Red Flags in Westlaw’s KeyCite: Jefferson Parish and Independent Ink.
I couldn’t help noticing that Westlaw’s KeyCite gives Jefferson Parish a “red flag,” because of Independent Ink. What’s interesting about this is that the only part of Jefferson Parish that got “overruled” is the market power presumption for patented tying goods. Since Jefferson Parish did not involve any patents — Dr. Hyde couldn’t get hospital privileges at East Jefferson, because the hospital had an exclusive supply agreement with Dr. Jekyll Roux — the court’s pronouncements about patents and market power are clearly dicta. (The court expressly says so in Independent Ink.) To be fair, the criterion employed by Westlaw for assigning a red flag is “no longer good for at least one point of law,” but technically dicta are not points of law, they are points about law. As a practical matter, Westlaw’s broad approach makes good sense, because the line between holding and dictum is usually blurry. But once in a while there is a clear cut case, and the “red flag” just doesn’t seem quite right.
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