The Residue of Design

“Luck is the residue of design” said Branch Rickey.  Last Friday I wrote a chapter on the Computer Fraud and Abuse Act for my Internet law casebook.  The chapter’s first two cases deal respectively with successful CFAA prosecutions for the Morris Worm and hacking.   Following these I want to present the problematic recent CFAA prosecution of Lori Drew for creating a false MySpace profile in the infamous Megan Meier suicide.  A federal jury  convicted Drew last November of various misdemeanors, but in early July presiding judge  George H. Wu provisionally acquitted Drew of all charges, subject to his issuance of an opinion explaining his ruling.  Great stuff–a high-profile, emotionally-charged case with a dramatic legal turn that fits my chapter’s theme.  There was one problem:  as of Friday morning Judge Wu had not issued his opinion and the chapter is incomplete without it.  I created a Google Alert for <Lori Drew acquittal decision Wu>, then spent the weekend preoccupied with how to fill the remainder of the chapter while waiting for the opinion.

Reading email this morning before researching the CFAA to find another case I saw this Google Alert in my inbox “Lori Drew Opinion Handed Down.”  The alert contained a link to Orin Kerr’s 8/29 Volokh Conspiracy post, which in turn linked to the opinion.  BINGO!  The optimal solution to my problem, thanks to my creation of an Alert and Kerr’s personal interest in the case.  Kerr, who worked pro bono on Drew’s defense, noted in Saturday’s post the strange press silence about the judge’s opinion. As of today, Monday, I’ve not seen it mentioned elsewhere.

The real estate developer for whom I worked often said “I’d rather be lucky than smart.”  Sometimes the tiniest bit of smarts can generate its own luck.

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