Obiter dictum (usually used in the plural,obiter dicta) is aLatin phrase meaning "said in passing",[1] that is, any remark in alegal opinion that is "said in passing" by ajudge orarbitrator. It is a concept derived fromEnglish common law, whereby a judgment comprises only two elements:ratio decidendi andobiter dicta. For the purposes of judicialprecedent,ratio decidendi is binding, whereasobiter dicta are persuasive only.[2][3]
A judicial statement can beratio decidendi only if it refers to the crucial facts and law of the case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law issues, areobiter dicta.Obiter dicta (often simplydicta, orobiter) are remarks or observations made by ajudge that, although included in the body of the court's opinion, do not form a necessary part of the court's decision. In a court opinion,obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument".[1] Unlikeratio decidendi,obiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law. The so-calledWambaugh's Inversion Test provides that to determine whether a judicial statement isratio orobiter, you should invert the argument, that is to say, ask whether the decision would have been different, had the statement been omitted. If so, the statement is crucial and isratio; whereas if it is not crucial, it isobiter.
If a court rules that it lacksjurisdiction to hear a case (or dismisses the case on a technicality), but still goes on to offer opinions on the merits of the case, such opinions may constituteobiter dicta. Other instances ofobiter dicta may occur where a judge makes an aside to provide context for the opinion, or makes a thorough exploration of a relevant area of law. If a judge, by way of illumination, provides a hypothetical example, this would be obiter even if relevant because it would not be on the facts of the case, as in theCarlill case (below).
University of Florida scholars Teresa Reid-Rambo and Leanne Pflaum explain the process by whichobiter dicta may become binding. They write that:
In reaching decisions, courts sometimes quote passages ofobiter dicta found in the texts of the opinions from prior cases, with or without acknowledging the quoted passage's status asobiter dicta. A quoted passage ofobiter dicta may become part of the holding or ruling in a subsequent case, depending on what the latter court actually decided and how that court treated the principle embodied in the quoted passage.[4]
Under the doctrine ofstare decisis, statements constitutingobiter dicta are not binding, although in some jurisdictions, such asEngland and Wales, they can be strongly persuasive. For instance, in theHigh Trees case,[5]Mr Justice Denning was not content merely to grant the landlord's claim, but added that had the landlord sought to recover the back rent from the war years,equity would haveestopped him from doing so. Given that the landlord did not wish to recover any back rent, Denning's addition was clearlyobiter, yet this statement became the basis for the modern revival ofpromissory estoppel. Similarly, inHedley Byrne & Co Ltd v Heller & Partners Ltd,[6] theHouse of Lords held,obiter, that negligent misstatement could give rise to a claim forpure economic loss, even though, on the facts, a disclaimer was effective in quashing any claim. Also, inScruttons Ltd v Midland Silicones Ltd,[7] Lord Reid proposed that while doctrine ofprivity of contract prevented the stevedores in this instance from benefiting from protection of an exemption clause, in future such protection could be effective if four guidelines (which he went on to list) were all met. InCarlill v Carbolic Smoke Ball Company[8][9] (a case whether a woman who had used a smoke ball as prescribed could claim the advertised reward after catching influenza),Bowen LJ said:
If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course [not]!
United States Supreme Court'sobiter dicta can be influential.[10][11][3][12][13] One example in the Supreme Court's history is the 1886 caseSanta Clara County v. Southern Pacific Railroad Co.. A passing remark fromChief JusticeMorrison R. Waite, recorded by the court reporter before oral argument, now forms the basis for the doctrine thatjuristic persons are entitled to protection under theFourteenth Amendment. Whether or not Chief Justice Waite's remark constitutes binding precedent is arguable, but subsequent rulings treat it as such.
In other instances,obiter dicta can suggest an interpretation of law that has no bearing on the case at hand but might be useful in future cases.[2] The most notable instance of such an occurrence is the history of the famous Footnote 4 toUnited States v. Carolene Products Co. (1938), which, while rejecting use of theDue Process Clause to block most legislation, suggested that the clause might be applied to strike down legislation dealing with questions of "fundamental right". Thisobiter dictum is generally considered to have led to the doctrine ofstrict scrutiny (and subsequentlyintermediate scrutiny) in racial-, religious-, and sexual-discrimination cases, first articulated inKorematsu v. United States (1944). The judgment ofKorematsu v. United States was itself condemned by the same court inobiter dictum inTrump v. Hawaii (2018).
The arguments and reasoning of adissenting judgment (the term used in the United Kingdom[14] also constituteobiter dicta. These, however, might also be cited should a court determine that its previous decision was in error, as when the United States Supreme Court cited JusticeOliver Wendell Holmes Jr.'s dissent inHammer v. Dagenhart when it overturnedHammer inUnited States v. Darby Lumber Co.
InShaw v DPP [1962][15] a publisher of theLadies Directory (a guide to London prostitutes) was convicted of "conspiracy to corrupt public morals". He appealed on the grounds that no such offence existed. The House of Lords dismissed the appeal, in effect creating a new crime.Viscount Simonds said: "...there remains in the Courts of Law a residual power ... to conserve the moral welfare of the State, and ... guard it against attacks which may be the more insidious because they are novel and unprepared for." In a dissenting judgment,Lord Reid said: "Parliament is the proper place, ... to [create new criminal laws]. Where Parliamentfears to tread it is not for the courts to rush in." Subsequently, Lord Reid was the leading judge inKnuller v. DPP,[16] a case onobscene libel in which a publisher was charged with "conspiracy to corrupt public morals". In this case, Lord Reid said he still disagreed with the majority decision inShaw, but in the interests of certainty he would not overturnShaw.
Akin toobiter is the concept ofsemble (Norman French for "it seems"), indicating that the point is uncertain or represents only the judge's opinion. For example, inSimpkins v Pays (1955),[17][18] a grandmother, granddaughter and a lodger entered into weekly competitions in theSunday Empire News. Each week, all three women together made a forecast and each contributed to the cost of entry; but it was the grandmother's name that was on the coupon. The grandmother received £750 in prize money and refused to share it with the other two. The lodger successfully sued for one third of the prize money; but Sellers J addedsemble that the granddaughter should also get £250, even though she had not been a party to the action.
Simply labeling a statement in an opinion as a 'holding' does not necessarily make it so. Gratuitous statements in an opinion that do not implicate the adjudicative facts of the case's specific holding do not have the bite of precedent. They bind neither coordinate nor inferior courts in the judicial hierarchy. They are classicobiter dicta: 'statement[s] of law in the opinion which could not logically be a major premise of the selected facts of the decision.'
To be sure, Supreme Court dicta, even while nonbinding, are still highly persuasive.(plurality opinion)
Indeed, the formulation took flight from a case in which we mistakenly suggested that a claim-processing rule was 'mandatory and jurisdictional.'
We have previously recognized that 'dicta from the Supreme Court is not something to be lightly cast aside.'
Well-reasoned dicta is the law of the circuit.
The dictionary definition ofobiter dictum at Wiktionary