The Holding-Dictum Spectrum
47 Pages Posted: 16 Aug 2017 Last revised: 25 Oct 2018
Date Written: December 1, 2017
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
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