Exploring Dicta

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comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).”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 The portion of this definition that I would like to focus on is “unnecessary to the decision in the case and therefore not precedential.”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that this opinion is particularly thorough and well-developed – a far cry from something that should be disregarded as not precedential.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of multiple sufficient reasons for an outcome renders neither reason necessary (and unnecessary statements are not precedential).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.