Dicta, schmicta: theory versus practice in lower court decision making.

• Jurisdiction: United States
• Author: Klein, David
• Date: 01 May 2013

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 distinction, 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.

TABLE OF CONTENTS INTRODUCTION I. THE HOLDING-DICTUM DISTINCTION IN THEORY II. THE DISTINCTION IN PRACTICE A. The Cases B. Findings III. IMPLICATIONS A. Lower Court-Higher Court Dynamics B. Dicta-in-Theory Versus Dicta-in-Practice CONCLUSION APPENDIX INTRODUCTION

One of the spirited debates set off by the Supreme Court's health care decision (1) has nothing to do with the quality of the Justices' legal reasoning or what the policy consequences of the decision should be. Rather, it revolves around the question of whether Chief Justices Roberts's opinion should be considered "holding" or "dictum." Because the Affordable Care Act was ultimately upheld under the taxing power, (2) academics, practitioners, and the Justices themselves squared off on what precedential weight, if any, should be given to the Chief Justice's determination that Congress could not compel participation in the health insurance market under its commerce power. (3) For Randy Barnett, who championed the Commerce Clause argument embraced by Roberts, the opinion was holding because Roberts claimed that he would not have even considered the taxing power argument if the statute were a permissible use of Congress's commerce power. (4) For Jack Balkin, who vigorously defended the statute, the Roberts opinion was arguably dictum; (5) for Justice Ginsburg it was not "outcome determinative" and therefore unnecessary. (6)

Why this debate? Because dictum and holding are usually thought to be entitled to very different weight in the American legal system, as in other common law systems: "A court's holding defines the scope of its power; holdings must be obeyed.... Dicta is the stuff that doesn't have to be obeyed." (7) If Roberts's commerce power determination is a holding, then lower courts are bound to follow it in future cases; if it is dictum, their only obligation is to give his reasoning respectful consideration.

No doubt, the distinction between holding and dictum is central to the American legal system--in theory. (8) But theory is one thing, practice another. (9) The point of this Essay is to ask how much is really at stake in this debate over whether the Roberts opinion is dictum and, more generally, whether a court opinion can be labeled as holding or dictum. Our concern is not the normative question of how a court should act but the empirical question of how much the distinction matters for the impact of higher courts' language on lower courts' decisions.

This Essay speaks to the continuing vitality of the holding-dictum distinction through the first systematic study of how lower courts treat higher court dicta. (10) As we will show, the gap between dicta-in-theory and dicta-in-practice is strikingly large. Lower courts often mention the distinction between holding and dictum but hardly ever invoke it in consequential ways. In calendar years 2008-2010, the focus of this study, nearly 14,000 out of about 700,000 Westlaw-reported cases contained allusions to the distinction, but lower courts refused to follow a directive from a higher court because they regarded it as dictum in only about 220 of these cases. (11) That is, lower courts made meaningful use of the holding-dictum distinction in fewer than 1 in every 3000 cases.

In our view, the disjunction between dicta-in-practice and dicta-in-theory in lower court decision making has important descriptive and normative implications. The power of lower courts to interpret higher court rulings and, in so doing, demarcate the line that separates dictum from holding is a key constraint on the hierarchical relationship between higher and lower courts. Lower courts' willingness or reluctance to assert their own authority by challenging dicta fundamentally affects the ways in which higher and lower courts speak to each other and shape the law. (12)

Even more importantly, in the traditional image of common law judging, broad doctrine emerges over time as principles uniting individual cases come into focus. (13) Under this view, lower courts play a critical role in the development of legal principles by exercising their own judgment as to the implications and applicability of past decisions. Treatments of dictum as holding disrupt this process by permitting more sudden and sweeping changes in doctrine.

Relatedly, the vitality of the holding-dictum distinction is highly relevant to the ongoing debate over judicial minimalism. Minimalists argue that narrow, fact-specific holdings are less prone to factual error and more likely to facilitate constructive conversations among courts, elected officials, and the American people. (14) Whether or not these claims are correct, lower court treatments of dictum as holding complicate the pursuit of the judicial minimalists' project. In particular, judicial minimalism looks to lower courts to examine the workability of higher court precedent in different factual contexts, including changes brought about by social and political developments. (15)

The Essay proceeds in three Parts. We begin by describing the centrality of the holding-dictum distinction to both the development of law and the broader academic debate about whether courts should issue minimalist decisions. In the second Part, we describe our sample of federal and state court decisions, explain and illustrate our coding criteria and decisions, and present our findings, casting doubt on the willingness of lower courts to participate in a dynamic interchange with higher courts in the development of legal principles. We conclude with a preliminary assessment of the ramifications of this study for the dynamic between higher and lower courts and the vitality of traditional common law judging.

1. THE HOLDING-DICTUM DISTINCTION IN THEORY

   The distinction between holding and dictum reflects fundamental norms of American law, from the common law precept that legal principles develop incrementally, with any one decision having only a limited impact, to Article III's requirement that judges decide concrete disputes and not issue advisory opinions. As Karl Llewellyn put it, a "court can decide nothing but the legal dispute before it.... Everything, but everything, said in an opinion is to be read and understood only in relation to the actual case before the court." (16)

   The importance of the distinction to legal theory is highlighted from the beginning of a lawyer's training. Law students are often taught that the American legal system sees dicta as neither binding nor normatively desirable and typically spend significant time and energy looking for the line separating the two. (17) In constitutional law, students learn that the very case that established judicial review, Marbury v. Madison, is filled with dicta. Specifically, because the Court discussed the merits of the Marbury dispute before concluding that the Court was without jurisdiction to rule in favor of the plaintiff, Marbury is often depicted as a prime example of judicial overreaching. (18) More tellingly, the case method that dominates legal instruction teaches students that the legal craft is about the careful reading of cases and, with that, the ability to separate holding from dictum. For law students, to treat dictum as holding is to misunderstand the case before them.

   The importance of the distinction is also reflected in concerted efforts by scholars to delineate it (19) and by the fact that lawyers and judges speak of it so often. As we will explain shortly, we found, over a three-year period, several thousand cases per year in which judges used the term "dicta" or "dictum" in an opinion. During the same three-year period, there were 8406 references to dicta in federal court of appeals briefs and 12,946 references in state court of appeals and state supreme court briefs. (20)

   The reason the dicta concept matters so much to theory and, in our view, deserves far more empirical attention, is that it gets to the

   core of how the law is made in a system of precedent. When few efforts are made to distinguish dictum from holding, the dynamics of judicial decision making will resemble what Michael Sean Quinn has called an "Imperial Theory" of precedent. Under this approach, "when a principle of law has been deliberated upon (i.e., thought about)...