Intelligence Law School - Course 1: Lesson 2.4.3 Case Holdings vs. Obiter Dicta

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2.4 Judicial Decisions

2.4.3 Case Holdings vs. Obiter Dicta

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2.4.3 Case Holdings vs. Obiter Dicta Case Holdings as Primary Authority

When reading judicial opinions, it’s critical to separate the holdings of a case from the dicta.

Only the holdings represents binding law.[1]

A “holding” of a case is a court’s legal conclusion on a specific issue of law that was in dispute in the litigation.[2]

A holding in a judicial opinion can often be summed up in one concise sentence, although it usually takes appellate judges a few extra sentences to make it fancy.[3] 

Only the holdings in a judicial opinion represent primary legal authority.


But there is one slight exception.

When the Supreme Court issues a holding that is reached using a judicial test approved by a majority of the Justices, then this test will also be binding on lower courts with almost as much force as if it were part holding itself.[4]


Other than that, the rest of the words in a court’s opinion will only be secondary authority; it may be persuasive to lower courts, but it is not legally binding as law in its own right.[5] Obiter Dicta as Secondary Authority

Judicial opinions can be long.

When ruling on legal issues, appellate judges rarely state their holdings simply and move on.

They always explain their rationale for deciding the matter the way they did—often in great detail.

They like to clarify their thinking or expound on the issues that were most troubling.

Sometimes appellate judges will even give advice to the legislature about how to change the law.[6]

None of this commentary represents “law.”[7]

Only the holding on the specific issue of law presented in the case will represent the binding precedent that constitutes primary legal authority in its own right.


All of the other language in the court’s opinion falls into the category known as “obiter dicta”—also called “obiter dictum” when singular.

Lawyers often shorten this term to “dicta” in common parlance.[8]

“Obiter dicta” is a Latin term meaning “something said in passing.”[9]

“Dicta” refers to all the other things said in a judicial opinion besides the holdings.

Statements made in the dicta are not law.

Dicta may not be cited in support of a proposition without explaining the fact that it is dicta and not the holding of a case.[10]



[1] See 20 Am Jur 2d Courts § 36.

[2] See 20 Am Jur 2d Courts § 36.

[3] For an example of a refreshingly concise holding in a case related to U.S. intelligence law, see Chief Justice William Rehnquist’s 2-sentence opening to the Supreme Court’s opinion in United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990) (“The question presented by this case is whether the Fourth Amendment applies to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. We hold that it does not.”).

[4] McCoy v. Massachusetts Institute of Technology, 950 F.2d 13 610 (1st Cir. 1991); see also 5 Am Jur 2d Appellate Review § 564.

[5] Gabbs Exploration Co. v. Udall, 315 F.2d 37 (D.C. Cir. 1963); see also 5 Am Jur 2d Appellate Review § 564.

[6] See e.g. United States v. U.S. District Court, 407 U.S. 297, 323 (1972) (opining in dicta that “[i]t may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e. g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in § 2518. The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion.”).

[7] See 20 Am Jur 2d Courts § 36.

[8] See William M. Lile et al., Brief Making and the Use of Law Books 304 (3rd ed. 1914) (“Strictly speaking an ‘obiter dictum’ is a remark made or opinion expressed by a judge, in his decision upon a cause, ‘by the way’—that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy, or suggestion. … In the common speech of lawyers, all such extrajudicial expressions of legal opinions are referred to as ‘dicta,’ or ‘obiter dicta,’ these two terms being used interchangeably.”). 

[9] Black’s Law Dictionary 1100 (7th ed. 1999).

[10] See Robert C. Berring & Elizabeth A. Edinger, Finding the Law 22-23 (11th Ed. 1999).


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