[HPFGU-OTChatter] Re: That case and that book

[Lee Kaiwen]

CJ:

> Hmm? Do you mean you're of the opinion that the "fictional facts"
> distinction is actually a BINDING precedent? I can't see where it's
> been used as precedent at all, let alone considered as binding.

Alla:

> I do not believe that you can say that any PART of the case is
> separate precedent, the WHOLE case is a precedent. Does it make
> sense? 

But this was my intent -- though I admit I didn't make it clear -- with 
my earlier reference to Posner's criticism of Castle Rock. That 
criticism came in the Beanie Baby case.

"The holding seems to rest in part, and very dubiously we must say, on 
the court's judgment that the book was frivolous."

It was in the very same case that I found my one and only explicit 
reference to the Castle Rock "fictional facts" distinction:

"The court said that "each 'fact' tested by The SAT is in reality 
fictitious expression created by Seinfeld's authors. ...  A similar 
judgment might be possible here."

This strongly suggests to me that, for Posner at least, court decisions 
are not monolithic beasties, and judges do (or at least this judge does) 
feel free to slice and dice their way through them. Posner, at the 
least, felt free to critize the main holding of Castle Rock while 
accepting the "fictional facts" distinction and even considering (though 
ultimately rejecting) applying it in the Beanie Baby case.

CJ:

> you may refer to me either as CJ or Kaiwen. Lee is my Chinese surname 
 > ... And don't anyone even THINK about apologizing.

Alla:

> Eh, sorry? :)

For what? Making the obvious assumption? Not a problem :-)

CJ