The aim of these reflections, which adopt the perspectives of ordinary judges and lawyers, is to try to help clarify what is uncontroversial about the distinction between holding and dictum, to explain what is troublesome about it, to provide – in fairly sketchy form – a way of understanding the authority of various legal formulations that do not fit indisputably or wholly comfortably in the category of holding or that of dictum, and to suggest a conceptual vocabulary for expressing the practical realities I consider.
In the autumn of 1986, I taught a course in Legal Method for beginning students at Columbia Law School. During the term, the class read cases from Jones, Kemochan, and Murphy's Legal Method1 that relied, at least ostensibly, on the distinction between holding and dictum. Because I had some reservations about the casebook commentary, I spent part of one class lecturing on the distinction. After the students responded with almost total confusion, I decided to put my ideas in writing for class distribution. I sought to set out how holding and dictum operate and how they may be conceived by judges and lawyers who employ the terms in practice, without burdening what I said with extensive references to competing views or with accounts of how modem skepticism about the determinacy of law might affect one's perspectives on holding and dictum.
Reflections on Holding and Dictum,
J. Legal Educ.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3802