Whether researching case law or reading an assigned case, understanding and identifying dicta in a judicial opinion is a must. You probably know that you can’t rely on dicta as binding precedent in a future case, but what is it and how can you be sure to recognize it? If the concept of dicta seems complicated, it is. Experienced attorneys and legal scholars alike struggle to pin down the slippery concept. Here are ten frequently asked questions and answers about dicta to help you to successfully deal with dicta:
1. Is it dicta or dictum?
Dictum is the singular noun; dicta is the plural noun.
2. What is Obiter Dictum?
Most commonly, when people talk about a portion of an opinion being “dicta,” they mean obiter dicta. “Obiter dictum” is Latin for “something said in passing.” Black’s Law Dictionary 1177 (9th ed. 2009). It is defined 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comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). Id.”
3. What is the Opposite of Dicta?
Legal propositions in a judicial opinion are not dicta if they are necessary to the court’s logic in order to reach a holding in the case. If you would like a Latin term of art, propositions that go to the case’s ratio decidendi are not dicta. The term ratio decidendi is Latin for “the reason for deciding,” meaning the principle or rule of law on which a court’s decision is founded. Black’s Law 1376. Case law or binding precedent is made when the court’s holding resolves a contested question of law. So, propositions that aren’t necessary for the case’s ratio decidendi do not get the benefits of stare decisis and are dicta.
4. What does Stare Decisis have to do with it?
To understand dicta, you have to understand stare decisis. Stare decisis is “the doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.” Black’s Law 1537. Within a jurisdiction, if a judicial holding is made in one case, future courts (generally) have to apply that judicial holding if the same legal issue arises again. But the only propositions that get the stare decisis-treatment are those that were necessary to the holding of the court in that previous case.
5. How can you Identify Dicta?
Although it sounds simple, it can be surprisingly difficult to distinguish dicta from precedential propositions in a case. The easiest way to determine that a proposition is dicta is by process of elimination. Usually, determining the holding of the court in an opinion is not too difficult. The court will often introduce its holding with words and phrases like “We hold…”, “So, …”, and “In conclusion, …”. Work back from the holding or holdings of the court. Every proposition that is necessary for the court to reach a holding in the opinion is not dicta. If the proposition you are concerned about is not a necessary link in the court’s reasoning, then it was just “something said in passing” by the court, but it does not hold precedential value.
6. Can you Cite Dicta as Authority?
You can cite dicta—see Bluebook rule 10.6.1. However, because a proposition that is dicta is not precedential or binding, it only serves as persuasive or non-binding authority.
7. If you Cite it, What Kind of Support does it Offer?
It is not strong authority, but if you have nothing else, it can shed some light on the state of the law in the jurisdiction. Particularly if the dicta comes from a court in your jurisdiction that could render a holding on the question they opined on previously. So, you can cite to a proposition of law that is dicta, but you must include the parenthetical “(dicta)” per Bluebook rule 10.6.1 to acknowledge the weight of the authority you are citing. Remember that citations explain your support to the reader, so be careful not to appear as if you are trying to pass off dicta as binding authority.
8. When would you Ever want to Cite Dicta?
You would only want to cite dicta when no other case law supports your position, but there isn’t a specific case-law, precedential rule that contradicts your proposition. If you have no other authority, citing dicta essentially admits to your reader that you have nothing firm to go on, but that some smart person with a judicial robe also thought the same thing at some point. You are just trying to use the persuasive authority it offers to lend some support to your argument.
9. What is the Difference Between Persuasive and Binding Authority?
Persuasive authority can be argued if there is no binding authority or if you are arguing that a court should change previously binding authority. If authority is only persuasive, the court is not bound to follow it—it is just there to attempt to persuade. If authority is binding, the court generally has no choice but to follow the binding authority or precedent.
10. What is Judicial Dictum?
Even experts begin to diverge when discussion moves beyond the basics of dicta. Nonetheless, one other type of dictum could be worth explanation here—judicial dictum. Judicial dictum is still a proposition not necessary to reach the holding in an opinion, but a proposition that (arguably) holds a higher degree of authority. Judicial dictum is defined as “an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision.” Black’s Law 519. Often this kind of dicta is discussed as significant when it comes out of a jurisdiction’s high court, e.g., a state supreme court. Because such courts are the final word on the law in their jurisdiction, if they state a proposition, for example, resolving a question of law not addressed by the high court before, even their dicta would seem to carry a good deal of authority.
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