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The Embattled Constitution$
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Norman Dorsen

Print publication date: 2013

Print ISBN-13: 9780814770122

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814770122.001.0001

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Judging under the Constitution

Judging under the Constitution

Dicta about Dictum

(p.139) 5 Judging under the Constitution
The Embattled Constitution

Pierre N. Leval

NYU Press

This chapter explores the implications of dicta, an issue that frequently confronts judges in all courts. It first notes the tendency of judges to promulgate law through utterance of dictum made to look like a holding and presents two representative cases exemplifying two facets of the problem: Barapind v. Enomoto and Myers v. Loudoun County Public Schools. It then considers the definition of “dictum” and the significance of whether a rule announced by a court is dictum before proceeding with a discussion of whether judicial lawmaking through dictum is consistent with the powers and duties of courts prescribed by the U.S. Constitution and whether the treatment of dictum as established is binding law consistent with common sense and sound judicial practice. It also examines how well courts do their job when dictum is treated as holding, and where abuses of dictum are commonly found—and why. The chapter concludes with an overview of Supreme Court dicta.

Keywords:   dicta, judges, courts, holding, Barapind v. Enomoto, Myers v. Loudoun County Public Schools, judicial lawmaking, U.S. Constitution, binding law, Supreme Court

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