The Holding-Dictum Spectrum

47 Pages Posted: 16 Aug 2017 Last revised: 25 Oct 2018

Date Written: December 1, 2017

Abstract

The distinction between holding and dictum is often treated under a binary paradigm; either a proposition is binding holding, or unconstraining dictum. But the binary paradigm is too simplistic to adequately model our complex system of precedent. This article suggests an alternative spectrum paradigm where the constraining force of a precedent proposition is inversely correlated with its breadth. This article explains the spectrum approach, compares it with prevailing approaches, and evaluates some cases in light of the spectrum model. The spectrum framework has the potential to facilitate judicial candor and make the concepts of holding and dicta more consistently meaningful.

Keywords: dicta, precedent, stare decisis, holding, jurisprudence

Suggested Citation

Michaels, Andrew C., The Holding-Dictum Spectrum (December 1, 2017). Andrew C. Michaels, The Holding-Dictum Spectrum, 70 Arkansas Law Review 661 (2017), Available at SSRN: https://ssrn.com/abstract=2863989 or http://dx.doi.org/10.2139/ssrn.2863989

Andrew C. Michaels (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
188
Abstract Views
1,341
rank
197,056
PlumX Metrics