Appellate Law

Questioning the Balance Between Dicta and Holding

, The Legal Intelligencer


Jay Evans
Jay Evans

When I was getting ready for law school, my dean sent out a suggested reading list. "To Kill a Mockingbird" still sits on my shelf when it's not being loaned out to new lawyers (note: read it; don't just see the movie). "One L" is on the shelf, too.

For those of you who did not receive the same suggestion to buy a copy before you started law school, "One L" tells the semifictional story of the author's first year at Harvard Law School. In it, Scott Turow relates a scenario many of us are familiar with: the Socratic method of discussing cases in class. When it was my turn, Socratic case discussion was also the first time I was faced with a common question: "I know that is what the court said, but is that what the court held?"

Silly me, I thought I could read judicial opinions like I read everything else—as a whole, not parsing out whether the court meant what it said in one paragraph rather than the next. The idea of dicta, to me, was always hard to accept.

The Line Between 
Holding and Dicta

Unsurprisingly, the conceptual line between dicta and holding in judicial decisions was, and is, a matter of debate. Why else would it take up so much space in law school? Originating from the Latin for "something said in passing," obiter dictum is defined as a "judicial comment made during the course of delivering a judicial decision, but one that is unnecessary to the decision in the case and therefore not precedential," per Black's Law Dictionary.

Simply put, unless it relates to the merits of the question presented, it's not binding, as in Commonwealth v. Tilghman, 543 Pa. 578, 585-586, 673 A.2d 898, 902 (1996), in which the court held that in every case, what is actually decided is the law applicable to the particular facts; all other conclusions are but obiter dictum.

The Howard Decision

This, of course, makes last fall's per curiam Pennsylvania Supreme Court decision in Howard v. A.W. Chesterton, 78 A.3d 605 (Pa. 2013), all the more curious.

In Howard, a toxic tort case, the Supreme Court began by informing the reader that the case was "being resolved upon mutual consent among the parties, who agree that the order of the Superior Court should be reversed." Thus, under Pennsylvania law, the rest of the per curiam opinion is arguably, and perhaps by definition, dicta, as in Tulewicz v. Southeastern Pennsylvania Transportation Authority, 529 Pa. 588, 592-594, 606 A.2d 427, 429 (1992), in which the court held that a court's comments on an issue not raised or argued by either party before the court are dicta.

Nevertheless, the Supreme Court did not stop at the resolution of the case by the parties, but instead accepted the invitation of the defendants "to reaffirm several governing principles deriving from prior cases." The specifics of the Howard decision are of great interest to toxic tort lawyers, but to summarize for this article, the Supreme Court proceeded to reiterate several general principles it had stated in prior decisions regarding the quantum of evidence necessary to state a claim in an asbestos action.

Although Howard was identified as being per curiam, Justice Debra M. Todd nevertheless filed a concurring statement that reads more like a dissent. In particular, she took the rest of the court to task for issuing an opinion without anything at stake for the litigants.

"The court's well-meaning attempt to 'accommodate' appellants' request to reaffirm several precepts is to little avail in the end," Todd said. "As these statements are dicta, courts, including this one, are under no obligation to follow such dictates." She was citing U.S. Bancorp Mortgage v. Bonner Mall Partnership, 513 U.S. 18, 24 (1994), in which the court said "this seems to us a prime occasion for invoking our customary refusal to be bound by dicta, and our customary skepticism toward per curiam dispositions that lack the reasoned consideration of a full opinion."

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