Legal Theory Lexicon 005: Holdings

Introduction

 It used to be the case that an endless investigation of the difference between holding and dictum was a central preoccupation of the first year of law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all the way to your second year, with only a vague sense of what the difference between "holding" and "dictum" really is. This is not an accident. The old-fashioned, but still powerful, distinction between the holding of a case, which has precedential effect, and mere obiter dicta, which have only persuasive effect, does not easily fit in the post-realist landscape of contemporary American legal thought. This installment of the Legal Theory Lexicon provides a brief tour of the concept of a holding, with a special emphasis on the ideas that are relevant to a first-year law student with a bent for legal theory. So, here we go!

 Holding, Dicta, and Stare Decisis

 It may be obvious, but let's say it anyway. The notion of a "holding" is only relevant because of the doctrine of stare decisis or binding precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents!  Given that court decisions set precedents, the question naturally arises: what is the precedential effect of a decision?  The traditional answer to that question is that subsequent courts are bound to follow the holding of a decision, but they are not bound by mere dicta--statements that are "unnecessary to the decision."  This is as good a place as any to mention that "dictum" is the singular (one unnecessary statement) whereas the word "dicta" is the plural of dictum, meaning two or more such statements.

Vertical and Horizontal Stare Decisis

 So to understand the idea of a holding, you also must have a basic knowledge of the doctrine of stare decisis, which is just the fancy Latin phrase for the doctrine of "precedent." Here are some very basic points:

Vertical stare decisis refers to the power of higher courts to bind lower courts. All courts in the United States are bound by vertical precedent to follow the holdings of decisions by the United States Supreme Court.

Horizontal stare decisis refers to the power of a court to bind itself. The United States Supreme Court does not consider itself bound by its own prior decisions, although it says that it gives them "substantial weight" in its deliberations. The intermediate appellate courts in the federal system are called the United States Courts of Appeal (USCA). When a USCA sits in an ordinary three judge panel, the panel is bound by the prior decisions of the Court. (The USCA is divided into circuits, e.g. the First Circuit, Second Circuit, etc.) However, each Circuit is free to overrule its own prior decisions if it is constituted as an en banc court--that is, the full complement of judges on the Circuit sit on a panel. (The Ninth Circuit is different for reasons I won't explain here.)

A Loss of Faith in the Existence of the Holding

 Law students are generally introduced to holdings very early in their law school careers. The professor may play some Socratic games with early cases, manipulating students into giving broader and narrower formulations of the holdings of the cases. It is quite likely, however, that these games will stop long before the class has a very clear idea of what a holding even is. One of the reasons for this is that the very idea of a holding best makes sense in the context of legal formalism but most law professors (consciously or unconsciously) have adopted some form of legal realism--they no longer believe in holdings in the old-fashioned sense. And when you don't believe that holdings really exist, it hardly makes sense spending a lot of class time trying to master what they are.

This loss of faith extends to some degree to the bar and bench.  But very few judges would own up to believing that there is no distinction between holdings and dicta.  Especially when it comes to vertical stare decisis, most judges seem to accept the idea that they are bound by the holdings of superior courts.  And some judges seem to be committed to the doctrine of stare decisis.

Three Theories of Holdings

In fact, there are several different theories as to what constitutes the holding of a case.  For simplicity's sake, we will focus on three of these. One theory is associated with legal formalism, and the other with legal realism. Every law student should become familiar with these two theories! Once you master them, and have an ability to spot them in action, a huge amount of confusion will simply drop away. What was cloudy will become clear. So here they are:

The Ratio Decidendi Theory. The formalist view is that the holding of a case is its ratio decidendi. What in the world does that mean?  The ration decidendi is the rule implied by the reasoning necessary to reach the outcome--on the basis of the issues contested by the parties or raised by the court and the legally salient facts that were before the court. Early in law school, you might get a professor who tries to whittle the holding of a case down to its ration decidendi by asking questions which force the student to see that the rule that she has formulated as the "holding" is broader than the facts of the case. It is very important to understand that identifying the ratio decidendi of a case involves judgments of legal salience. Thus, if the case involves an automobile accident, we know that some facts (the car was red, the accident happened on a Tuesday) are not legally salient and hence are irrelevant to the holding. Other facts (the driver was speeding or the driver was intoxicated) may be legally salient and hence are candidates for inclusion int he holding. Even on the formalist theory of holdings, identification of a holding requires the exercise of practical judgment. If someone tells you that formalists believed that holdings could be identified mechanically, then that person is trying to caricature legal formalism--likely for the purpose of dismissing it.

The Legislative Theory of Holdings.  Another theory of holdings is based on the idea that judge-made law is really a form of legislation.  The holding of the case is like a statute, a legal norm that is enacted via a judicial decision.  On this theory, statements that begin "We hold that" or "The rule is" are the holding of a case, even if the rule that is announced goes far beyond the facts of the case presented.

The Salient Legal Factual Characteristics Theory of Holdings.  One of the common views of the legal realists was that legal decisions are fact-responsive.  Judges decide cases based on their response to the facts of the particular case.  This general view has consequences for the notion of a holding.  Some legal realists maintained that the holding of a case is limited to the the legally salient facts of the case.  Any case with different legally salient factual characteristics would not be controlled by a prior case.  This view means that a single case cannot generate a broad holding; because in any one case, there will be a large number of legally salient facts.  Broad rules could emerge, however, from many cases, as some facts become legally non-salient as the body of cases grows.  The salient facts approach is similar to the ratio decidendi approach, but they are not the same.  The ratio approach focuses on the reasoning, whereas the salient facts approach considers only the facts themselves.

What is the debate between realists and formalists really about?

So there are different theories about holdings, realist and formalist. What is the debate between these three theories about? There are two answers to that question. First, there is a descriptive debate. Formalists may be claiming that when judges use the term "holding" they are, in fact, referring to the ratio decidendi of a case. Realists may be claiming that when judges use the word "holding" they are, in fact, enacted a legal or norm or identifying the facts are legally salient.

But in addition to the descriptive debate, there is a normative controversy. Legal formalists may acknowledge the existence of legislative style holdings, but argue it wrong to give courts the power to legislate in this way. Likewise, legal realists may be willing to concede that some courts still use holding in its "old-fashioned," ratio decidendi sense, but argue that judges should employ legislative style holdings, in order to produce good consequences.  Other realists might reject both of those positions, because they believe that judges ought to be fact responsive on a case-by-case basis.

The normative debate between the advocates of broad (legislative) holdings and narrow (case-bound) holdings may be connected with another big controversy--the debate between particularists and the champions of moral rules (or decision procedures).  Particularists believe that good moral judgments are focused on particular cases--and from that premise, one could argue that good legal decisions should be narrow in scope.  Those who believe in general moral rules (that correspond to moral rights) might argue that for holdings to protect these rights they must be as broad as the rights are.  Consequentialists will have their own arguments for broad (or narrow) holdings--such arguments will depend of course on the consequences of having broad or narrow legal rules.  Another set of normative consideration can be found in the rule-of-law values of publicity, predictability, certainty, and stability of legal rules.

It is always important to sort out the descriptive and prescriptive strands in this sort of debate.  It is easy to slide from descriptive arguments to normative ones, and vice versa.

Judge Posner's Radical Critique of Stare Decisis

Judge Richard Posner suggests a radical reworking of the distinction between holdings and dicta that seems to imply that he would do away with the idea of binding stare decisis altogether.  Here is what he wrote in United States v. Crawley, 837 F.2d 291 (7th Cir. 1988):

What is at stake in distinguishing holding from dictum is that a dictum is not authoritative. It is the part of an opinion that a later court, even if it is an inferior court, is free to reject. So instead of asking what the word "dictum" means we can ask what reasons there are against a court's giving weight to a passage found in a previous opinion. There are many. One is that the passage was unnecessary to the outcome of the earlier case and therefore perhaps not as fully considered as it would have been if it were essential to the outcome. A closely related reason is that the passage was not an integral part of the earlier opinion--it can be sloughed off without damaging the analytical structure of the opinion, and so it was a redundant part of that opinion and, again, may not have been fully considered. Still another reason is that the passage was not grounded in the facts of the case and the judges may therefore have lacked an adequate experiential basis for it; another, that the issue addressed in the passage was not presented as an issue, hence was not refined by the fires of adversary presentation. All these are reasons for thinking that a particular passage was not a fully measured judicial pronouncement, that it was not likely to be relied on by readers, and indeed that it may not have been part of the decision that resolved the case or controversy on which the court's jurisdiction depended (if a federal court).

Posner's position is not completely clear, but the basic idea is that we ought to be assessing judicial statements of the law for their epistemic value.  Well reasoned and carefully considered statements should be given substantial weight, but if a statement was not the result of careful deliberation, then it ought to be set aside.  As is frequently the case with Judge Posner, his position is thought provoking and idiosyncratic.  If taken to its logical conclusion, Posner's view seems to imply that we should abolish the idea of a "holding" altoghether.

Conclusion

The question, "What is the holding of such and such a case?," is inherently ambiguous. The idea of a holding is very much contested in contemporary legal theory. As a first-year law student, you will undoubtedly be searching for holdings. Here is my advice. Always look for at least three holdings when you read a case. First, look for the true ratio decidendi, the rule that is implied by the reasoning necessary to sustain the result. Be careful when you do this! Include only the legally salient aspects of the case! Second, look for the rule of law that you think the court is trying to announce. When you do this, be very sensitive to language that announces the intention of the court. "We hold that . . ." or the "The rule is . . ." are frequently giveaways as to the intentions of the court.  Finally, identify all of the legally salient factual characteristics and then construct a rule that limits the holding of the case to those facts.

And then you might compare the three holdings that emerge from these two injuries. Which is broader? Which is narrower? If you read subsequent cases that discuss this case, then you can ask a further question, "Which holding was recognized by subsequent courts as the the holding of the case?"

Related Lexicon Entries

• Legal Theory Lexicon 017: The Rule of Law
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 054: Standards of Review
• Legal Theory Lexicon 067: The Priority of the Particular

Bibliography

• Michael Abramowicz & Maxwell L. Stearns, Defining Dicta, " 57 Stan. L. Rev. 953 (2005).
• Charles W. Collier, Precedent and Legal Authority: A Critical History, 1988 Wis. L. Rev. 771 (1988).
• Frank Cross, Precedent in English Law (Clarendon Law Series) (4th ed. 1991).
• Neil Duxbury, The Nature and Authority of Precedent (2008).
• Michael J. Gerhardt, The Power of Precedent (2011).
• Arthur L. Goodheart, Determining the Ratio Decidendi of a Case, 40 Yale L.J. 161 (1930).
• Herman Oliphant, A Return to Stare Decisis, 14 A.B.A. J. 71 (1927).
• Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. Pa. J. Const. L. 155 (2006).

(This entry was last revised on January 29, 2023.)