US v. Zhou, No. 10-50231 (5-10-12)(M. Smith with Kleinfeld and Sammartino, D.J.) An infinite number of law clerks, conducting an infinite number of Westlaw searches, eventually would connect the Second Amendment, Leo Tolstoy and James Taylor in a paragraph search, but the odds are that the wait would be long. Better would be to look up this opinion, where the amendment, author, and singer are used to signify the importance of "and."
And what is the Second Amendment, "War and Peace", and "Fire and Rain"
doing? Is this an opinion about firearms and intellectual property? Nope.
The 9th deals with a HIPPA violation, and the knowledge required. 42 USC 1320d concerns violating access to a patient's records. The misdemeanor offense requires that the information be obtained "knowingly and in violation of this part...." The defendant a health research assistant, who was let go, subsequently accessed patient records. He was charged. He moved to dismiss the charge because it did not allege that the defendant knew that the statute prohibited him from obtaining health information.
The 9th held that the statute did not require specific intent; rather, the "knowingly" requirement referred to the fact of obtaining information, and the "and" then meant that such obtaining violated HIPPA. The 9th goes through the statute, the language, and the precedent concerning "knowingly"
followed by an "and". The examples used on p. 5045 show the value of "and" (i.e. "keep bear arms," "War Peace" and "Fire Rain.") Yes, a strange
trio--query: did each member of the panel pick one, or did the clerks weigh in? In any event, why a Russian author? And why does the opinion say that Taylor singing "Fire and Rain" without the "and" ," would have "confusingly crooned" the song? Crooned? Really? Still, he's got a friend in the 9th, which shows how how sweet it is to be cited by them.