November 9, 2007

Followup on § 2257

I’ve received a number of emails asking for basic information about the ramifications of the Sixth Circuit’s decision in Connection Distributing case, discussed here.  I can’t say what the decision means for any particular person, but here are some helpful facts:

  • Who is this “Sixth Circuit”? The decision was issued by a three-judge panel of the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit encompasses Kentucky, Michigan, Ohio, and Tennessee.
  • What happens now? The government can ask for rehearing by the full Sixth Circuit court sitting together (or “en banc”). If rehearing is denied, the government can ask the Supreme Court to review the case. In very few cases is en banc rehearing or Supreme Court review granted — but in very few cases does a Court of Appeals declare a federal statute unconstitutional. If the Supreme Court decides to review the case, its decision would have nationwide effect.
  • What does it mean if rehearing en banc and Supreme Court review are denied? It will mean that federal district (trial-level) courts in Kentucky, Michigan, Ohio, and Tennessee, as well as later three-judge panels of the Sixth Circuit Court of Appeals, will have to abide by the ruling.
  • What does it mean for jurisdictions outside Kentucky, Michigan, Ohio, or Tennessee? As a formal matter, not much. But federal courts look to other federal courts for guidance in deciding their cases, and no Circuit (other than, arguably, the D.C. Circuit) has affirmatively found Section 2257 to be constitutional. Other courts may look to Connection Distributing as a persuasive authority in deciding future cases about the constitutionality of Section 2257.

My practice doesn’t include any 2257 work, and I can’t help you with your recordkeeping compliance. But I hope that the above helps clarify what the Sixth Circuit’s decision means (and doesn’t mean).

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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