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.
GW Paper Series
GWU Law School Public Law Research Paper No. 2017-1; GWU Legal Studies Research Paper No. 2017-1
Michaels, Andrew C., The Holding-Dicta Spectrum (December 1, 2016). GWU Law School Public Law Research Paper No. 2017-1; GWU Legal Studies Research Paper No. 2017-1. Available at SSRN: https://ssrn.com/abstract=2863989