New Article: Why Dicta Becomes Holding and Why it Matters

August 20th, 2010

Take a look at this article from Professor Judith Sitnson, titled Why Dicta Becomes Holding and Why it Matters (H/T Legal Theory Blog):

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.

This article does not focus on the distinction between holding and dicta:

For purposes of this article, the precise definition of holding (and therefore dicta) is immaterial.


This Article aims to identify the causes that lead to the repeated conflation of dicta with holdings. Based on these underlying causes, it advances some tentative proposals to reduce the confusion between holding and dicta and its detrimental impacts on the judicial system.

Back in law school I wrote a lengthy piece for a Jurisprudence class discussing just this question. I titled it at the time,  Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction Between Holding & Dictum. 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.

Ultimately, I had to take a very legal realist opinion and conclude that holding and dictum distinction was a farce that Judges and attorneys used to deftly evade precedent when convenient.

This was an absolutely fascinating topic, and I hope one day to submit this as a real law review article.