Judge Posner's "Dictum" on "Dicta"

A popular method of distinguishing a case that contains harmful reasoning is to call it "mere dicta." In Tate v. Showboat Marina Casino Partnership, 05-1681 (7th Cir., 12/13/05), Judge Richard Posner ponders exactly what "dicta" (or, better put, "dictum") is. He wrote:

The plaintiffs call the statements in Harkins that we quoted merely "dicta"—that is, things the court said, not what it held; and only what a court holds is binding (within the limits of stare decisis, discussed below) in subsequent cases. But what does "dictum" (the singular of "dicta," the two words being used interchangeably by most opinion writers these days) mean exactly? There are two principal contenders. The first—that dictum is anything besides the facts and the outcome—is unacceptable; as a practical matter, it would erase stare decisis because two cases rarely have identical facts. Michael Dorf, "Dicta and Article III," 142 U. Pa. L. Rev. 1997, 2035-37, 2067 (1994). But Harkins and this case do have identical facts; so even if "dictum" were construed so broadly, these plaintiffs would be out of luck.


The sensible alternative interpretation is that the holding of a case includes, besides the facts and the outcome, the reasoning essential to that outcome. Henry J. Friendly, "In Praise of Erie—and of the New Federal Common Law," 39 N.Y.U.L. Rev. 383, 385-86 (1964) ("a court’s stated and, on its view, necessary basis for deciding does not become dictum because a critic would have decided on another basis").

We reasoned in Harkins that the jury’s verdict should be upheld not because it was a reasonable resolution of contested facts or a reasonable application of the governing legal standard to the facts, but because the facts found by the jury, and in this case established with equal firmness in summary judgment proceedings, showed that the plaintiffs, because they were part of the boat’s operating crew and in fact engaged in maritime-related activities, were, as a matter of law, seamen within the meaning of the FLSA. That was our holding, and we must follow it unless given a good reason to overrule it.


The plaintiffs’ lawyer asks us to overrule Harkins because, he contends, it was decided incorrectly. But if the fact that a court considers one of its previous decisions to be incorrect is a sufficient ground for overruling it, then stare decisis is out the window, because no doctrine of deference to precedent is needed to induce a court to follow the precedents that it agrees with; a court has no incentive to overrule them even if it is completely free to do so. The doctrine of stare decisis "imparts authority to a decision, depending on the court that rendered it, merely by virtue of the authority of the rendering court and independently of the quality of its reasoning. The essence of stare decisis is that the mere existence of certain decisions becomes a reason for adhering to their holdings in subsequent cases.” Midlock v. Apple Vacations West, Inc., 406 F.3d 453, 457 (7th Cir. 2005) (citations omitted). It is not a conclusive reason; the Supreme Court has specified considerations that a court should weigh in deciding whether to follow or to overrule a previous decision. "[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-55 (1992) (citations omitted); see also Payne v. Tennessee, 501 U.S. 808, 827-28 (1991); Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970).

The only effort the plaintiffs’ lawyer has made to fit his plea for overruling to the Court’s criteria is to argue that Harkins is inconsistent with a prior decision by this court, Howard v. Southern Illinois Riverboat Casino Cruises, Inc., 364 F.3d 854 (7th Cir. 2004). And yes, when two decisions are inconsistent, one of them should give way. But there is no inconsistency.

Judge Posner closes his opinion with a tip to appellate advocates on when it is appropriate "to seek either panel rehearing or rehearing en banc":

Because Howard is readily distinguishable from Harkins (and the present case), it provides no basis for our overruling Harkins. The only other basis on which the plaintiffs’ lawyer urges overruling is that Harkins was, he thinks, decided incorrectly. That, as we have explained, is not reason enough. We add that he didn’t think enough of the argument to seek either panel rehearing or rehearing en banc in Harkins, even though an unacknowledged conflict between two of our decisions would be an appropriate occasion for a rehearing. Not that there is a conflict; but the present appeal, argued by the same lawyer, claims there is.

Thanks to Howard Bashman of the blog How Appealing for letting us know of Judge Posner's latest opinion.


Steve Jakubowski

Written By:Francis Pileggi On December 14, 2005 10:23 AM

Very useful analysis. I will link to it.

Post A Comment / Question






Remember personal info?