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Way back in 2008 when I was a 3L in Michael Krauss’s jurisprudence class, I wrote a paper titled “Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction between Holding and Dictum.” The article, which I basically wrote in a week (shhhh–it was a busy semester!), tried to categorize the various ways in which judges employ the holding/dictum distinction to either follow, or evade precedent. Here was the 2008-Josh 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.

I had been meaning to revisit this paper for years, but have not gotten around to it.

Recently, David Klein and Neal Devins, have undertaken a worthy study into the elusive question about the difference between holding and dicta. The article is titled, “Dicta, Schmicta: Theory Versus Practice in Lower Court Decision Making.” Here is the 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 distinc- tion, 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.

I reviewed an earlier draft of this article, and I was intrigued. I am also glad the author’s tied the article into the importance of CJ Roberts’s opinion. That may be the most important dictum since Justice Powell’s opinion in Bakke!

In an attempt to justify his approach to policing New York City, Mayor Bloomberg took occasion to defend his full-throated approach to making us safe–“stop and frisk” and policing guns (inside and outside of New York, that is). Bloomberg opposes a law that would create an Independent Inspector General to oversee the behavior of the police department.

Mayor Michael Bloomberg unleashed a 45 minute tirade in defense of the police tactic, accusing those who support legislation for an Independent Inspector General of playing politics, and panning the media for turning a blind eye to murders in minority communities.

“Make no mistake, this is a dangerous piece of legislation and anyone who supports it is courting disaster,” Bloomberg said, addressing a crowd of dozens of uniformed police officers on the second floor of police headquarters.

“If you end street stops looking for guns, there will be more guns on the streets, and more people will be killed. It’s that simple.”

Constitution Schmonstitution (2nd and 4th amendment).

This comment in particular really pissed the civil rights community off:

In Washington, some elected officials don’t have the courage to stand up against special interest groups on the right and pass common-sense gun laws. And in New York City, some don’t have the courage to stand up to special interests on the left and support common-sense policing tactics like stop-and-frisk. We don’t need extremists on the left or the right running our police department, whether its the NRA or the NYCLU.

I often beat up on Bloomberg for his views on the Second Amendment and other rights, but the ACLU has rightfully taken him to task for his views on stop-and-frisk and the Fourth Amendment. These are two sides of the same statist coin. He is entirely consistent with his views on freedom. He has no concern for any forms of individual liberty–both liberal and conservative–that gets in the way of his efforts at structuring society according to his vision–whether that is keeping people safe from crime, cigarettes, or trans fats. Nothing should stop his lofty aspiration.

I am grateful that he will only in power for a short time longer, though he may be worse out of office with more time on his hands.

As expected, Think Progress objects to comparing the NRA and ACLU.

By a vote of 8-7, the Fifth Circuit denied en banc review in NRA v. ATF, leaving in place the panel opinion holding that Congress could bar those between the ages of 18 and 20 from owning a firearms. Judge Jones has a dissental, joined by 6 other members of the Fifth Circuit, in which she notes the unprecedented reach of the court’s opinion.

Here is the introduction to her dissental:

Never in the modern era has the Supreme Court held that a fundamental constitutional right could be abridged for a law-abiding adult class of citizens. Three major points ofthe panel’s opinion, in my view, are incorrect. First, the panel’s treatment of pertinent history does not do justice to Heller’s tailored approach toward historical sources. A methodology that more closely followed Heller would readily lead to the conclusion that 18- to 20-year old individuals share in the core right to keep and bear arms under the Second Amendment. Second, because they are partakers of this core right, the level of scrutiny required to assess the federal purchase/sales restrictions must be higher than that applied by the panel. Finally, even under intermediate scrutiny, the purchase restrictions are unconstitutional. I will address each of these concerns.

Jones takes exception to the majority’s originalist inquiry, and in what may be the biggest insults, compares it to Breyer!

The panel’s resort to generalized history is not only uninformative of the issue before this court, but it would render Heller valueless against most class-based legislative assaults on the right to keep and bear arms. The panel has employed Justice Breyer’s scattershot approach to history, while Heller rejected that in favor of a targeted study.

She repeats this theme in her conclusion, noting that First Amendment rights cannot be denied to adults under the age of 21:

Congress has seriously interfered with this age group’s constitutional rights because of a class-based determination that applies to, at best, a tiny percentage of the lawbreakers among the class. Of course, the lawbreakers obtain handguns, butthe law-abiding young adults are prevented from doing so, which adds an unusual and perverse twist to the constitutional analysis. I stress again the panel’s incredibly broad language approving these restrictions. The class is “irresponsible”; the Second Amendment protects “law-abiding responsible adults”; the Second Amendment permits “categorical regulation of gun possession by classes of persons” (citing Booker, 644 F.3d at 23) irrespective oftheir being within the core zone of rights-holders; and finally, “Congress could have sought to prohibit all persons under 21 from possessing handguns—or all guns, for that matter.” If any of these phrases were used in connection with a First Amendment free speech claim, they would be odious. Free speech rights are not subject to tests of “responsible adults,” speakers are not age-restricted, and class-based abridgement of speech is unthinkable today. Even if it is granted that safety concerns exist along with the ownership of firearms, they exist also with regard to incendiary speech. Some reasonable regulations are surely permissible,34 but the panel’s approval of banning young adults from the commercial and federally regulated market for “the quintessential self-defense weapon” is class-based invidious discrimination against a group of largely law-abiding citizens.

One of these recent Second Amendment cases will certainly wind its way up to the Court next term. Enough with health care and voting rights already. Let’s get back to guns!

Unrelated, but does anyone else really dislike the font used by the 5th Circuit? It is almost as bad as the 1st Circuit, which uses Courier New, or the 2nd Circuit, which has line-numbering. Ugh.

Hail to the Chief, President Sally Jewell.

The ABA Journal Magazine has a lengthy piece exploring the intersection of Big Data and the Law.

The day is here: Big data, loosely defined as the computer analysis of torrents of information to find hidden gems of insight, is slowly transforming the way law is practiced in the U.S.

Law firms are using big data to identify which cases will be easy slam dunks and those that are air balls. They’re relying on the technology to get a read on what other law firms are charging, so they can adjust their rates accordingly. And big data is also popping up in law firm human resources departments, where tech-savvy department heads are crunching data on potential new hires in the hopes of coming up with recruits who are truly a good fit.

“I think analytics is the wave of the future,” says Mark A. Lemley, a Stanford Law School professor. “Lawyers and companies make decisions today based on ‘anecdata’. If the lawyer remembers winning a case on a particular issue in front of a particular judge, they instinctively assume they know how that judge thinks about that issue.

“But that’s not necessarily so. Data allows companies and firms to understand the real opportunities and risks they face so they can make intelligent business decisions.”

Still, while there’s a lot of feel-good buzz about big data’s promise for law firms, those most familiar with the technology know it’s a double-edged sword. The same big-data computers doing all that mining on behalf of law firms are also being tasked by corporations to quickly size up the legal services market so they can play hardball with law firms seeking legal business.

Granted, computers have been transforming the law for decades now. But the sheer firepower of the technology these days—coupled with the unprecedented access to seemingly endless amounts of raw data on virtually every aspect of everyday life—is re-engineering that transformation on a much more fundamental level.

The article discusses a number of key leaders in the field, including Lex Machina, TyMetrix, Sky Analytics, and others.

You know this topic, which I have been talking about years, has gone mainstream when the ABA Journal dedicates an entire article to it. Hang on. It’s going to be a wild ride.