Over on The Volokh Conspiracy, Orin Kerr notes:
Today Assistant U.S. Attorney Mark Krause, the prosecutor in the Lori Drew case, filed a notice of appeal of the District Court’s decision granting the motion to dismiss. It’s important to note that this does not mean the case will actually be appealed. The Solicitor General must approve the decision to appeal for it to go forward, and this may simply be a protective notice in light of the fact that the government has 30 days to file a notice of appeal under the federal rules.
It is also worth noting that just ten days ago, the Ninth Circuit rejected the line of cases that the government relied on in the Lori Drew prosecution in a civil case, LVRC Holdings v. Brekka. This is particularly interesting because in Drew, Judge Wu accepted the government’s broad reading of the statute as a matter of statutory interpretation; he only dismissed the case because of the constitutional vagueness problem. Under Brekka, however, the Ninth Circuit seems to have rejected the Government’s very broad reading of the statute as a matter of statutory interpretation.