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October 07, 2007


Robin: Well, I could have told you that...

In all seriousness, I was struggling in the law library for several hours yesterday with just that issue. I had to stop and re-do sections because I would realize that a particular case didn't fit and whatever I was writing was just me wanting it to fit. This was slightly better than getting horribly confused because a judge had cited a case that said "In this situation, with facts X, law Y does not apply. But we agree with a sister circuit that law Y would apply with facts Z."

This judge citing the case had a case at bar that presented facts Z. So, one would think that law Y would apply, right? A case of first impression and he's citing a case that held "If presented with X, do not apply Y. If presented with Z, apply Y." No. This judge skipped the "If presented with Z, apply Y" bit and claimed that "We have facts Z, and a previous case held that law Y doesn't apply under facts X. I hold that law Y will not apply here."

Aside from that, it's very interesting, after reading large volumes of cases on a particular subject matter, to see how the judge's personal feelings towards a plaintiff or defendant, or the back stories of the plaintiffs and defendants creep into the opinions. I'll post the cites to the cases I referenced above if you're interested or lost in the tangles of a rather convoluted example.

Context independent similarity rarely exists, for good theoretical reasons found in choice theory.

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