Dicta, Schmicta: Theory versus Practice in Lower Court Decision Making

By Klein, David; Devins, Neal | William and Mary Law Review, May 2013 | Go to article overview

Dicta, Schmicta: Theory versus Practice in Lower Court Decision Making


Klein, David, Devins, Neal, William and Mary Law Review


ABSTRACT

The distinction between dictum and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dictum. Specifically, federal courts of appeals meaningfully invoke the distinction in about 1 in 4000 cases; federal district courts in about 1 in 2000 cases; and state courts in about 1 in 4000 cases. In this Essay, we report these findings, describe our coding system, and offer a preliminary assessment of the implications of our study. Most notably, our findings raise questions about the vitality of traditional common law judging. Rather than play a significant role in the development of legal principles by treating extraneous statements in higher court rulings as nonbinding dicta, lower courts cede much of their common law power to higher courts. Higher courts can issue sweeping rulings that address questions not immediately before them, knowing that those statements will not be treated as dicta. In highlighting this dynamic between lower and higher courts, our study also casts light on the ongoing debate over judicial minimalism. The ability of courts to pursue the minimalist project of issuing narrow, fact-specific rulings is undercut by a regime in which lower courts look to higher courts for the enunciation of legal principles. Finally, our study is highly salient to the practice of law. Lawyers, although frequently referencing the holding-dictum distinction in legal briefs, have little reason to think that a lower court will ever invoke the distinction to rule against higher court dicta.

TABLE OF CONTENTS

INTRODUCTION
I. THE HOLDING-DICTUM DISTINCTION IN THEORY
II. THE DISTINCTION IN PRACTICE
   A. The Cases
   B. Findings
III. IMPLICATIONS
   A. Lower Court-Higher Court Dynamics
   B. Dicta-in-Theory Versus Dicta-in-Practice
CONCLUSION
APPENDIX

INTRODUCTION

One of the spirited debates set off by the Supreme Court's health care decision (1) has nothing to do with the quality of the Justices' legal reasoning or what the policy consequences of the decision should be. Rather, it revolves around the question of whether Chief Justices Roberts's opinion should be considered "holding" or "dictum." Because the Affordable Care Act was ultimately upheld under the taxing power, (2) academics, practitioners, and the Justices themselves squared off on what precedential weight, if any, should be given to the Chief Justice's determination that Congress could not compel participation in the health insurance market under its commerce power. (3) For Randy Barnett, who championed the Commerce Clause argument embraced by Roberts, the opinion was holding because Roberts claimed that he would not have even considered the taxing power argument if the statute were a permissible use of Congress's commerce power. (4) For Jack Balkin, who vigorously defended the statute, the Roberts opinion was arguably dictum; (5) for Justice Ginsburg it was not "outcome determinative" and therefore unnecessary. (6)

Why this debate? Because dictum and holding are usually thought to be entitled to very different weight in the American legal system, as in other common law systems: "A court's holding defines the scope of its power; holdings must be obeyed.... Dicta is the stuff that doesn't have to be obeyed." (7) If Roberts's commerce power determination is a holding, then lower courts are bound to follow it in future cases; if it is dictum, their only obligation is to give his reasoning respectful consideration.

No doubt, the distinction between holding and dictum is central to the American legal system--in theory. (8) But theory is one thing, practice another. (9) The point of this Essay is to ask how much is really at stake in this debate over whether the Roberts opinion is dictum and, more generally, whether a court opinion can be labeled as holding or dictum.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Dicta, Schmicta: Theory versus Practice in Lower Court Decision Making
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.