Josh Blackman (George Mason University – School of Law) has posted Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction between Holding and Dictum on SSRN. Here is the abstract:
From
the birth of our Republic, starting with Chief Justice Marshall in
Cohens v. Virginia, judges and scholars alike have grappled with the
distinction between holding and dictum. However, neither the judiciary
nor the academy has been able to come up with a consistent and workable
definition of these two concepts. This article attempts to shine some
light on this perplexing issue.This article proceeds as
follows. In Part I, I will discuss some of the simpler, yet
unsatisfying definitions of dictum, and introduce some of the easy
cases, where distinguishing dictum from holding is relatively
straightforward. Next, I will chronicle the Supreme Court’s erratic
approach to dealing with dictum, and show how this uncertainty has left
a gaping void in our jurisprudence. Next, I will discuss prior
scholarly attempts to define dictum, and show why their approaches are
inadequate, as they only focus on Supreme Court cases, and ignore how
the inferior courts treat the distinction.In Part II, I will
confront the task where others have not ventured, and systematically
survey and analyze over four hundred court cases that distinguish
between dictum and holding. After explaining my methodology and
framework, I will attempt to answer three critical questions. First,
what is dicta worth? Second, whose dicta must/should/can courts follow?
Third, how do courts define dicta? These three questions reveal clues
to understanding how courts have treated dictum, and what the
distinction means in practice.In Part III, I will analyze
the results from Part II. Based on the arbitrary nature with which
courts define dictum, and the varying weight courts assign to dictum,
even from superior courts, I conclude that the holding/dictum
distinction is a standardless standard. Unlike generally accepted
standards of review, labeling an opinion as holding or dictum is an
entirely subjective process, which I argue enables judges to easily
evade precedent without needing to justify the departure; or in the
alternative create precedent where none existed before. Next, I analyze
precedent, stare decisis, and dictum through the lenses two
jurisprudential schools, legal formalism and realism. I conclude with a
legal realist argument, that the distinction between dicta and holding
is inextricably linked with a judge’s views on precedent.