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Forthcoming in 56 Stanford Law Review __ (2005)

Abstract

In recent decades, legal scholars have devoted substantially greater attention to studying the origin and nature of stare decisis than to defining the distinction between holding and dicta. This appears counter-intuitive when one considers, first, that stare decisis applies only to holdings of announced precedents, and second, that beyond problematic and rudimentary intuitions, the legal system has failed to develop meaningful definitions of these terms. While lawyers, legal scholars, and jurists likely assume that they can identify dicta when they see it, a careful analysis that categorizes the range of judicial assertions in need of proper characterization reveals that defining holding and dicta is more complex than the general trend of recent scholarship would suggest.

In this Article, Professors Abramowicz and Stearns provide a comprehensive yet accessible framework for identifying the categories of assertions requiring classification as holding or dicta; a normative and positive framework for setting up a holding-dicta classification scheme; and, most importantly, a definition that resolves most if not all of the difficulties revealed in the course of their analysis. The authors develop a theoretical model that explores the nature and limits of stare decisis as a mechanism for constraining judicial behavior, and they explain the importance of clarity in the understanding of holding and dicta within a precedent-driven system of law. After critiquing the most influential definitions of holding and dicta, the authors offer and defend their own: A holding consists of those propositions along the chosen decisional path or paths of reasoning that are actually decided, are based upon the facts of the case, and lead to the judgment. A proposition in a case that is not holding is dicta.

Disciplines

Judges | Law | Legal Writing and Research

Date of this Version

December 2004

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