That case and that book

[dumbledore11214]

CJ:

<SNIP>
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.
<SNIP>


Alla:

Okay, I guess I was not clear after all. Sorry :)

Yes, of course judges are free to cite the case for any proposition 
they choose.

But what judge is doing here, he is DISTINGUISHING the case he is 
deciding from Castle Rock on the fact and thus refuses to follow 
their reasoning.

That is totally judge's prerrogative to say that he believes the case 
which is in front of him is DIFFERENT for whatever reasons and refuse 
to follow it, he just better be able to explain it well. It is also 
the prerrogative of judges of the court that decided Castle Rock to 
say one day - we have SAME case on the facts and law here as Castle 
rock, but we reverse ourselves, we think Castle rock is no good no 
more. BOOM, done.

Now, you were saying that fictional facts part was not cited anywhere 
except in this case and even here court refused to follow it. That 
may very well be true, I don;t know. As I said I skimmed 10 or twelve 
case out of 750 and did not have time or desire to do more.


What I am saying that as long as Castle Rock is good law it is simply 
IRRELEVANT if part of the reasoning was not cited in any cases. Since 
the WHOLE CASE  is good law, any judge is free to cite it for ANY  
proposition he so chooses and if judge Patterson wishes to adopt this 
reasoning he can do so.

By the same tocken the fact that judge refused to follow PART of the 
case means nothing for new decisions. He distinguished the case, but 
whole case is still good law.


Alla