obiter dictum, a Latin expression meaning “that which is said casually”, a casual statement. In particular, it refers in law to a passage of a judicial notice that is not necessary for the resolution of the dispute before the court. Such statements do not have the power of a precedent, but can still be significant. Although useless, dicta are still studied and appreciated for their potential usefulness. Dictations are often found in later opinions and sometimes even serve as the basis for those opinions. An example of this is the case of United States v. Carolene Products, in which Harlan F. Stone J. proposed in the now famous footnote 4 to apply a legal standard stricter than the basic rational test in hypothetical and future situations. The wording of footnote 4 ultimately served as the basis for teaching the strict examination. Obiter dictum (usually used in the plural obiter dicta) is a Latin expression meaning “other things said [1], that is, a remark in a legal opinion that is “casually said” by a judge or arbitrator. It is a concept derived from English common law, where a judgment consists of only two elements: ratio decidendi and obiter dicta. For the purposes of the previous one, the ratio decidendi is binding, while obiter dicta is only convincing.
[2] [3] A court decision can only be ratio decidendi if it relates to the decisive facts and the law of the case. Statements that are not decisive or that relate to hypothetical facts or unrelated legal issues are obiter dicta. Obiter dicta (often simply dicta or obiter) are remarks or observations by a judge that, although included in the court`s opinion, are not a necessary part of the court`s decision. In a judicial opinion, obiter dicta contains, among other things, words “introduced by way of illustration, analogy or argument”. [1] Unlike the ratio decidendi, obiter dicta are not the subject of the court decision, even if they are correct declarations of law. The so-called Wambaugh reversal test states that to determine whether a testimony in court is ratio or obiter, one must reverse the argument, that is, ask whether the decision would have been different if the testimony had been omitted. If so, the statement is decisive and proportional; If, on the other hand, it is not decisive, it is. (2) Look for places where the court talks about the history of a legal term. This discussion can help put the law in context (and in fact, you may find it useful in your studies for exactly that reason!), but the history of a common law statute or rule is not necessary to decide the issues in a particular case. Statements contained in an opinion that go beyond what was necessary to decide this issue will be considered dicta and will not be considered a binding precedent in future cases. See State v.
Breathette, 202 N.C. App. 697 (2010) (definition of dictation), citing State v. Jackson, 353 N.C. 495 (2001) (“general expressions” that “go beyond the case … can be respected, but must not control the verdict in a subsequent action in which the real point is submitted for decision”). Specifically, remarks that are completely “incidental to the decision of the case” or “directed to issues on which no formal argument has been heard” are classified as obiter dicta (Latin for “by the way” or “casually said”), and such statements “are not considered a precedent and must be distinguished from the ratio decidendi, which forms the basis of the court`s decision”. Chandler, Enslen and Renstrom, “Obiter Dictum”, Con. Law Dsk., § 8:82 (2020). Buccieri, Buchwalter, Gore, and Griffith, “Judicial Dicta,” 21 C.J.S. Courts 226 (2020).
The term judicial saying rarely appears in Appeals in North Carolina, but our courts seem to repeat this principle in some decisions. See, for example, State v. Springle, __ N.C. App. __ (21. July 2020) (unpublished) (“Although the Supreme Court in grady did not consider the entire legal system to be unconstitutional, its strong diktat on the constitutionality of the legal system at first glance left no viable constitutional path for anyone, including repeat sex offenders who are not under supervision, to be subject to the SBM in accordance with our General Statutes, Sections 14-208.40 to -208.45”). The part of a judicial opinion that is drafted only by a judge and does not directly address the details of the pending case; Third party material that is merely informative or explanatory. A comment, suggestion or observation by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts, but can still be cited as a persuasive authority in future litigation. Also known as Dictum, Dicta and Judicial Dicta. A dissenting opinion is also generally regarded as an obiter dictum. In other cases, obiter dicta may propose an interpretation of the law that has no influence on the present case, but that could be useful in future cases. [2] The most notable case of such an event is the story of the famous footnote 4 of United States v.
Carolene Products Co. (1938), which, while refusing to use the due process clause to block most laws, suggested that the clause could be applied to remove laws dealing with “fundamental rights” issues. It is generally believed that this obiter dictum led to the doctrine of strict examination (and subsequent interim examination) in cases of racial, religious and gender discrimination, first set out in Korematsu v. the United States (1944). The Korematsu verdict v. The United States was itself convicted by the same court in obiter dictum in Trump v. Hawaii (2018). n. Latin for “remark”, a comment by a judge in a decision or decision that is not necessary to make the decision, but which may indicate a related principle of law, as the judge hears it. Although it can be cited in legal arguments, it does not have the full force of a precedent (previous judicial decisions or interpretations) because the commentary was not part of the legal basis of the judgment. The standard counter-argument is, “It`s just a saying (or dictation).” For most lawyers, it will literally be a once-in-a-lifetime experience when a court ignores an important statement from a higher court because it is a saying. The “judicial saying” is a statement that the court expressly uses to guide the parties in their future conduct.
As a general rule, such an expression of opinion on a point at issue in a case, raised by defence counsel and intentionally mentioned by the court, although not essential to the decision of the case, differs from a mere obiter dictum, and it becomes relevant if it is expressly declared by the court as a guideline for future conduct. Therefore, a legal saying should have decisive weight in a lower court. Conversely, a court is not required to follow the diktat in a previous case where the currently disputed issue has not been fully discussed. But when you look at the bigger picture, it doesn`t seem to be what usually happens in practice. Whether dictated or not, courts tend to decide based on these statements much more often than they deviate from them. See Klein and Devins, “Dicta, Schmicta: Theory vs. Practice in Lower Court Decision Making”, 54 Wm. & Mary L.
Rev. 2021 (2013). To compare theory and practice, the authors conducted an empirical study of thousands of state and federal cases adjudicated over a three-year period, looking for cases in which a lower court identified a superior court statement as a saying. The authors then evaluated a random sample of these cases to determine how often the lower courts followed the saying and how often they deviated from it. Their conclusions were instructive: the arguments and reasoning of a different judgment (as this term is used in the United Kingdom[14] and Australia[15]) or a dissenting opinion (the term used in the courts in the United States) also represent obiter dicta. However, these could also be cited if a court finds that its previous decision was erroneous, such as when the U.S. Supreme Court overturned The Dissent of Justice Oliver Wendell Holmes, Jr. in Hammer v.
Dagenhart when she overthrew Hammer in the US against Darby Lumber Co., American jurist John Chipman Gray said: “For an opinion to have the weight of a precedent. it must be an opinion the formation of which is necessary for the decision of a particular case; In other words, it should not be obiter dictum. Dictas often take the form of unnecessarily broad statements. For example, when a young man deliberately murdered his grandfather to prevent him from revoking a will, the court ruled that the beneficiary was not entitled to the inheritance that the will provided for him, and stated that the law would not allow him to “exploit his own injustice or claim his own injustice.” or to acquire property by his own crime. In a subsequent case involving a legatee who had negligently caused the death of the testator in a car accident, the same result would not necessarily follow.