Sunday, February 06, 2011

Dictum vs. Holding

Back when I started practice, I attended a seminar at which a judge described a common problem with briefs submitted by lawyers who came of age in the era of Lexis and WestLaw: They would punch keywords into the search box, hit enter, find language in cases that supported their arguments, then quite that language without bothering to determine if they were citing the holding of the case - the court's binding decision - or dictum, statements not directly bearing on the issue before the court and thus not binding.

So I find it interesting that a law professor is excited about a column by a reporter (who studied law at Yale) that references and quotes as its sole legal authority a quote taken from a legal opinion in which the judge, as dictum, quoted dictum. For goodness sake.

Please, all you law profs, stop bringing back this sort of memory of law school. Some things, I would prefer to forget.


  1. Heh. This brings back all sorts of memories of my internship after my first year of law school. We offered legal assistance to people in jail and part of the job was reading the letters that they would send us, asking for help. (They were all innocent, you see.) Every now and again you'd get a letter from a jailhouse lawyer would who wander onto some case or another and randomly quote lines that he thought supported his case. Truly awesome.

  2. Did you ever get one of the "Michigan Militia" types? Some of their theories about their legal rights were... peculiar. Not scary, but definitely in the category of "How did you come up with that?"

    One, for example, insisted that all he had to do was object to the trial court's hearing a case and he would automatically be entitled to trial by tribunal. (The full explanation of this 'right', the details of which now elude me, took him several minutes to describe.)

  3. Even to this day, I get briefs from defense counsel that make it clear they read the headnote, or read somebody else's boiler, or read a practice guide that hadn't quite caught up with the case law.

    And really, Aaron: it's Volokh. You want accuracy?

  4. I swear - I only read it for the Oren Kerr. I don't even notice the pictures.