Dicta and the Rule of Law

Abstract

The rule of law stands as a fundamental property, or at least ideal, of American law. Hard to define and even harder to attain, the standard has captivated a generation of scholars. Dicta, on the other hand, has received only intermittent scholarly attention. While dicta is an indispensable ingredient of practically all judicial opinions, it is often derided by advocates and dismissed by jurists — and for good reason; it represents no binding authority.

Despite this essential quality, those same lawyers and judges also treat dicta as authority. This inconsistent usage of dicta raises serious rule-of-law concerns. Dictum must be defined both consistently and according to a working standard if the case law is to yield the predictability demanded by the rule of law. Further, the conflation of dictum and holding strips the common law method of protections long thought to be necessary if judges are to make retroactive law and apply it to the cases before them.

Courts should seek, where possible, to take incremental steps toward reaching the rule of law ideal. Accordingly, judges would do well to clarify the definition of dictum and distinguish it carefully from holding.

Keywords: rule of law, jurisprudence, dicta

JEL Classification: K10, K19, K30