Thursday, July 28, 2011 v. EDriver, Inc. (9th Cir. - July 28, 2011)

This case is interesting enough on its own, and involves whether the district court was allowed to require a private, for-profit entity (, Inc.) that had registered to display an initial "splash screen" that informed consumers that it was unaffilliated with the actual DMV.  (The answer, by the way, is "Yes, in order to combat false advertising, but with conditions.)  [You can look at the splash screen the district court imposed either in the Appendix to the opinion or here.  I will say that the "Disclaimer" seems deliberately hidden, at the top of the page (where it's easily ignored given the placement of the click-through.  I might well not have even seen it if I wasn't actively looking for it.)]

The opinion also gives the reader a little bit of insight into Judge Kozinski.  Sure, the usual stuff is there:  the contractions, the breezy style, etc.  But there's also a tiny additional thing as well.  At the bottom of page 9744, at the end of a string cite, Judge Kozinski quotes from an essay written in the NYU Law Review in 1983.  The author of this essay?  Judge Kozinski.

But no big deal, right?  The essay's about the Lanham Act.  This case is about, in part, the Lanham Act.  Some would find it tacky to cite yourself, but academics do it all the time.  Plus, this isn't the only time courts have cited Judge Kozinski's 1983 essay.  It's the fifth.

Now, mind you, 60% of those citations are contained in opinions by . . . . Judge Kozinski.  But hey, that still leaves 40% of the time Kozinski's been cited by someone other than himself.

You also see the development of Judge Kozinski's citation form.  Back in 2002, when he first cites this article by himself, he just cites the article, not the author.  Leaves the author's name out.  Maybe for humility reasons.  Then, the second time, he cites himself and puts the author's (his) name in, but it's only in a footnote.  This third time, he makes the text.  Moving up in the world.

Following this progression, next time, rather than being located at the end of a string cite, Judge Kozinski should cite the article as a standalone.  And his clerks' goal by the time Judge Kozinski takes senior status should be to write an opinion in which quotes from this essay are both the opening and concluding sentences of the opinion.

Then he'd really have arrived.