We spend a lot of time teaching the students what constitutes a holding, and how to distinguish a holding from dicta. But as a practical matter, it seems that the distinction has largely lost its importance. Lower courts almost always treat dicta in Supreme Court opinions as equivalent to holding. Even the Supreme Court frequently treats its dicta as equivalent to holding.
Yesterday, in Gomez-Perez v. Potter, the Court went one step further and classified some dicta as holding. The case is about whether the ADEA, specifically 29 U.S.C. § 633a(a), authorizes a retaliation claim for a federal employee who claims to have suffered adverse consequences for filing a complaint about age discrimination. Because the suit is against the government, one subsidiary issue was whether sovereign immunity barred the suit. To waive sovereign immunity, a statute must clearly state that it does so. The Court held that it didn’t need to determine whether § 633 contained such a clear statement, because a different provision gave the necessary waiver of sovereign immunity. But then the Court went on to say: “But in any event, even if §633a(a) must [contain a clear statement], we hold. . . that §633a(a) prohibits retaliation with the requisite clarity.” Maybe I am being too picky, but this seems to me a misuse of “holding.” Introducing the sentence with “even if” suggests that the premise of the sentence is counterfactual, so the conclusion is not necessary to the reasoning of the decision.
Classifying the conclusion as holding may reflect that the Court wants lower courts to view its dicta as binding. That makes sense, I suppose, because the Court may want to answer as many questions as possible in a single opinion because of the small number of cases it takes. Of course, it might not be so sinister. Maybe we can chalk the use of “hold” up to careless writing. After all, the same sentence is already shoddy by using both “in any event” and “even if.” (The phrase “in any event” includes the concepts of “even if” and “even if not.”) But even if the use of “hold” is due to carelessness, it still has the effect of blurring the distinction between holding and dicta.
Posted by Andy Hessick on May 28, 2008 at 10:07 AM
Comments
The distinction is still real, but it is often academic. Aside from many good observations made above, I believe this is because lower courts are generally interested in doing what the appellate court wants – and dicta is a good indication of that. The distinction is important when a lawyer needs to let the court know that it is not bound by a case.
Posted by: arison | May 29, 2008 1:20:45 AM
We spend a lot of time teaching the students what constitutes a holding, and how to distinguish a holding from dicta.
Hmmm, I don’t spend any time at all doing this. Am I atypical? I spend a lot of time with my students talking about the reasons supporting a court’s decision, and whether they are persuasive or not, but I don’t spend any time labelling parts of the decision as “dicta” or “holdings.”
Posted by: Bruce Boyden | May 29, 2008 12:47:04 AM
The holding/dicta distinction is an artifact of the Langdell approach to teaching law. It is an oversimplification of the process of legal reasoning. What sentence highly trained lawyers will point to as the “holding” often depends upon what question those lawyers are asking of the case law. What is dicta in one context would be viewed as holding in another.
As the gradual erosion of this concept reveals, there is nothing different in kind between legal reasoning and other forms of reasoning. There is only the difference between lawyers and other types of professionals. As the profession itself becomes more diverse in population, so too will its perceptions of correct reasoning.
Posted by: Michael F. Martin | May 28, 2008 8:04:56 PM
As a current law clerk, I understand the concept of “holding” as encompassing situtions in which a court both “makes a conclusion (or conclusions) of law” (as Orin suggests) and “states a rule(or rules) of law” to be applied in future cases. The former refers to applying existing law to a set of facts, i.e., whether under Supreme Court case X did Y win or lose and why. But depending on the context, a holding could refer to either concept. (Although Orin might argue that a “conclusion of law” also encompasses the idea of “stating a rule of law” – if so I think he’s correct that the holding/dicta distinction might be a little less relevant.)
Posted by: alex | May 28, 2008 3:24:17 PM
I’m not sure it matters if the distinction is elided.
I am sure, however, that all should hew to the rule of not holding your dicta in public.
Hyuk.
Posted by: Learning Hand | May 28, 2008 1:59:08 PM
holding/dicta matters for clearly established law under aedpa
Posted by: anon | May 28, 2008 1:19:58 PM
When I was a law clerk, I understood the word “hold” to mean “make a conclusion of law.” I didn’t think of it as having any more technical meaning, and I suppose I still don’t. As for the holding/dicta distinction, it still matters, but my sense is that courts today are much less prone to offer up lots of dicta than they used to. If a court isn’t filing up opinions with all sorts of asides not raised by the case, understanding the difference between a holding and mere dicta is significantly less important.
Posted by: Orin Kerr | May 28, 2008 12:00:27 PM
Can a Court not offer alternative holdings?
I haven’t read the case, but based on this limited exposure, I’d say that this case could be cited as binding (as opposed to persuasive) authority that language similar to language is 633a(a) constitutes a clear waiver.
If you ask me, the first nail in the coffin of the dicta/holding distinction was the advent of on-line caselaw research. Back when we did research by hand, we basically clinged to a few doctrinal cases that were old, and had been reaffirmed over time. Our memory was short, but as long as we limited the number of important cases, we knew where to start.
Now, attorneys are criticized by opposing counsel, and occasionally by courts, for citing old cases. With electronic research, everyone wants the newest case, and we cling to isolated dicta in the new cases that supports our position; rather than reading historic development of the law, and interpreting what the law is based on what each case holds…
The very first time I saw, in an opposing counsel’s response brief, “Plaintiff’s cited caselaw is old” I was deeply saddened. It has only gotten worse…
Posted by: PA | May 28, 2008 11:00:24 AM