice’ does not neces ernment was reasonable its ‘[Presumptive probability a sarily indicate statistical charges, Brown on the federal Brown must simply point marks the prejudice; delay actually prejudiced him to show delay courts deem the unreasonable which prevail on his Sixth Amendment claim. enqui- enough trigger [four-factor] to Wilson, 1043; F.3d at Sprouts, 282 1, 112 at 652 n. ry.” Doggett, 505 U.S. attempted F.3d at 395. Brown has not to Considering length S.Ct. spent do so. The time Brown in the Ar- delay and Brown’s lack of reason for the prison kansas was the result of his Arkan- rights, his we cannot diligence asserting in charges, pretrial sas not detention on the of his burden to say Brown was relieved Further, charges. federal Brown not does actually prejudiced him. delay show the that he was anxious assert about the feder- Walker, 714, 716- States v. 92 F.3d United charges delay impaired al or that the his (8th Cir.1996). Indeed, in a ease involv charges. defense on the federal See delay, we con ing thirty-seven a month Sprouts, (explaining ways 282 F.3d at 1043 uncommonly long, delay cluded the was defendant). delay may prejudice Doggett the four but went on to consider factors. Id. sum, correctly the district court re- jected speedy by deny- trial claim Brown’s view,

In our the district court com ing his motion to dismiss the indictment. analyzing the four fac mitted no error First, three-year tors this case. Second, in favor of Brown.

delay weighs negligently delay did not government prosecution intentionally delay or

its advantage at tri

gain impermissible some 656-67, 112 Doggett,

al. 505 U.S. at See Contrary to Brown’s claim of

S.Ct. 2686. undisputed shows

negligence, the evidence government reasonably chose not to custody obtain immediate of Brown Gary KREMEN, individual, an prosecution disrupting avoid his Arkansas Plaintiff-Appellant, molestation. The charges gov of child anti- ernment was aware under the IADA, provision Brown shuttling kept custody in federal

would have be Classifieds, Inc., Delaware Online a prosecution until was Missouri the federal Plaintiff, Company, Further, after the federal concluded. soon prosecu learned the Arkansas authorities (thirteen had ended or fourteen

tion COHEN, individual; Stephen Michael an indictment), they filed months after federal Ltd., International a for Ocean Fund Brown inform against a federal detainer eign company; Man Interna Sand pending charges him federal ing Ltd., foreign company; Sport cional trial. speedy how to ensure he received a Management Corporation, ing Houses directions, Brown did not follow the how company; Sporting Nevada Houses Because Brown did not contact the ever. America, company; a Nevada to in Attorney or the district court U.S. Inc., Neva Sporting Houses General for a quire request about his case or his Sir, Douglas, company; William da trial, weighs third factor speedy (BVI) Limited, individual; Fourth, Bank VP gov- Brown. because the against foreign company; Keuls, Andrew an this order. All further proceedings in this individual; Properties LLC, Montano stayed case are pending final action Liability a Compa- California Limited Court, Supreme and this case is ny; Ltd., Defendants, Ynata withdrawn from submission until further order of this court. Solutions,

Network a Delaware I Company, Defendant-

Appellee. Caption and Counsel No. 01-15899. Gary petitioner Kremen is deemed the in this request because appeals he United States Court of Appeals, the district court’s adverse rulings Ninth Circuit. issue caption certified. The is: case Filed Jan. KREMEN, individual, GARY an Revised Jan. Plaintiff-Appellant, Wagstaffe, Urueta, James M. Pamela Grab, Alex K. Kerr & Wagstaffe, Richard Diestel, Bledsoe, Catheart, Diestel, S. Liv- CLASSIFIEDS, INC., ONLINE Pedersen, ingston Francisco, And CA, San Company, Delaware for Plaintiff-Appellant/Plaintiff. Plaintiff, Francisco, CA, Selvidge, Robert San W. Mayock, Michael Law Offices of W. Mi- Pasadena, chael Mayock, CA, Robert S. No. 01-15899 Dorband, DuBoff, Dorband, Cushing & D.C. No. Portland,

King, OR, Dolkas, Henry David CV-98-20718-JW Gray Cary Freidenrich, Ware Alto, Palo & CA, Offner, Robin Robin Offner & Associ- Northern District of ates, CA, Diego, Karcher, Kathryn San E. California, Jose San Gray Cary Freidenrich, Ware San Die- COHEN, STEPHEN MICHAEL CA, go, for DefendanD-Appellee/Defen- individual; dant. OCEAN FUND Gray, Professor, Brian E. Robin D. LTD., INTERNATIONAL Gross, Foundation, Electronic Frontier foreign company; SAND MAN Francisco, CA, San Bode, William H. Wil- LTD., INTERNACIONAL liam Associates, H Bode & Washington, DC, foreign company; for Amicus. SPORTING HOUSES MANAGEMENT KOZINSKI, McKEOWN,

Before: CORPORATION, a Nevada Judges, FITZGERALD, Circuit Judge.1 District company; SPORTING HOUSES AMERICA, OF a Nevada

ORDER company; SPORTING HOUSES certify We to the set forth in Part INC., II of GENERAL a Nevada 1.' Alaska, Fitzgerald, The Honorable James M. sitting Senior by designation. Judge United States District for the District of DOUGLAS, II company; WILLIAM individual; Sir, an VP BANK Certified Question (BVI) LIMITED, foreign 29.5(a) Pursuant to Rule of the Califor- Court, respectfully request nia Rules of KEULS, an company; ANDREW Supreme the California Court to exercise individual; MONTANO adjudicate question its discretion to LLC, a PROPERTIES California law related to Internet domain Company; Liability Limited names and the tort of conversion. This particular case centers on the domain LTD., YNATA name “sex.com.” The decisions of the Cali- Defendants, provide appellate fornia courts no control- ling precedent regarding the certified SOLUTIONS, a NETWORK answer which question, may be de- respectful- appeal. terminative of this We company, Delaware ly Supreme that request Defendant-Appellee question pre- the certified Court answer appear- counsel following is list of your acknowledge sented below. We ing this matter: may ques- decide to reformulate the Court Gary Kremen: appellant tion, for phrasing Counsel of the issue is not our your intended to restrict Court’s consider- Wagstaffe James M. agree ation of the case. We to follow the Street, Spear Suite 1800 provided by answer the California Su- Francisco, CA 94105 San preme Court. 415-371-8500 process only We invoke the certification Solutions, Network appellee Counsel for after consideration and do not do careful Inc.: lightly. procedure so The certification is E. Archer Kathryn questions pres- reserved for state law Street, 401 B Suite issues, significant including ent those with Diego, San CA ramifications, important public policy 619-699-4750 yet by the that have not been resolved appeared for the other- Other counsel request state courts. We certification not coun- parties appeal; named in this those presented legal a difficult issue is because the claims sel are not here because listed but because of deference to the state court parties disposed of related to those were state law matters.1 We have significant on noted, by separate disposition as set out Part in reference to Arizonans for Offi- Arizona,2 43, 62, English v. 520 U.S. cial III of this order. a con- "strengthens primacy Although case involved 1. Certification Arizonans question, the California stitutional neither interpreting supreme the state court in state practice requires that the issue be a rule nor by giving opportunity to rule law it the first Indeed, procedure one. constitutional on an undecided or unclear issue.... Allow- Supreme Court designed to let the California ing defer to state courts in federal courts to it wants to have the first crack decide whether judiciary's such cases reinforces the federal majori- significant and the at a state-law issue sovereignty acknowledgment and fos- of state accept- ty your has of certifications that comity way in a ters values of federalism and ques- involved a constitutional ed have not to state interests.” Jerome I. beneficial Sys., e.g., Design Inc. v. tion. See Cadence Braun, California, Rule A Certification Cir.2001) (9th Corp., Avant! 253 F.3d 1147 (1996). Santa Clara L.Rev. (trade Barge, Tug question); Marin secret (a) (b) Question If L.Ed.2d 170 the answer 117 S.Ct. (1997), obligation to con- of conversion “yes,” have an does the tort that “we name, questions state-law novel to an Internet domain apply sider whether ad- we have been or, should be certified—and specifically, more Inter- failing to do so.” past in the monished with a net domain Community Schools Parents Involved in tangible or other medi- document District, F.3d v. Seattle School um? Cir.2002) (9th (certifying question de- request not to

spite parties’ unanimous Ill (oral certify) arguments heard on certified Washington State Facts Statement 2002). Court October Gary This action stems from Kremen’s quite capable of resolv- Although we (“Kremen”) Network against suit Solu- presented, we should not ing the issue (“NSI”) tions, Inc. the fraudulent question in the first grab reach out to properly-registered of Inter- transfer his simply instance because case involves “sex.com,” name, to a third net domain not, “sexy” issue. We are of novel and party. course, burgeoning case- unmindful of Court, load of A the Inter- background regarding short accept the decision to recognize putting will this case in con- net assist solely certification lies within discre- text. The Internet has been described as your of court. But it is not our role to tion comput- system “a vast of interconnected judgment pri- on the pass advance Court’s computer ers and networks.” See Name. presume certify a orities. We would not to Solutions, Inc., Space, Inc. v. Network your run-of-the mill case to Court nor Cir.2000). (2d Each F.3d 576 n. 1 process would we use the certification to computer to the Internet that is connected sidestep diversity jurisdiction. our In a (“IP”) unique Protocol num- has Internet case such as this one that raises a new and that functions a kind of Internet ber of state law in an arena substantial issue Id. An IP address. number consists application, spirit that will have broad separated by periods. four sets of numbers comity and federalism cause us to seek Early Id. at 576. Internet innovators cre- accordingly certification. We invoke this (“DNS”), System ated the Domain Name procedure under the Rules of system designed easily-remem- to relate Court. with difficult-to-re- bered domain names question of law to be answered is: member IP numbers. Domain names are Is an Internet domain name within the comprised alphanumeric separat- fields subject scope to the tort of by e.g., ed <www.courtin- dots — conversion? fo.ca.gov> the field farthest to the —where (a) right (“.gov” example) Top in the is the apply For the to tort conversion (“TLD”). Level Domain Id. at 577. The property, neces- TLD field second from the is the Second sary intangible property that the Domain; Level and the field third from be with a document or medium? the TLD is the Third Level Domain. Id. tangible other Petroleum, Inc., Cir.1999) (insurance question); Westport Inc. v. and Asmus v. F.3d Bell, (9th Cir.2001) (9th Cir.1998) (em- (tort question); Blue Pac. 159 F.3d 422 Jacobsen, (9th Ridge ployment question). Ins. Co. v. 197 F.3d 1008 letter, cooperative agreement Upon receipt entered of the Under NSI deleted National Foundation into with the Science registration OCI’s of sex .com and re- (“NSF”) 1, 1993, January on NSI became registered it Sporting Houses Manage- TLDs, registrar the exclusive various ment, Inc., one of Cohen’s alter ego cor- including By accepting “.com”. the role of porations, with Cohen listed as the ad- “primary took registrar, responsibili- NSI proceeded ministrative contact. Cohen ensuring quality, timeliness and ty for use the plat- sex.com domain name as a management registration effective form upon which to build a In- lucrative provided” agreement. services under the pornography ternet-based business. As expired September agreement out, it turned the so-called authorization 1998; thereafter other entities have shared letter was a forgery concocted Cohen registrar. the role of domain From or at his behest. NSI claims that there September pro- until April 1993 NSI no was evidence to the authen- public vided registration its service to letter, ticity of the although Cohen dis- During period, paid at no cost. NSF putes that characterization. registering a fixed fee and costs for NSI Approximately eight after months NSI domain names. name, registered sex.com in Cohen’s Kre- NSF, agreement Under its NSI men demanded that reg- NSI reinstate his responsibility “compile undertook and istration of sex.com. NSI informed him authoritative, reliable, up- maintain an and that it would not do so absent a court of registered to-date database” domain order. brought October Kremen names in addition to the conversion tables against suit seeking Cohen and NSI in- registered that index domain IP names to junctive relief damages. and Kremen al- numbers. leged, among things, other that honor- 9, 1994, May registered On Kremen ing Cohen’s fraudulent instruction to domain name “sex.com” with Kremen NSI. registration, transfer the sex.com NSI was by filling electronically did so out and sub- liable in tort for conversion and as a bailee. mitting registration pay- a short form. No brought Kremen also other state law in necessary ment was order to effect the in claims that are not at issue this certifi- registration. registered Kremen sex.com request. cation Classifieds, under his “Online Inc.” d/b/a Ware, Judge of the District Court for (“OCI”) and listed himself as the adminis- California, the Northern grant- District of person. trative and technical contact Kre- NSI, ed in summary judgment favor of men did not use the domain name for concluding that there was “no evidence significant purpose during the 18 months name, registered establishing including that it was that domain OCI. sex.com, in ‘merged or identified with’ a In October NSI received a letter tangible object.... document or other putatively signed on OCI letterhead and Thus, precepts gov- under the traditional president. by OCI’s The letter ad- was conversion, erning the tort of a domain (“Cohen”) Stephen dressed to Cohen and protected proper- is not purportedly him notify authorized NSI view, ty.” extending In the district court’s on OCI’s behalf that NSI should delete the the tort of conversion to include Internet database, sex.com domain name from its complex policy domain names involves a thereby terminating registration. OCI’s appropriately that is more The letter further stated that OCI had no subject objection legislation. The district court registering to Cohen’s sex.com in expressed his own name. also concern that because the liability, extending tort is one of tive answer to the certified question strict following tort to include domain names would “es- reasons: requirement sentially scrap any tangi- question presents The certified an issue bility consistently associated significant precedential public policy and and, tort,” view, “there are its methods importance. Although both California regulate vagaries better suited to state courts and the federal courts have rejected domain names.” court broadly considered conversion connec claim bailment on the basis that “NSI’s tion property, with intellectual such as registration mere of names does not con- secrets, trade neither specifically has con vert its function to bailee.” sidered the state law tort of conversion the context of an Internet domain name. against On Kremen’s claims Cohen re- growing ubiquity With the importance garding approp- transfer letter and the of the Internet and the number of domain name, riated domain the district court increasing exponentially names purported found that transfer letter —-there now some 30 million domain names3 —clar forgery was a that the transfer of the ity in application of California state law domain name void a nullity. was to domain important names presents court registration restored of sex.com to question for scope resolution. The of state Kremen, and a judgment rendered in favor law relating claims to domain ex names million, of Kremen for judgment $65 relationship tends not to the between very Kremen has had limited success in a domain name regis holder and domain enforcing due to fugitive Cohen’s status. trar, but also to relationship between court, appeal argued, On to our Kremen domain name holders par and other third claims, among other that the district court ties. Your Court has counseled that erred in concluding no cause of action courts should be in imposing cautious new for conversion or bailment against exists tort duties where legal impli novel claims registration NSI for its unauthorized of public cate serious policy considerations. sex.com to Cohen. Consideration of Kre- Cal., Regents Moore v. The the Univ. of of men’s claims against stayed pend- NSI are 120, 142, 51 Cal.Rptr. Cal.3d ing request. this certification We resolved (1990) P.2d (noting, in holding that remaining claims between Kremen and patient ownership did not hold in interest Cohen and related unpub- entities they cells after body, left his that “the lished disposition memorandum in which novelty of Moore’s claim express demands we affirmed judgment the district court’s policies of consideration to be served Cohen, in favor of Kremen. Kremen v. 45 by extending liability rather than blind (9th Cir.2002). Fed.Appx. 746 Neither Co- a complaint alleging deference to a legal as hen nor of his related entities are conclusion the existence aof cause of ac parties remaining to the proceedings, in- tion”) (citations omitted). We believe that cluding this certification request. regulation of the Internet under state law considerations, presents such and conse IV quently that this issue should be addressed in the first by your instance Court. Statement of Reasons for Certification We respectfully request that the Califor- Following is a discussion of the back- provide nia an authorita- ground regarding conversion, the tort of Mylene Names, Mangalindan, 15, 2002), See (July Wall St. J. Renew It or Lose Domain Companies It: Forget available 2002 WL-WSJ to Renew Their Often intangible certain forms of the tort parties’ argu- summary of a well as stocks, bonds, notes, re law with re- such as property case relevant ments of conversion re application performances, warehouse spect to the corded Appropriately, Records, See, names. A M Inc. v. ceipts. e.g., Internet domain of an take the form 554, 570, does not Heilman, Cal.App.3d this recitation Cal. Instead, our role advocacy (recorded (1977) memorandum. performances); Rptr. 390 provide the is to requesting court as the California, The Bank Ralston v. of with the rele- Supreme Court (1896) (stock P. 476 Cal. landscape. reference legal We vant Elliot, dividends); Payne v. Cal. law is because California cases (1880) (stock); see also 5 Witkin 341-42 acknowledge that we Although at issue.4 (9th 1988) Torts, Law ed. Summary Cal. on both sides arguments exist reasonable § 613. a issue, do not advocate name to analogizes the domain Kremen pre- question resolution to particular receipt, thus or warehouse a stock interest sented. within the putting firmly the domain that domain dispute not parties The do by the tort of scope property covered propo- This property. are kind of names argues that the domain conversion. NSI be Cali- appears to consistent sition name, computer in a point aas reference “property.” definition fornia’s broad database, level of does not rise 655(property §§ 654 & Cal. Civ.Code See right. certain definite or things which inanimate includes “all your Court Payne, stated manual de- or of capable appropriation at common exists as did longer tort “no however, livery”). parties disagree, remedy law, developed into but has been is the name like sex.com a domain whether per every species of conversion sup- that can intangible property kind of 54 Cal. at 341. property.” sonal At issue is for conversion. port a claim scope of arises as to the then consti- intangible property such whether property. Years coverage for right and sufficiently definite tutes a Ap Payne, California Court after must intangible property whether such Payne language peals stated that other or merged into document also be appli a statement as to “too broad was writing. of ... conversion.” Olschewski cation exclu- of conversion Historically, the tort 282, 288, P. Hudson, 262 Cal.App. 87 proper- rights tangible sively protected con (concluding that 43(Cal.Ct.App.l927) called has At one commentator ty. least “property which is only for version exists “hoary limi- tangibility requirement identified, to and not enough to be specific rea- and essential without “valid tation” indefinite, uncertain intangible and such Ricks, The Conversion D. son.” Val of a goodwill the mere rights as Bursting the Ancient Property: Intangible secrets”). business, fact that or trade Wine, BYU New 1991 Bottle With Trover provides the test of time Payne has stood (1991) Prosser (quoting 1682 L.Rev. the case situation as comfort in this 91-92(W. little on the Law of Torts and Keeton at hand— question ed.1984)). does not answer ed., Keeton, Califor- 5th Page Payne to application of however, namely, the have, long extended nia courts a Cali- interpretation from provide jurisdic- a definite that cases other recognize 4. We from Masters, See, e.g., instructive, court. they not fornia are may be tions Bancroft Inc., (9th Nat’l, 1082 Likewise, 223 F.3d Augusta Inc. v. to Ninth Cir- controlling. citation Cir.2002). interpreting law does not California cuit cases 1042 categorized personal property name that is of a cabinet consisting

Internet domain intangible property. containing This area would of lead cards names greatly thus benefit certification regarding prospective valuable information your conversion); Court. and- actual” customers was Olschewski, Cal.App. at 262 P. (a):

Question 43(finding no cause of action in conversion analysis scope intangible An of the “for unlawful interference with a laun rights requires answering whether route, dry any or property” similar be rights must be reflected some documen- nothing tangible cause “there is definite or tary form. in the ordinary character of the list of provides The Restatement of Torts that customers”). laundry (1) there is conversion of a docu- Where Thus, appear any there do not to be in which intangible rights ment squarely addressing cases damages merged, include the value “merged requirement whether the with” rights. of such law, part of California nor have we been (2) who effectively prevents One the ex- any your able to locate cases from intangible rights ercise of of the kind indicating whether California follows the customarily merged a document is approach. Restatement’s subject liability to a similar for (b): Question conversion, though even the document is your that, itself converted. If pur- not Court determines conversion, poses of intangible property (Second) § Restatement of Torts .At merged must be with or reflected in a Appeal least one California Court of has something document or tangible, we will favorably viewed ap the Restatement’s secondary then have to address a question: Bezenek, proach. Thrifty-Tel, Inc. v. whether the tort of applies conversion 1559, 1565, Cal.App.4th Cal.Rptr.2d an Internet domain name. (1996), the suggested tangi court intangible ble and property may be treated recognized courts have differently purposes of conversion.5 cause of action for goods that application language in Thrifty- merged have been with various kinds of unclear, however, Tel is because the court tangible Thrifty-Tel, media. See 46 Cal. decided not answer the (trade App.4th at Cal.Rptr.2d “[wjhether ... intangible computer [an] disk); Records, floppy secrets on a A & M code, access which was never reduced to 75 Cal.App.3d Cal.Rptr. paper or reflected on a computer disk ... 341(stoek (recordings); Payne, 54 Cal. at subjectf could be the Id. ] conversion.” certificates). Nonetheless, we have been 1565-66, Cal.Rptr.2d unable to locate addressing cases Appeals Two California Court of whether domain name is sufficiently cases subject tangible touch on the documentary merg- give media to rise to er in a claim Although par connection with customer but do for conversion. lists the presented not address the issue ties’ briefs detail the intricacies of the Corp. certification. See Kieberk DNS database and competing arguments Palm- Quinta Co., Springs-La appropriate portion Dev. as to the registry Cal. or 234, 240, issue, App.2d (Cal.Ct.App. P.2d 548 we do any position not take at this 1941) (concluding destroying “tangible juncture. positions parties of the with, traditionally recog- 5. "Courts have merged refused to interests that are not in, nize taking as conversion the something tangible." unauthorized or reflected juxtapose argument space.” serve to on both F.Supp.2d at 852. NSI DNS, argues sides. which consists of multiple servers distributed around the Kremen, According to a domain name is globe, qualify does not type of docu- unique object functional that serves to necessary ment for embodiment. IP corresponding access the address. argues Kremen that a domain name is Again, development our of tort law on and identified with a docu- this novel issue would benefit your ment, namely por- the DNS database or a Court’s elucidation proper treat- tion thereof. The DNS database is de- ment of domain names under California scribed as a decentralized but hierarchical tort law. legal position We advance no database that correlates a domain name competing arguments simply but offer appropriate with the IP address. America a neutral characterization of the competing Online, Huang, F.Supp.2d Inc. v. positions. The dissent’s discussion of the (E.D.Va.2000). 851-52 Kremen character- details of registry the .com and Internet sophisticated izes the database as akin to a provides architecture a useful backdrop compilation documents, of several albeit in serves highlight the merits of electronic form. Kremen likens the em- and goes beyond judicial bodiment of the domain name in data- dialogue central to the pro- certification right possess property base to the which cess. by receipt. a warehouse embodied V

NSI counters that the DNS database is The clerk of this court shall forward a not like a receipt. Relying warehouse order, copy seal, of this under official principally description on the in America Supreme Court, the California along with Online, that although NSI notes the DNS copies of all excerpts briefs and of record numbers, matches domain IP names with that have been filed with this court. The simple “this description incorrectly sug parties notify shall the clerk of this court gests that the DNS is central database days within 14 decision the Cal- refer, to which other computers may when Supreme ifornia accept Court to or to de- decentralized, the DNS is instead a albeit cline certification. If the California Su- hierarchal, process for correlating do preme certification, accepts main appropriate name with the IP ad parties joint report shall file a six months F.Supp.2d dress.” 106 in 851. NSI acceptance after the date of every six stead likens a phone domain name to a months advising thereafter us of the sta- address, number or type proper not the proceedings. parties tus shall ty subject to conversion. See Lockheed notify the clerk of this court within 14 Solutions, Inc., Corp. Martin v. Network days of opinion by the issuance of an 980(9th Cir.1999) 194 F.3d (characterizing Court. registration NSI’s and routing services as IT IS SO ORDERED. product). service rather than NSI relies on the fact that “there is no master direc KOZINSKI, Judge, dissenting. Circuit tory of domain IP names and addresses to refers!;]” instead, computer which a “the When a federal court certifies a case to court, domain database supreme is distributed across the a state it draws from a Internet, servers, aon multitude of name comity. limited reservoir of Certifying the responsible each correlating the IP case deciding shifts difficult work of court, computers addresses and domain names of busy to the state which is often so particular with its ‘zone’ of the domain keeping its own house in order that it 1044 present not are These circumstances laundry. our overflow time for

scarcely has capable of answer- perfectly here. forcing We litigants, burdens also Certification ourselves, is and there questions ing a different both case in the reargue them to with are overrun that courts full of indication costly is and no that process forum—a Cyberspace raising in our the or amici issue. parties lawsuits None of the delay. court con- supreme if implode that we should the hinted will not much as case has so to, at not some urged majority’s us the explicitly questions fronts certify; Kremen spent today; than the already rather many years point the future the citing by common sharpened may well be litigation. issues development the meantime.1 law infatuation prevailing I am aware of the “sacred device—the procedural this Questions The Certified barnyard.” judicial modern cow in our tradition, those law By long common Ask a Madness: Selya, M. Bruce Certified of others do so away property the give who ..., Question 29 Suffolk U.L.Rev. Silly is not about peril.2 This case at their (1995). to use duty have a 677, But we 678 under state the Internet “regulation of rais- sensibly; that case sparingly believes, at see Order law,” majority enough. not as legal questions es difficult Bradstreet, principles of tort general about 1040. It’s v. Dun & L. See Cohen Co. Internet (D.Conn.1986) apply to to the happen 1419, law that Inc., 1423 F.Supp. 629 that type property J.). that’s the justified because (Cabranes, Certification only asks that away. Kremen gave has NSI supreme court only when state rights remedial him the same we other afford guidance, no authoritative provided other gives law that California disarray and in serious courts are ruling. a definitive holders.3 out for question cries (OCI), contact. listing himself encouragement majority 1. The draws Arizona, fired forged stated that OCI had Kre- letter English v. Arizonans for Official 1055, directors had "de- 43, that its board of men and 117 S.Ct. L.Ed.2d U.S. name sex.com” the domain very cided to abandon (1997). was a But different Arizonans Cohen, giving explanation whatsoever just no state law there had from ours. The case generosity. received the singular NSI by popular initiative had passed been but as an enclosure sent letter not from OCI by appellate interpreted the state been never Cohen; explained, courts; indeed, "Because the letter plaintiffs into had rushed direct connection to not have a do[es] [OCI] effort to avoid an obvious court in federal internet, 18, notify 49, request [Cohen] 63 n. S.Ct. Id. at possibility. registration on our urged [sic] be- attorney general had internet state 1055. The called certification, company "Online half....” That have afforded the would which have no Internet connec- would a sensi- Classifieds” opportunity to address courts an state beyond implausible. Yet NSI made no potentially could tion is policy and issue of state tive away giving before ques- effort to contact Kremen a federal constitutional avoided have Here, Judge if name. It’s bit as Rein- S.Ct. 1055. domain Id. tion. saying, "Judge a letter to the DMV hardt sent no constitutional federal there title you transfer to his wants background, not Kozinski lurking even in the you Lamborghini to me—he’d write him- less the attor- state parties themselves—much self, stamps.” he’s out of but urged certification. ney general—have Regents tort, majority's to Moore 3.The citation liability NSI's so 2. Conversion is strict 120, Nonetheless, California, University 51 Cal.3d negligence an issue. is not (1990), Cal.Rptr. thus P.2d reason to question it had no claim that NSI’s against warned the mark. Moore forged authenticity is too misses of Cohen’s letter duties,” "creating] id. registered new tort originally Kremen to bear. much Classifieds, d/b/a, after Cal.Rptr. 793 P.2d Inc. Online to his sex.com

1045 ed., ed.1984); Ames, Page Keeton 5th J.B. poses questions. two majority The Trover, History The 11 Harv. L.Rev. best; difficulty at middling They are of of (1897). 277, pedigree, 277 Because of this certification. Califor- merits neither ... legal the tort “became encrusted long ago answered Supreme Court nia that assumed that the taken rules favor; precedent in Kremen’s first tangible” thing was sort of that one —the dispute us. The before alone resolves in a at a could “find field and later sell the second answer to —which Ricks, market.” Val D. The Conversion of equally to reach —is obvi- don’t even need Intangible Property: Bursting the Ancient ous. Wine, Trover with New 1991 Bottle B.Y.U. 1681, L.Rev. 1685. This limitation was Intangibles I. of Conversion enough people’s worldly harmless when tools, farm goods consisted of livestock and whether, question is majority’s first today it’s a relic. apply the tort of conversion “[f]or then, question, Our first is whether Cali- necessary that intangible property, [it is] clings fornia still to the dated distinction merged with a intangible property be tangibles intangibles. between Some medium.” Or- tangible or other document do, significant states albeit with ad hoc ques- of the quaintness at 1038. The der exceptions commercial to accommodate tion, in more reminis- language couched The Restatement conver- reality. extends servers, gives than postillions cent of POP intangible rights “merged” sion majority pretty good clue (Second) a document. Restatement of long arcana since laid to disinterring legal 242;4 § also cases cited in Torts see fif- originated rest. Conversion courts, Ricks, supra, Many at 1689 n. 26. century remedy against one teenth however, rejected have this distinction al- plaintiffs goods put lost who found a together intangi- and extend conversion to Prosser and them to his own use. See to the Restatement’s regard bles without (W. 15, § test.5 Law Torts at 89 Keeton on the of 838, (satellite (D.Mass.1986) signals); TV rejecting plaintiff's claim under settled 848 Mobile, 146, Weinberg, law, 136, Hosp. Inc. v. 558 Charter Cal.Rptr. P.2d 271 793 id. 909, (Ala. 1990) (drug Moreover, 910-12 abuse So.2d Moore was 479. the issue in Ap programs); Corp. v. treatment Nat’l Sur. property right plaintiff had a whether the 847, Inc., (Ala. 1982) plied Sys., 418 So.2d 850 all, for conversion not whether he could sue Corbin, (software programs); In re Estate concededly property right he to enforce 731, (Fla.Dist.Ct. & n. 1 391 So.2d 732-33 146, Cal.Rptr. 271 793 held. Id. at venture, (interests App.1980) in a business 479. P.2d including goodwill); Northeast Bank Lewi 344, provides: Murphy,

4. The Restatement v. 512 A.2d 348 ston & Auburn 1986) (Me. (future rights proceeds); (1) to receive of a docu- Where there is conversion Co., Ins. 439 Foremost Ins. Co. v. Allstate intangible rights merged, ment in which 600, 378, (1992) 486 N.W.2d 610 n. 3 Mich. damages the value of such include interests); (intangible Boot Puller lien Miracle rights. 443, Plastray Corp., Mich.App. v. 225 Co. (2) effectively prevents the exer- One who 800, (1975) (patent rights), rev’d N.W.2d intangible rights kind custom- cise remand, Mich.App. grounds on other after subject arily merged a document is to a 118, (1978); Schnucks Twen 269 N.W.2d 496 conversion, liability that for even similar to 279, Bettendorf, ty-Five, 595 S.W.2d Inc. v. though the document is not itself converted. names); (trade (Mo.Ct.App.1979) 284-85 (Second) Torts Restatement % (Mo.Ct. Meyer, S.W.2d Brown v. Gas, See, Corp. e.g., GrynbergProd. v. British (exclusive App.1979) newspaper distribution (E.D.Tex.1993) Assocs., areas); p.l.c., F.Supp. Hardesty Benaquista (1959) Cablesys rights); Quincy (intangible contract & C.2d 1960 WL 8370 Pa. D. (intellectual Bar, Inc., tems, property); Evans v. Am. Stores Sully’s F.Supp. Inc. v. 1046 recordings, unauthorized who dant sold made Supreme Court

The California misappropria- “such broadly that holding more than question of the quick work 339, of Elliot, intangible property the 54 Cal. and sale of v. tion Payne in century ago fit not seen from the owner (1880), authority has and 1907 another without 1880 WL Payne 570, Cal.Rptr. in were 142 Defendants at it. Id. to revisit is conversion.” Associates, plain- appropriating of accused & trustees Rasmussen G.S. for dismissal They argued Service, Inc., tiffs securities. 958 Flying Inc. v. Kalitta alleged had plaintiff that ground the (9th Cir.1992), on A & we relied F.2d 896 shares, not conver- of conversion unauthorized held that M Records court share sion approval regulatory certificates. else’s use of someone no action argument: “[T]he rejected asking without again is conversion— law, but it did at common as longer exists was in right whether remedy for developed into a has been at 906-07. Id. in document. merged species personal every conversion Cities/ABC, Capital Corp. v. In FMC added). (emphasis Id. at 341 property.” Cir.1990), (7th the Sev- Inc., F.2d 300 915 chor- hear McKee almost Justice can One law, ex- Circuit, applying California enth as he argument hapless at counsel’s tle rejected tangible-intangible plicitly ana- law of this common disposes elegantly 302, quot- It Id. at 304-05. distinction. chronism. and Keeton’s approval Prosser ed “ passage today quotes majority no perhaps ‘there is that observation ques- “[t]he ventures that Payne why there essential reason very valid and coverage scope of as to the tion then arises intangible conversion’ might not be at 1041. Order property.” Prosser (quoting at 305 Id. property.” precisely thought this was have I would Torts, supra, Law Keeton on the answered, and Payne question that 92). 15, § at “every species.” response was its that however, is own recent telling, our Most all, “[a]ny after property,” “Personal Masters, Inc. v. & decision subject intangible thing that or Bancroft movable (9th Inc., 1082 223 F.3d National Augusta real ownership and not classified to Cir.2000). recognize con- only did we Not Dictionary 1233 Law Black’s property.” con- added). Sex.com, recognized we intangibles; ed.1999) version of (7th (emphasis very intangible issue subject to owner- version of agree, allwe And, obviously, majority of name. A Kremen’s. domain ship namely, here' —a — Payne therefore a domain estate.6 not real held conversion panel it's squarely controls. under Califor- conduct” name is “tortious (Sneed Trott, JJ., 1089 nia law. Id. at law have applying California Courts And, again, we made no yet concurring). tracks, recognizing Payne’s followed any requirement reference without intangible property conversion of in a document. If merged property be in a it was whether inquiring pestering the Cali- worth this is an issue Records, Inc. v. Heil A & M document. today, why about Supreme Court fornia Cal.Rptr. man, Cal.App.3d years ago? Noth- certify it two (1977), to a defen- didn’t conversion applied notwithstanding. Co., contrary Reports WL 5263 C.2d D. & Pa. See, Lafferty, Legal Battle ideas); e.g., Shannon (1955) also United (intangible see Calif., Legal Intelligenc- (9th Drebin, Sex.com Continues 557 F.2d States 1, 2001, ("the er, most valuable Feb. Cir.1977) under (holding that "conversion” Internet”). piece estate on of real intangibles). applies § 18 U.S.C. ing changed has in California conversion rules, disclaims the Restatement’s we’ll law since then. assume that deviations from that canonical text must have been over- notes, majority As the Payne has not sight. Brandéis, Poor Justice fif- whose been universally followed. In Olschewski ty state laboratories have been amal- Hudson, 282, Cal.App. v. 87 262 P. 43 gamated into a single park research run (1927), California’s appellate intermediate by the American Law Institute.7 (with court declared audacity) remarkable that Payne really didn’t mean what it said: The majority identifies no convincing “every species” language reason to believe that the California —the Su- very ratio decidendi of the case—was “too preme Court would overrule Payne. broad a application statement as to the of Speculation that a supreme state court 288, the doctrine of conversion.” Id. at might 123-year-old revisit a precedent and adopted 262 P. 43. It instead the Restate mail its tort jurisprudence back to the ment-like subject rationale that stock is to dark ages is not a ground for certification. conversion only “represented because it is were, If it we would nearly certify every by” tangible case, documents. Id. Another diversity case we hear. Co., Adkins v. Laundry Model 92 Cal.App. “Merged II. 575, The (1928), in a 268 P. 939 Document” followed Test Olschewski on similar facts. None this matters anyhow, because Kremen wins even

If under pointed Olschewski and Adkins had Restatement. majority’s The analysis on intervening point cases where the California is Su lacking. It preme cites a handful Court of state had retreated from deci- Payne, sions, they might observes none give pause. us But involves a do- they did main sort; proclaims name and nothing interpretive of the our they simply refused to faculties exhausted. apply precedent This not a controlling frugal is incorrectly use of privilege labeling it the California dicta. We are bound by the pronouncement affords us. is for highest the state’s Certification re- court solving law; true unless there uncertainties convincing in state it reasons to be presupposes that lieve that it we’ve a diligent would no made longer adhere to its apply effort to judicial earlier the traditional rationale. Olschewski tools and Ad of analogical reasoning. majority kins—like the in our case—offer nothing to it suggest would not. “Certifi can Kremen sue for conversion under cation is inappropriate when ... the su the Restatement because domain his preme court aof state has already ruled in merged document, fact and NSI and its decision is unambiguous.” United frustrated his use it. See Restatement v. States Pend Oreille Pub. Util. Dist. No. (Second) 242(2) (“One § Torts who ef- 1, 1502, (9th 926 Cir.1991); F.2d 1506 n. 3 fectively prevents the of intangi- exercise Comm’r, see also Estate Madsen v. 659 rights ble customarily kind merged (9th Cir.1981) F.2d (Norris, J., subject a document is to liability....”). order). dissenting from certification His intangible property (among other

Searching for another things) right reason to doubt people have who type Payne said, meant what it majority “www.sex.com” into their web browsers invokes the Restatement. Our order sent is, his website. It in standard that, implies Geek, unless a explicitly state right to have the second-lev- Bezenek, Thrifty-Tel, 1042; Cal.App.4th Inc. explicitly Order it left the issue cf. unresolved. (1996), 54 Cal.Rptr.2d 468 Thrifty-Tel, not "fa did Cal.App.4th vorably approach, view[]" Restatement’s Cal.Rptr.2d and IP addresses in with Ms mains one column “sex” associated el .com domain Thomas, See 176 F.3d at 505. another. registry.8 in NSI’s .com IP address ledger fact that the is electronic rath- it, that dispute, nor could majority doesn’t it ink-and-paper than doesn’t make er prop- of his prevented Kremen’s use NSI (this a document dissent is still less it handed sex.com over to Co- erty when online). reading if you’re even document the Restate- only question under hen. The Cal.App.4th at Thrifty-Tel, See property is whether Kremen’s ment 468; Cal.Rptr.2d eBay, Inc. v. Bidder’s cf. registry.9 in NSI’s .com Inc., F.Supp.2d Edge, certainly registry is It most is. NSI’s (N.D.Cal.2000). Web browsers determine list that associates .com do- the master particu- with a what server is associated particular IP ad- in like “sex” with the information mains lar .com domain from Modify an IP in essentially registry.10 a with do- NSI’s address ledger dresses. It’s Addresses, 63 majority's the basic ment of Internet Names and 8. The order describes 8826, 20, 1998); (Feb. Fed.Reg. System and the Milton function of the Domain Name Mueller, Ruling with IP Root: Internet Gover- fact that it associates domain names L. uniquely Taming Cyberspace addresses—sets of numbers that nance and the of FAQs: (2002); computer identify fig.3.5, connected to the In each 194-96 InterNIC The 25, 2002), (Mar. at But it omits System ternet. See Order 1038-39. at Domain Name any actually of how the DNS http://www.internic.net/faqs/authoritative-dns. discussion a beyond the observation that it is works html. "decentralized, hierarchical, process.” albeit Online, (quoting Huang, majority Id. at 20 Am. Inc. almost its entire discus- 9. bases 848, (E.D.Va.2000)). F.Supp.2d assumption on the mistaken that the rele- sion majority’s analyze failure to the DNS and the vant document is the decentralized DNS as a registry plays that NSI’s .com within it only part role whole. Order 1042-43. The of helps explain why can't detect a document it registry the DNS at issue here is NSI's in this case. of .com domains—the .com zone file. NSI’s directory claim that "there is no master registry, also known as the NSI’s .com addresses to domain names and IP which file,” particular ".com associates sec zone computer refers” is true but irrelevant. Oth- par ond-level .com domains like "sex” registries list domains er the second-level ticular IP addresses. If a browser wants to .mil, like; .gov, in .edu and the still others list "www.sex.com,” goes website it find the each the third-level domains within second- following through steps: It looks in a first registry level .com domain. But NSI’s registry "root” to find out who has the list only piece second-level .com domains is the registry says of .com addresses—and root DNS that matters in this case because registry to "NSI.” It then looks in NSI’s .com particular entry registry is Kremen’s in this find out who has the list of sex.com address gave away. registry, what NSI NSI’s .com (now) says "Gary registry Kremen.” es—that whole, not the DNS as is the document in Finally, Gary it looks in sex.com Kremen's property merged. which Kremen’s is registry to find out where the website www. (These registries located. don’t sex.com is Kremen”; actually literally say "Gary they registry "NSI” and 10. NSI’s .com isn't consulted computers. directly every query, addresses of their But because other servers list IP idea.) Thus, copy in the same while the DNS as a and store its information order to it's “decentralized, hierarchical, speed up response If a browser wants whole is a albeit times. address, just may get process,” registry to know an IP it from a NSI’s .com is not—it’s previously copied nearby server that the infor- a list of second-level .com domains and corre addresses; Thomas, sponding in mation from NSI. See 176 F.3d IP document 503-04; Mueller, 48; generally supra, at InterNIC word. See relevant sense FAQs, supra. copy Curiae Electronic Frontier The fact that other servers Brief of Amicus 6-8; registry in for ease of refer- Foundation at Thomas v. Network Solu information NSI’s ence, however, tions, Inc., 500, (D.C.Cir. change the fact that F.3d 503-04 doesn’t 1999); Manage- registry listing Improvement of NSI’s is the authoritative Technical you dends; the registry, change the server computer whose gets Internet traff associated; with which a domain some- ic.12 one expecting my page to find web will be California courts have long held that a yours

sent to It’s imagine instead. hard to shareholder can corporation sue a for con right that’s more closely version if it wrongfully refuses to transfer a document. title to shares on its books. Ralston v. There several analogues Cal., Bank 112 Cal. 44 P. 476 law, .com registry NSI’s the case (1896). corporation A actually gives corporate closest is a share register. away a shareholder’s stock by wrongfully A register share qualifies as a document amending its register share similarly which merged. shares are See Phansal Witkin, liable. See 5 B.E. Summary of Co., kar v. Andersen Weinroth & (9th ed.1988). § Law at 716 (S.D.N.Y.2001) F.Supp.2d (de 641-42 An owner of a domain registry wrong who riving point Payne); Payne, ef. fully gives away registrant’s domain (“[T]he 54 Cal. at 342 certifícate only name is in precisely position. the same evidence of the property; and it is not the Cases where a defendant is held liable evidence, for a transfer on the books for converting a document are also instruc corporation, without the issuance of tive. Plunkett-Jarrell Grocery Co. v. Ter certificate, title the vests shareholder: 784, 222 ry, Ark. 263 (1953), S.W.2d 229 is, therefore, the certificate but additional for example, cited with ”).11 approval in the evidence of title.... relationship Restatement, (Second) see Restatement between a share and a share register is of § Torts 242 notes, cmt. b quite reporter’s similar to that between a do .com involved a main and defendant registry. NSI’s .com who took plain docu the Both book, ments are tiffs databases whose account identify preventing entries him from gets who the particular benefits of a intan his collecting receivables. Plunkett-Jar gible right gets Co., shareholder divi rell Grocery 263 at 233-34. S.W.2d —which Thomas, 505; 143, of .com domains. 176 (1981); F.3d at 422 Mahoney N.E.2d 147 v. 8828; Mueller, Fed.Reg. Walsh, 63 at supra, 601, 605-06, at 196. 16 A.D. 44 N.Y.S. 969 changes NSI entry When. an registry, in its (N.Y.App.Div.1897). by Uncertificated shares other servers over the copy all world the "customarily are not merged definition in” information, updated certificates; typically 24-48 within share merging the document Modifying hours. See Your Name something Domain must be example, else—for the (2002),

Record http://www.net- Phansalkar, register, share see F.Supp.2d sol.com/en_US/help/modify-dnr-06.jhtml. at 642. hold, Payne course; did so not of register it im- 12. A person share the identifies who posed merger requirement shares, no at all. It held owns the the while .com zone file registers that share and share certificates identifies the address the comput- of owner’s evidentiary have the same See function. er. Even if this difference mattered —which Payne, 54 Cal. corollary at 342. But the for seems to hard believe—domain names are merger states that do requirement follow the explicitly linked to their owners in another equivalent document, is that evidentiary these functions the "WHOIS database” main- imply equivalent ability an satisfy (also merg- to by registrar case). tained in this NSI requirement er precisely sex.com, what Kremen's WHOIS record for ex- —which held, F.Supp.2d Phansalkar ample, at 641-42. can be typing retrieved "sex.com” recognize Courts routinely of un- conversion into web interface of NSI’s WHOIS ser- See, ver, certificated e.g., shares. v. currently Haskell Mid- http://www.net- located at 562, Corp., dle States A. sol.com/cgi-bin/whois/whois. Petroleum NSI's WHOIS (Del.Super.Ct.1933); Connelly v. yet Estate database seems to be another document in Dooley, 96 Ill.App.3d property merged. Ill.Dec. which Kremen's they than receivable or accounts stock rate the lost damages allowed court se- or trade goodwill like customer are they paper merely for the accounts, not apply- courts many intangibles 234; also see Id. on. crets— recorded were pro- declined to have Restatement ing the Corp. Funding Pioneer Commercial (Second) Torts tect, Restatement see Inc., Airlines, B.R. 884-85 United notes. reporter’s f & § 242 cmt. Restatement, (S.D.N.Y.1991). Under in an is thus reinforce merely receivable account These considerations compels. domain We Kremen’s law the case book. account conclusion as at least are registry .corn need the don’t NSI’s consequences receivable an account the inevitable spell out related closely cases, time a new every jurisprudence both the state’s account book. and an emerges. intangibles property merely a list of species document construed, recognizes law, narrowly enjoyment of even that’s instrumental all the shares property that conversion rights.13 plaintiffs That’s names. of domain features relevant against arguments imagine can One case. to decide the to know we need all intangibles, of all conversion recognizing names. Some to domain applies none Responsibility Comity and may vaguely defined are intangibles majority of states— great Although notice of fair defendant give not have in our circuit—now including all those Olschewski, right. property See plaintiffs came to procedures, California certification (alluding P. 43 Cal.App. at less its rule adopted It process late. definite inter of a for “evidence need only after endless ago, and years five than names, corporate like est”). domain But See, I. e.g., Jerome bar. from the carping and discrete stock, clear California, Braun, A Rule for Certification regis to a alters title who One rights. (1996). Even L.Rev. 935 Clara 36 Santa on notice fairly domain tered nar- then, adopted a rule much California proper else’s affecting someone may be he in our states of other than those rower ty- permit certification states circuit. Other prop- the difficulty arises when A second court, ac- California any federal a like a “nonexclusive” erty is a of by court certified only questions cepts not secret, of does theft which the Supreme trade United States or appeals the See use. plaintiffs the prevent of actually Rules Court Cal. Compare Court. 27(a)(1). n. 100. But Ricks, 1705-07 & R. 29.5(a) with, Sup.Ct. supra, at Ariz. e.g., intangibles also has Supreme names exclusive Court domain California The stock). certi- accepting A corporate parsimonious defen- just like more (again, been of practically unheard It’s questions. takes a domain name wrongfully fied dant who of another state court entirely. supreme of use for plaintiff its the deprives our of court.14 reject certified corpo- much like more names are Domain which of document case, is conversion there itself wasn’t the document our damages merged, intangible rights are converted; file remained .com zone "Merged” rights.”). such of value include throughout. But that means hands NSI’s thing in one section one surely can't mean in section claim only Kremen’s sounds something else in other. and than 242(2) section rather of the Restatement (Second) 242(1). Compare Restatement of painfully obvious that ("One it's 242(2) effectively prevents Even when § who Torts See, e.g., Scheehle wrong question. kind intangible rights of the asked exercise of Court, Ariz. Supreme subject v. Justices customarily merged in a document of (2002). ("Where 242(1) P.3d 379 ...."), § liability with id. California, rejected though, has one-third cers in the courts of appeals cases we’ve certified to since the about 400 in the superior, district mu- rule went into Appendix effect. See tbl.l. nicipal courts combined. See Washington Courts, at http://www.courts.wa.gov/courts/ The Supreme California Court’s evident (last 15, 2002) (court visited Oct. appeals ambivalence pro- toward certification directories listing judges cess reflects the brutal and 8 super- realities commis- sioners); vising Superior judiciary populous most Court 2001 Annual state in Report tbl., the nation. Caseload Congestion in the at Supreme California (175 Court http://www.courts.wa.gov/caseload/ has been fix- ture ever since the state judges plus was admitted to FTEs); 49 commissioner Manheim, the Union. See Karl The Busi- Courts Limited Jurisdiction 2001 An- ness Supreme A Court: nual Caseload Report tbl., Comparative Study, Loy. L.A. L.Rev. (151 http://www.courts.wa.gov/caseload/ (1993). 1085, 1092 The court delivers judge plus FTEs). FTEs 31 commissioner opinions about 100 per written year— The Supreme Court is further twenty-five percent more than the United hamstrung by its mandatory death penalty Court, Supreme States jus- two fewer jurisdiction; it reviews an automatic direct Compare tices. Cal., Judicial Council of appeal from every where a case death 2002 Annual Report: Court Re- Statistics imposed. sentence is Statistics, See Court port tbl.6 [hereinafter Court Statistics] supra, at 4 tbl.l. This is a daunting pros- (103 opinions 2000-2001), for with Admin. pect, with California’s death row now num- Courts, Office of the U.S. 2001 Judicial bering 600 and still growing. See Gerald Business 73 [hereinafter tbl.A-1 Judicial Uelmen, Manners, F. Courtly Law., Cal. (83 2000-2001). opinions Business] July 74.15 As we know from Overall, disposes the court of some 9000 our experience, own capital cases—often per year, cases more than up sixty percent raising dozens of issues—are far more bur- years from ten ago, again once more densome than most. supreme court’s than the corresponding figure for the Unit- penalty death docket has at times strained ed States Court. Compare ability its to act as the “architect of Cali- Statistics, (9047 supra, at 4 tbl.l fornia law.” Uelmen, case F. Gerald dispositions compared to Lucas A Card, Court: First Report Year 1991-1992), 5466 for with Judicial Busi- Law., 1988, 30, 31; Cal. June at see also ness, (7762 supra, at tbl.A-1 disposi- Stephen Barnett, Justice, R. 2000-2001). tions for California (1990) (book 247, review). Cal. L.Rev. justices The seven of the California Su- Even if Supreme the California Court preme Court atop sit a judiciary ap- turned down our request, certification proximately 100 justices the courts of would still have taken aup disproportion- appeal judicial and 2000 officers in the ate amount of the court’s time and atten- superior Statistics, courts. Court supra, tion. (96.8 requests are given Our doubtless far at justice 18 tbl.l full time equiva- lents); closer (1998.0 scrutiny than the pe- id. run-of-the-mill at 39 tbl.l judge, com- FTEs). tition an ordinary litigant. missioner and By referee The su- compar- ison, Washington, preme populous the next court has turned significant most down a circuit, state our has a cases, nine-member number of our but certified supreme court only thirty judicial task, offi- cannot pleasant have been an or easy 15. The pen- reason that the parallel shortage court's death appointed counsel. alty Uelmen, manageable, Manners, docket apparently, Courtly all supra, at 74. months).17 1983) (six case One if at all to seven review surely grant and it would than two and a half for more forcing gone the was avoid should possible. We Prop. Prudential & Cas. Vu v. years. choice See between make the awkward court to (9th Cir.1999), Co., certi- Ins. 172 F.3d really that question to answer agreeing 1142, answered, 26 Cal.4th telling us its attention doesn’t deserve fied (2001), instances, 33 P.3d 487 Cal.Rptr.2d all 113 lunch. some we’re out to (9th answer, 291 F.3d that agree will minds reasonable conformed Cir.2002). here, taken less than 500 None has But is needed. court’s intervention deny a Appendix tbl.l. Even to days. See suggested has certifica- party or amicus no close request average takes on certification tion, panel our own is divided. and even months. See id. Given for im- to three poor have a candidate surely We Su- unique pressures facing Supreme Court’s the California posing on Court, easy preme these statistics goodwill.16 Delays are an unavoidable understand. also California docket The crowded cross-jurisdictional consequence of this a less efficient that certification is means they longer are far when procedure, but law. ascertaining state mechanism for already court is overburdened the state Su- we send to the California The cases with its own work. delays the same preme are beset Court foot litigants, burdens who rest of its caseload. The Certification plague lawyers reargue while their time from certification the bill average length of par- controversy in a different forum. The year over a order to decision well tbl.l; in the R. ties will now file briefs Stephen Appendix half. See cf. Law., Court, Docket, why it Barnett, explaining should Cal. Un-Rocket accept the certification re- on dock- or should not May (average time 29.5(e)(1). penalty quest. of 543 Cal. Rules for all non-death cases et Next, reply to each other’s briefs. triple they will days). approximately This is 29.5(e)(4). accepts the compre- Id. If the court average computed by one national file more briefs request, parties will study from the 1980s. See Carroll hensive Questions case on the mer- Serón, replies, arguing Law: Certifying State 29.5(h)(1). su- Judges 39 tbl.7 Id. Once the state Experience Federal its. us, (Fed. Ctr., the case back to Paper preme court sends FJC Staff Judicial tion, ours, presiding judge is bur- like where the majority declines to consider the 29.5(d). This impose supreme court dissent. Cal. Rules of Court den we on the state our certification led to the odd situation where I find when we force it to rule on has my requests, opining myself dissenting that "it is not our role to that bears from order priori- pass judgment signature. on the Court's v. Clark advance Crocker Nat’l Bank Cf. By logic, we Order at 1038. 700 n. 3 Equip. Corp., ties.” Credit F.2d C.J.) ("As every diversity (8th Cir.1984) certify case on our (Lay, would author of this ”). every Claims Act docket—and Federal Tort opinion, The drafters of Cali- I dissent.... supreme too—so that the state court obviously case rule did not fornia’s certification first crack at the state law issues could have anticipate presiding judge would dis- that the Surely, exercising judgment presented. sent, some they contemplated cases which means productive the court’s about the use of state panel only be certified when all mem- would resources, those of not to mention time agree. bers responsibility in parties, part of our deciding certify. largest whether to the next two 17. Turnaround times for moreover, rule, Washington requires in our circuit are shorter. that states California's typically to us in about nine signed by presid- returns cases certification order be months; usually year. takes about ing judge, making allowance a situa- Arizona no for parties will no argue doubt want to some This case happens to be in federal court more over because interpret parties how should its are from different states, but response. there nothing are the things These sorts of inevitable about party alignment. If that the issue is lawyers litigants make rich but under- as far-reaching as majority believes, it standably frustrated. prospect par- The will up come in state court soon enough. ticularly troublesome in this case—Kre- is that far- But I really doubt the case spent past men has already years four reaching. facts date back to the Wild in litigation trying get compensation days West of domain name registration, profits he lost because of Cohen’s theft when NSI had no written contracts with and NSI’s alleged bungling. registrants. changed NSI policy that long case, This is a cpmplex way but not in a ago. Domain name contracts are relevant justifies that certification. Whether they provide because for significant limits registry NSI’s .com is a document which liability they because may affect intangible property rights ais scope property right conferred. hard question, technical legal not a hard Future cases involving conversion of do- one. It’s a matter coming up with the main names will raise different questions. right analogy, and- has more to do This decision will relevant, no doubt be with understanding how the Internet it won’t dispositive. be works than with state law. The always Court is relevant facts are not genuinely disputed, free to overrule decision we render on but it reading takes a close to reconcile the subject. It may even benefit characterizations, competing and a famil- insights offer, we are able to just iarity with the underlying technology prior benefits from consideration state doesn’t hurt. certifying We’re this case to court judges. sense, In this just we are Supreme Court, the California not to the like another state court appeal. We do ghost Postel;18 of Jonathan I as far as California no by asking favors its supreme know, the unique expertise former has no court problems to solve our while we stand in the field of Internet mutely by. architecture. Gore,

18. Nor to A1 matter.

Appendix to the Certified

Table 2. Cases America,

United States Plaintiff-Appellant, Danielson, Dennis William Defendant-Appellee. Nos. 01-30176. of Appeals, United States Court Ninth Circuit. July 2002. Argued and Submitted Filed March May Amended America, STATES of UNITED Plaintiff-Appellee, v. DANIELSON,

William Dennis

Defendant-Appellant.

Case Details

Case Name: Kremen v. Cohen

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 22, 2003

Citation: 325 F.3d 1035

Docket Number: 19-35460

Court Abbreviation: 9th Cir.