Defining Dicta


The doctrine of stare decisis applies only to holdings of past cases, but scholars and courts have paid far more attention to stare decisis doctrine than to the distinction between holding and dicta, particularly in recent years. The lack of attention that the distinction receives may reflect a sense among legal analysts that they know dicta when they see it, but the problem is considerably more analytically complex than it may at first appear. In this Article, Professors Abramowicz and Stearns identify a number of structural problems that may affect whether statements in judicial opinions should be classified as holding or dicta. Drawing on a theoretical model that illustrates the role of the holding-dicta distinction in disciplining the application of stare decisis, they then develop four normative criteria and apply those criteria to each of the structural problems. After describing the weaknesses in various previous attempts to identify the holding-dicta line, the authors offer their own definitions. 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.



Date of this Version

October 2004