The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Come for the Judicial Opinion, Stay for the "Additional Views"

A Federal Circuit panel took the unusual step of throwing in some dicta in a separate non-opinion.


Lawyers (and law students) are trained to focus on an opinion's holding and not its dicta. Sometimes it can be tricky to identify dicta, but sometimes the court makes it easy. An example of the latter arises when a court holds X, but then says "and if we didn't hold X, we would conclude Y." That question Y isn't relevant to the holding, so it's clearly dictum. For better or worse, judges sometimes put lots of dicta in their opinions.

Yesterday the Federal Circuit took a different, striking route in Facebook, Inc. v. Windy City Innovations, LLC: there was a panel opinion joined by all three judges, and then there was a separately titled "Additional views" by the same three judges. In their actual opinion, these judges held that the statutory language was clear and thus that in the absence of ambiguity there was no reason to defer to the agency's interpretation under Chevron. Then, in their additional views, the judges say (of the opinion they just issued) "[b]ecause the opinion concludes that § 315(c) is unambiguous, the majority does not address the question of what, if any, deference is owed to the PTO's interpretation of § 315(c)." True enough – saying anything more would be rank dicta. But they go on:

[W]e conclude that, were the statute ambiguous, we would alternatively resolve this matter in the same way. Specifically, we would find that no deference is due … and that the most reasonable reading of § 315(c) is the one we adopt in our majority opinion.

So they are telling us how they would resolve a hypothetical case that isn't before them. We know that because they already have decided the case that was before them in the actual majority opinion.

For those who think it is fine for judges to issue dicta, I assume that they also think that judges should demarcate their dicta as such. The judges have surely done that here.

For those (myself included) who think courts should not issue dicta like this, the issuance of these additional views is unfortunate. I understand that the judges thought about this issue and came to a conclusion, and once one has thought through an issue (and probably already written it up in this case), it is sorely tempting to tell the world. I think that judges should resist that temptation, and this "additional views" formulation makes it painfully clear that they are not resisting it.

But at least they are being honest about it. Sometimes courts smuggle dicta into their opinions. In this case, the judges didn't, and that is in some ways refreshing: if a future litigant or court wants to cite to these additional views, the citation will be to "additional views," and not to a majority opinion.

Bottom line: I think it would have been much better for the judges not to have said anything beyond the holding, though others may disagree. But one small area of agreement: if they were going to opine beyond their holding, at least they gave us a big flashing sign that says "in case you are interested in some other thoughts we have…"

NEXT: "Mass Prayer Gathering ... in Bangladesh to Read ‘Healing Verses’ Against Covid-19"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Euh, my legal latin is a little rusty, but isn't the holding the dicta? That what is said, etc...

    What you're talking about are the obiter dicta, the other things that were said.

    1. That is indeed the etymology, but American lawyers use "dicta" exclusively in the way it's used here.

      1. That is why I follow this blog.

  2. It's an issue I have not really thought about much, so this is off-the-cuff. But..

    What are the downsides to judges issuing dicta? Especially if it comes from SCOTUS (or the highest court of a particular state) If the court actually holds that "Defendant had 15 lbs of pot in the trunk of her car. This clearly suggests an intent to sell." . . . well, I'd be very happy (as a prosecutor, as a defense atty, as a would-be drug smuggler) to have the court go on to say, as pure dicta, "...In fact, we'd consider any amount over 5 lbs to create a presumption of intent to sell."

    Advantage: Now, everyone in the state (or country, if this were a case where SCOTUS could issue a nation-wide standard) knows a floor. So, a huge savings in time, avoiding the need to litigate cases of 11 lbs, or 9 lbs, or 6 lbs of pot.
    Disadvantage: Yes, we don't know what will happen in cases of 3 lbs of pot. Or even 4 lbs, 15 oz of pot. We might have known if the court had continued with additional dicta about what it means if the weight carried was under 5 lbs.
    Other disadvantages???

    1. Baake....

      The current mess involving affirmative action in higher education is being caused by the dictum of one now-deceased justice.

    2. I guess it gets too close to issuing advisory opinions and the idea that judicial power should be exercised narrowly. It could end up in broad pronouncements based on a limited factual record that stymies the considered development of the law in other courts. It could also discourage executive and legislative policy making for the same reason if they think the courts have already come to a particular conclusion. It may even throw settled rules into question undercutting your predictability argument, for instance if there was dicta in the pending Title VII cases that suggested that that statute is unconstitutional. It would be nice if they sometimes used dicta to actually make workable and predictable rules for certain areas as in your example. But that’s not necessarily what would happen.

      1. LTG,
        Possibly. But isn't it equally possible that legislatures will see a court's dicta and say, "Okay, we definitely did not intend Dicta X. We now need to pass a law that addresses this, to say ______."? So, I think it would encourage exec. and leg policy-making more than discourage it. (Although I do see the potential for negative consequences that you mentioned. Just not sure if those negatives outweigh the potential positives.)

        1. That’s true too. I guess judges should just use their, er, judgement, to figure out when it’s appropriate and useful.

    3. "Other disadvantages???"

      The case isn't about whether 5 lbs. creates a presumption of an intent to sell. It's about whether 15 lbs. creates a presumption of an intent to sell. The arguments and evidence are likely to be different in each case, so the justices declaring that 5 lbs. creates a presumption would be doing so in absence of any real evidence or argument, a terrible way for judges to operate.

      And now someone caught with 5 lbs. doesn't just have to make his case, he has to go against dicta in a Supreme Court case. Which might not be binding, but certainly can be persuasive.

  3. What constitutes the holding and dicta of an opinion depends on the argument that one is trying to make in a given. If a prior opinion is deemed to be relevant, but part of the opinion goes against the position you are taking in the current case, then one strategy is to argue that this part constitutes dicta. If a portion of the opinion bolsters your current position, then you would argue that this portion is critical to the central holding. In both situations, opposing counsel would of course be trying to convince the court of the opposite conclusion. Ultimately, the court makes its determination and authors a new opinion, which itself contains new dicta, which can be used in future arguments. It's an essential ingredient.

    1. So, in other words, the law is nothing more than clay in the hands of activist judges?

  4. It may be unappreciated by this conspirator, but one of the most surprising things about this case is that the CAFC actually issued a real opinion in this case, and not a one word “affirmed.”

    Further, the Board needs to get its act together on publication. The cite in the CAFC decision is to “No. IPR2016-01156, Paper 52, at 34 (P.T.A.B. Dec. 6, 2017)”.

  5. I think it’s sometimes reasonable for judges to say what they personally think about an issue, separate from their legal opinions, as long as it’s clearly indicated that that’s what they are doing. The fact that judges are sometimes tasked with upholding and enforcing laws they abhor makes it reasonable for them to sometimes use the bench to suggest that the legislature change the law.

    This is different, an essentially advisory legal opinion about what they would have ruled under a different scenario than occurred. I think this is less justifiable. I agree judges should avoid issuing advisory opinions about matters not clearly before them.

    Nonetheless, this is sometimes reasonable, especially for lower court judges. For example, if a legal argument is based on several grounds and one controls, it is sometimes reasonable on judicial economy grounds for a lower-court judge to decide the other grounds so that if the main issue is reversed on appeal, the case doesn’t have to start all over again.

  6. "This is different, an essentially advisory legal opinion about what they would have ruled under a different scenario than occurred."

    Is it? They seem to be saying that the statute isn't ambiguous, but even if it is our reading is still the best reading and the agency doesn't get any deference for its interpretation. Whether something is ambiguous is something that can be challenged and overturned on appeal.

    I'm less concerned about it in cases like this where they actually have to grapple with the issue they are discussing in their dicta (or alternative holding). Unlike the 5 lbs./15 lbs. case, where the arguments and evidence are likely to be different, here everything is based on the meaning of the statute. They can't decide that the statute is unambiguous without first deciding what it means. By deciding that the statute is unambiguous, they are essentially saying that the agency's interpretation isn't reasonable.

    1. This was intended as a response to Reader Y.

  7. So if you're a judge and you conclude that your decision could be justified on two independent grounds, how do you decide which one of them is the basis for your decision and which is "dicta"? Do you flip a coin? Or do you do everyone, except yourself, a favor and fully explain both grounds for your decision. That way, the appellate body avoids an pointless remand and the litigants better understand the strength of their cases. The term "dicta" should be defined or redefined as excluding that anything that is identified as an alternative and independent reason for a decision.

Please to post comments