Scientists Teresa Reid-Rambo and Leanne Pflaum of the University of Florida explain the process by which obiter dicta can become binding. You write: If a court decides that it does not have jurisdiction to hear a case (or dismisses the case on the basis of a formality), but nevertheless issues opinions on the merits, these opinions may constitute obiter dicta. Other cases of obiter dicta may arise when a judge raises an obiter issue to provide context for the public or undertakes a thorough investigation into a relevant area of law. If a judge provides a hypothetical example as a clarification, it would be obiter, even if it were relevant, because it would not go into the facts of the case, as in the case of Carlill (below). The arguments and reasoning of a dissenting judgment (as used in the United Kingdom[14] and Australia[15]) or a dissenting opinion (a term used by courts in the United States) are also obiter dicta. However, these could also be invoked if a court finds that its earlier decision was erroneous, as when the U.S. Supreme Court cited the dissent of Justice Oliver Wendell Holmes, Jr. in Hammer v. Dagenhart, when he overthrew Hammer in United States v. Darby Lumber Co.

The purpose of obiter dicta varies widely and may include discussions of hypothetical facts, cases or laws, or even condemnations of dissenting opinions. Legal scholars generally disagree on what exactly constitutes dicta, as opposed to statements about precedents or binding authorities in a particular case. In Trump v. Hawaii, for example, Chief Justice John Roberts` statement included the following statement, which reveals ambiguity as to whether it merely condemns or effectively overturns a previous case: A judicial declaration can only be ratio decidendi if it relates to the crucial facts and the law of the case. Statements that are not conclusive or that relate to hypothetical facts or unrelated legal issues are obiter dicta. Obiter dicta (often simply dicta or obiter) are remarks or remarks made by a judge that, although included in the court`s opinion, are not necessarily part of the court`s decision. In a judicial opinion, obiter dicta includes, inter alia, words that are “introduced for illustrative, analogous or argumentative purposes”. [1] Contrary to the ratio decidendi, obiter dicta are not the subject of the judicial decision, even if they are correct legal statements. The so-called Wambaugh inversion test provides that in order to determine whether a judicial declaration is ratio or obiter, one must reverse the argument, that is, whether the decision would have been different if the declaration had been omitted. If so, the statement is decisive and constitutes the ratio; If it`s not crucial, it`s obiter. In other cases, the obiter dicta may propose an interpretation of the law which has no bearing on the present case, but which could be useful in future cases. [2] The most notable example of such an event is the story of the famous footnote 4 of United States v.

Carolene Products Co. (1938), which opposed the use of the due process clause to block most laws, but suggested that the clause could be used to remove laws dealing with “fundamental rights” issues. It is generally believed that this obiter dictum led to the doctrine of rigorous examination (and subsequently intermediate examination) in cases of racial, religious and sexual discrimination, first enunciated in Korematsu v. the United States (1944). Korematsu v. The United States itself was condemned by the same court in obiter dictum in Trump v. Hawaii (2018). According to the doctrine of stare decisis, statements constituting obiter dicta are not binding, although they can be very convincing in some jurisdictions such as England and Wales.

For example, in High Trees [5], Justice Denning not only granted the landlord`s application, but added that if the landlord had tried to recover the retroactive rent from the war years, the courts would have prevented him from doing so. Since the landlord did not want to recover the subsequent rent, Denning`s addition was clearly incidental, but this statement became the basis for the modern revival of the forfeiture of promissory notes. Similarly, in Hedley Byrne & Co Ltd v. Heller & Partners Ltd,[6] the House of Lords held that negligent misrepresentation could give rise to a claim for purely economic loss, even if an exclusion of liability on the basis of the facts was effective in dismissing any claim. Similarly, in Scruttons Ltd v. Midland Silicones Ltd,[7] Lord Reid suggested that, although the doctrine of contract secrecy in this case prevented longshoremen from benefiting from the protection of an opt-out clause, this protection could be effective in the future if four directives (which he listed below) were all complied with. In Carlill v. Carbolic Smoke Ball Company[8][9] (a case where a woman who had used a smoked ball as prescribed could claim the reward announced after the flu), Bowen told LJ: Latin for “things that are said in passing” – remarks made by a judge or court on a legal issue that may be of interest but is not part of the decision in the case.

An obiter dictum has no precedential value and is not binding on other courts. Similar to obiter is the concept of semble (French Norman for “it seems”). In Simpkins v Pays (1955),[18][19] a grandmother, granddaughter and tenant participated in weekly contests in the Sunday Empire News. Each week, the three women made a prognosis together and contributed to the cost of admission; But it was the grandmother`s name that was on the right one. The grandmother received £750 in prizes and refused to share it with the other two. The subtenant successfully sued for one-third of the price; but Judge Sellers added that the granddaughter was also to receive £250, although she was not involved in the trial. The obiter dicta of the U.S. Supreme Court can have an influence. [10] [11] [3] [12] [13] An example in Supreme Court history is Santa Clara County v. Southern Pacific Railroad Co. in 1886. A flippant remark by Chief Justice Morrison R.

Waite, recorded by the court reporter before the hearing, now forms the basis of the doctrine that corporations are entitled to protection under the Fourteenth Amendment. Whether or not Chief Justice Waite`s remark sets a binding precedent is debatable, but subsequent judgments treat it as such. In rendering decisions, courts sometimes cite obiter dicta passages found in the texts of expert opinions of previous cases, with or without recognition of the status of obiter dicta of the quoted passage. A quoted passage from obiter dicta may be part of the decision in a later case, depending on what the latter court actually ruled and how that court dealt with the principle set out in the quoted passage. [4] obiter dictum, Latin for “what is said in passing,” a flippant statement. In particular, in the law, it refers to a passage of a judicial opinion that is not necessary for the resolution of the dispute pending before the court. Such statements have no precedent, but can still be important. In a legislative report, after a summary of the ratio decidendi (the reasoning of the decision, which constitutes a precedent), the guiding principle may contain an obit comment from the court or a particular judge. If the obiter dictum comes from the court, it is expressed per curiam. If it comes from a particular judge, the word per appears before the judge`s name.

American jurist John Chipman Gray explained: “So that an opinion can have the weight of a precedent. it must be an expert opinion whose training is necessary to decide a particular case; In other words, it should not be obiter dictum. Dicta often take the form of unnecessarily broad statements. When a young man deliberately murdered his grandfather to prevent him from revoking a will, the court found that the beneficiary was not entitled to the bequest the will had provided him, stating that the law will not allow someone to “profit from his own wrongs or make a claim for his own injustice. or to acquire property by their own crime.” In a subsequent case involving a legatee who had negligently caused the death of the testator in a car accident, the same result would not necessarily follow. The court is free to distinguish cases according to their facts and to limit the general dictum of the previous case. A comment, suggestion or remark by a judge in an opinion that is not necessary for the resolution of the case and as such is not legally binding on other courts, but can always be cited as a persuasive authority in future litigation.