Defining dicta.

• Author: Abramowicz, Michael

INTRODUCTION I. THE PROBLEMS OF DICTA A. Bakke 1. Justice Powell's opinion 2. Analysis of Justice Powell's opinion a. A presumptive definition b. Possible reasons for deviating from the presumptive definition 3. Summary and comparison with previous analyses B. Summary of Identified Problems II. POSITIVE MODELS AND NORMATIVE FACTORS A. Modeling Stare Decisis and the Holding-Dicta Distinction 1. Modeling horizontal stare decisis 2. Modeling vertical stare decisis 3. Modeling the breadth of holdings B. The Judicial Four Cs 1. Constraint 2. Consideration 3. Clarity 4. Candor C. Assessing Propositions and Problem Categories 1. Necessary propositions 2. Sufficient propositions and related problems 3. Nonsupportive propositions 4. Structured analysis 5. Hypotheticals 6. Biconditional statements 7. Breadth 8.Summary III. DEFINING HOLDING AND DICTA A. The Inadequacy of Existing Definitions 1. Reconciliability 2. Factual materiality 3. Necessity 4. Preclusivity B. Necessary Conditions for a Holding 1. Actually decided 2. Based on facts of the case 3. Leading to the judgment IV. APPLICATIONS A. Bakke B. Roe C. Penn Central D. Blakely E. Grutter and Gratz CONCLUSION INTRODUCTION

Even the longest, most complicated, and divisive appellate court decisions do not come with code books. (1) Appellate court decisions increasingly involve complex constitutional, statutory, or administrative law issues, and include lengthy discussions of case facts, (2) findings below, hypothetical disputes of varying significance to the legal issues presented, and discursive and sometimes tendentious treatment of precedent. Judges sometimes identify their holdings with precision. In so doing, they imply that all other aspects of the discussion--however persuasive and seemingly relevant they might be to the immediate case disposition--are instead dicta. (3) More frequently, however, judges offer looser characterizations, and sometimes none at all, leaving the task of decoding dicta and holding entirely to the reader.

A judge's failure to delineate the scope of the holding within an opinion might not be a disservice to the judicial process. Even punctilious judges arguably should not be allowed the final word on the extent of their authority to resolve legal issues. Further, even a judge's claim to have produced a holding on a particular issue should perhaps be open to challenge when the issue seems distant from the central concerns of the case. The failure of a judicial opinion to supply reliable guidance distinguishing its holdings from its dicta, moreover, poses little difficulty to the extent that legal actors agree upon the definitions of holding and dicta. With shared understandings, future courts could be expected to follow a case's holdings and consider its dicta only to the extent that such discussions prove helpful.

Although judges and scholars share intuitions that frequently lead them to the same conclusions in particular case settings, our analysis will reveal the absence of a shared conceptual foundation for analyzing even modestly complex cases. (4) This deficiency might reflect the tendency in recent decades of scholars interested in precedent to focus significant attention on the nature of stare decisis. A considerable literature studies the emergence, scope, and limits of stare decisis, (5) the doctrine through which courts use opinions not merely to resolve cases, but also to make law in the form of at least presumptively binding precedents. (6) Stare decisis plays a central role in our common law system, whether in horizontal form (for example, within the Supreme Court and across federal circuit court panels), or in vertical form (for example, from the Supreme Court to lower federal courts and from circuit courts to district courts). (7) This scholarly attention is thus warranted.

As a practical matter, however, judicial analysis of precedent rarely requires that courts test the contours of stare decisis doctrine directly. When stare decisis applies, a court rarely needs to consider the relatively narrow exceptions to stare decisis. Vertical stare decisis is generally considered absolute, (8) and in the federal appellate system, en banc rehearing is required before a circuit court can overturn the precedent of a panel or of an earlier en banc court. Even the Supreme Court overturns its precedents only rarely, and it debates the scope of stare decisis even more rarely. (9) In contrast, evaluating a claimed precedent to determine whether an identified proposition is holding or dicta occupies a great deal of judicial attention. Indeed, before a court can decide whether to apply the doctrine of stare decisis to a given case, it must first determine just what that case purports to establish. Because holdings in prior cases are at least presumptively binding--while dicta is not--this task requires an understanding of these terms. (10)

Despite the growing need for a clear distinction to accommodate increasingly complex opinions, in recent decades the literature on the distinction between holding and dicta has been tiny in comparison to the broad literature on stare decisis. (11) An earlier generation of scholars, in contrast, devoted considerable attention to the holding-dicta distinction. (12) While no satisfactory definition has yet to emerge, legal scholars have largely turned their attention elsewhere. The questions of whether to apply precedent, and how to construe a particular precedent in a given case, are intertwined. But they are not the same inquiry. Even an opinion without precedential value contains a holding. If anything, the more relevant inquiry in most cases is the one that has been given scant attention among the current generation of legal scholars. Courts themselves have not filled the theoretical void, and so the American judicial system lacks clearly defined rules on an important aspect of the process through which judges resolve cases and make law. Through a loose set of practices that vary considerably across jurisdictions, and, perhaps more problematically, across courts and cases, judges, entirely on their own, define such terms as needed to assist in the task of resolving particular cases.

Despite the absence of any single governing source or universal agreement on how to define dicta, the legal system does not threaten to devolve into chaos or general incoherence. Rather, disagreements as to whether a claimed proposition is part of a court's holding, or is instead merely dicta, surface in discrete disagreements over particular cases without unraveling the fabric of the law. There is no denying, however, the importance of understanding--both as a matter of theory and at the level of practice--how to approach such a central task as sorting holding and dicta. This query goes to the heart of the business of judging, which itself goes to the essence of the Anglo-American system of interpreting and making positive law. Even if there is broad agreement on a range of issues related to decoding dicta and holdings, in the cases in which these issues matter most, conceptual uncertainties that result from a lack of rigor in categorizing holding and dicta give rise to the greatest practical difficulties.

One difficulty in developing theoretically satisfying and operational understandings of the terms holding and dicta is that the most commonplace-and frequently cited--definitions of these terms are problematic in profound ways. Appreciating both the questions of why these definitions emerged and what is problematic about them is essential to our project. Consider, as perhaps the most prominent illustration, the definition of obiter dictum in Black's Law Dictionary: "[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential." (13) We will argue that the definition is indefensible, (14) and at least inconsistent with the general understanding that alternative holdings in a case all count as holdings. (15) In fact, we will demonstrate that as a core element in the definition of holding, necessity is itself not necessary (16) and might not even be sufficient to ensure holding status to a given proposition. (17) The intuition that underlies the definition, however, is easy to appreciate because the definition works well for simple cases. In a case of just one issue and just one logical argument that can take a court from the facts to the judgment, discussions that do not lie along that path are unnecessary to the decision and are therefore dicta.

In this Article, our aim is not to produce a holding-dicta code book but instead a straightforward definition of the terms "holding" and "dicta." Like any legal test, our definition will leave some gray areas, but we are confident that the definition is both theoretically sound and functional. Our definition reflects the issues for which we are able to achieve relatively clear resolutions. It also provides a framework for confronting those issues for which competing policy considerations render the task of providing determinate outcomes particularly difficult. We thus offer our recommendations for resolving even the closest conceptual issues, and also a framework with which scholars can approach such questions even if they do not embrace our specific conclusions on specific problems. By clearly identifying the issues that the literature has not directly addressed and the legal values at stake, our analysis will at least allow the courts to reach their own resolutions of these issues with greater conceptual clarity.

In the course of our analysis, we will categorize the various types of judicial assertions that can credibly be classified either as holding or dicta using a coherent and comprehensive logical structure. For example, in addition to considering the problem of alternative holdings, we will ask whether a court is generally empowered to issue what we term biconditional...