Black’s Law Dictionary defines “obiter dictum” as
“A judicial comment made while delivering a judicial opinion, but one that is
unnecessary to the decision in the case and therefore not precedential
(although it may be considered persuasive).”
This phrase is commonly shortened to “dictum” or its plural, “dicta.” The portion of this definition that I would
like to focus on is “unnecessary to the decision in the case and
therefore not precedential.”
I won’t immediately conclude that Black’s Law
Dictionary is incorrect. Many courts
seem to use this definition or a variation of it when describing dicta, so
Black’s Law Dictionary correctly states the commonly accepted definition of the
term. However, while this definition is
popular, it is wrong, or in the very least, misleading.
Many decisions reach a result for multiple
sufficient reasons. It would seem very
odd to conclude that a decision has no precedential value simply because there
are two sufficient reasons to reach that decision. Quite the contrary: the explanation of multiple reasons
signals that this opinion is particularly thorough and well-developed – a far
cry from something that should be disregarded as not precedential. The definition of dicta, however, compels the
rejection of the full opinion, since the existence of multiple sufficient reasons for an
outcome renders neither reason necessary (and unnecessary statements are not
precedential).
Courts recognize that this would be crazy, and
have thankfully qualified the definition of dictum. The California Supreme Court, for instance,
noted that “where two independent reasons are given for a decision, neither one
is to be considered mere dictum, since there is no more reason for calling one
ground the real basis of the decision than the other.” (Southern California Ch. Assoc. Builders v.
California Apprenticeship Council, 841 P.2d 1011, 1015 (Cal. 1992)). Despite this fortunate qualification, the
overly simple definition that identifies “dictum” with “unnecessary” is still likely
to create confusion.
A better approach would be to define dicta as
those statements are comments that are “not necessary and not sufficient to
reach a result, or those statements that are affirmatively labeled as dicta (or peripheral) by the court
issuing the opinion.” This
approach would prevent multiple sufficient reasons from being labeled as
dicta. This approach would also grant
courts the ability make broad statements without the fear that these statements
will veer into the realm of dicta, so long as the courts qualify these
statements.
Admittedly, this is a rough and preliminary outline
of a definition of dicta, but I think it already has several advantages over
the popular approach that Black’s Law Dictionary espouses. There have been more thorough attempts to
define dicta, including this impressive 2005 article by Michael Abramowicz and
Maxwell Stearns that defines holdings as "propositions along the chosen decisional path or paths of reasoning that paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment." Non-holding propositions are dicta.
I don't immediately see any troubles with this alternative definition, but I do want to flag another article by David Klein and Neal Devins that should underlie any discussion of dicta. Even if a court recognizes a statement as dictum, that court may still give that statement full precedential value. This happens a great deal, argue Klein & Devins, which casts doubt on the overall implications of the dicta/holding distinction.
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