Judith M. Stinson (Arizona State University (ASU) – College of Law) has posted Why Dicta Becomes Holding and Why it Matters (Brooklyn Law Review, Vol. 76, 2010) on SSRN. Here is the abstract:
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The distinction between holding and dicta is significant. Yet holdings are sometimes treated as dicta, and more significantly, dictum is regularly elevated to holding. Although the confusion between holding and dicta has garnered substantial discussion, little attention has been paid to why this confusion exists. This Article explores the reasons underlying the conflation of holding and dicta. It identifies several causes, including the cyclical nature of our judicial system, creating a ripple effect; the tendency of courts to emulate the Supreme Court; and our overemphasis on words, phrases, and quotations. The Article argues that by identifying these causes, we can begin to consider solutions that will minimize the elevation of dicta into holding.