Dicta and Article III

75 Pages Posted: 6 Feb 2013

Date Written: January 1, 1994

Abstract

At the heart of the federal judicial power lies a tension between the concrete and the abstract. On the one hand, Article III's case-or-controversy requirement prohibits federal courts from issuing advisory opinions. Federal courts may not decide "abstract, hypothetical or contingent questions"; they must instead limit their exercise of judicial authority to concrete disputes that arise out of the adversary process. On the other hand, the precept that like cases should be treated alike - rooted both in the rule of law and in Article III's invocation of the "judicial Power" rests upon the assumption that judicial decisions are necessarily abstract or general. To say that the reasoning in a prior case supports or even requires the same or similar result in a later case is to recognize that the first case does not merely resolve a dispute between the parties but announces a general principle applicable in future cases as well. Thus, Article III contains both a concreteness norm and an abstraction norm.

Keywords: federal court, Article III, abstract, hypothetical, contingent, jurisprudence

Suggested Citation

Dorf, Michael C., Dicta and Article III (January 1, 1994). University of Pennsylvania Law Review, Vol. 142, p. 1997, 1994; Cornell Legal Studies Research Paper No. 13-20. Available at SSRN: https://ssrn.com/abstract=2212299

Michael C. Dorf (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333

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