Dicta, Schmicta: Theory Versus Practice in Lower Court Decision Making

34 Pages Posted: 19 Apr 2013

See all articles by David Klein

David Klein

Eastern Michigan University

Neal Devins

William & Mary Law School

Date Written: April 19, 2013


The distinction between dictum and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dictum. Specifically, federal courts of appeals meaningfully invoke the distinction in about 1 in 4000 cases; federal district courts in about 1 in 2000 cases; and state courts in about 1 in 4000 cases. In this Essay, we report these findings, describe our coding system, and offer a preliminary assessment of the implications of our study. Most notably, our findings raise questions about the vitality of traditional common law judging. Rather than play a significant role in the development of legal principles by treating extraneous statements in higher court rulings as nonbinding dicta, lower courts cede much of their common law power to higher courts. Higher courts can issue sweeping rulings that address questions not immediately before them, knowing that those statements will not be treated as dicta. In highlighting this dynamic between lower and higher courts, our study also casts light on the ongoing debate over judicial minimalism. The ability of courts to pursue the minimalist project of issuing narrow, fact-specific rulings is undercut by a regime in which lower courts look to higher courts for the enunciation of legal principles. Finally, our study is highly salient to the practice of law. Lawyers, although frequently referencing the holding-dictum distinction in legal briefs, have little reason to think that a lower court will ever invoke the distinction to rule against higher court dicta.

Keywords: judicial decision making, precedent, dicta, legal theory, empirical legal studies, lower courts, common law

Suggested Citation

Klein, David and Devins, Neal, Dicta, Schmicta: Theory Versus Practice in Lower Court Decision Making (April 19, 2013). William & Mary Law Review, Vol. 54, No. 6, 2013, Available at SSRN: https://ssrn.com/abstract=2253969

David Klein (Contact Author)

Eastern Michigan University ( email )

Eastern Michigan University
Ypsilanti, MI 48197
United States

Neal Devins

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3845 (Phone)
757-221-3261 (Fax)

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