segunda-feira, 28 de julho de 2014

ULY 27, 2014 Larry solum blog
Legal Theory Lexicon: Holdings
It used to be the case that an endless investigation of the difference
between holding and dictum was a central preoccupation of the first yearof law school. Nowadays, depending on which law school you attend and which set of instructors you are assigned, it is perfectly conceivable that you might make it all the way to your second year, with only a vague sense of what the difference between "holding" and "dictum" really is. This is not an accident. The old-fashioned, but still powerful, distinction between the holding of a case, which has precedential effect, and mere obiter dicta, which have only persuasive effect, does not easily fit in the post-realist landscape of contemporary American legal thought. This installment of the Legal Theory Lexicon provides a brief tour of theconcept of a holding, with a special emphasis on the ideas that are relevant to a first-year law student with a bent for legal theory. So here we go!
Holding, Dicta, and Stare Decisis
It may be obvious, but let's say it anyway. The notion of a "holding" isonly relevant because of the doctrine of stare decisis or binding
precedent. In common law systems, decisions have precedential effect. It is easy for lawyers--in the United States and other legal cultures descended from the English common-law system--to forget that this need not be the case: in civil law systems, court decisions do not create binding precedents! Given that court decisions set precedents, the question naturally arises: what is the precedential effect of a decision?The traditional answer to that question is that subsequent courts are bound to follow the holding of a decision, but they are not bound by mere dicta--statements that are "unnecessary to the decision." This is as good a place as any to mention that "dictum" is the singular (one unecessary statement) whereas the word "dicta" is the plural of dictum, meaning two or more such statements.
Vertical and Horizontal Stare Decisis
So to understand the idea of a holding, you also must have a basic
knowledge of the doctrine of stare decisis, which is just the fancy Latin phrase for "precedent." Here are some very basic points:
Vertical stare decisis refers to the power of higher courts to bind lower courts. All courts in the United States are bound by vertical precedent to follow the holdings of decisions by the United States Supreme Court. Horizontal stare decisis refers to the power of a court to bind it self. The United States Supreme Court does not consider itself bound by its own prior decisions, although it says that it gives them "substantial weight" in its deliberations. The intermediate appellate courts in the federal system are called the United States Courts of Appeal (USCA). When a USCA sits in an ordinary three judge panel, the panel is bound by the prior decisions of the Court. (The USCA is divided into circuits, e.g. the First
Circuit, Second Circuit, etc.) However, each Circuit is free to overrule
its own prior decisions if it is constituted as an en banc court--that is,
the full complement of judges on the Circuit sit on a panel. (The Ninth Circuit is different for reasons I won't explain here.)
A Loss of Faith in the Existence of the Holding Law students are generally introduced to holdings very early in their law school careers. The professor may play some socratic games with early cases, manipulating students into giving broader and narrower formulations of the holdings of the cases. It is quite likely, however, that these games will stop long before the class has a very clear idea of what a holding even is. One of the reasons for this is that the very idea of a holding best makes sense in the context of legal formalsim but most law professors (consciously or unconsciously) have adopted some form of neorealism--they no longer believe in holdings in the old-fashioned sense. And when you don't believe that holdings really exist, it hardly makes sense spending a lot of class time trying to master what they are.
Two Theories of HoldingsIn fact, there are several different theories as to what constitutes the
holding of a case. For simplicity's sake, we will focus on two of these. One theory is associated with legal formalism, and the other with legal realism. Every law student should become familiar with these two theories! Once you master them, and have an ability to spot them in action, a huge amount of confusion will simply drop away. What was cloudy will become clear. So here they are:The Formalist Theory of the Holding. The formalist view is that theholding of a case is its ratio decidendi. What in the world does that mean? The ration decidendi is the reasoning necessary to reach the result--on the basis of the issues contested by the parties. Early in law school, you might get a professor who tries to whittle the holding of a case down to its ration decidendi by asking questions which force the student to see that the rule that she has formulated as the "holding" is broader than the facts of the case. It is very important to understand that identifying the ratio decidendi of a case involves judgments of legalsalience. Thus, if the case involves an automobile accident, we know that some facts (the car was red, the accident happended on a Tuesday) are not legally salient and hence are irrelevant to the holding. Other facts (the driver was speeding or the driver was intoxicated) may be legally salient and hence are candidates for inclusion int he holding. Even on the formalist theory of holdings, identification of a holding requires the exercise of practical judgment. If someone tells you that formalists believed that holdings could be identified mechanically, then that person is trying to characterture legal formalism--likely for the purpose of dismssing it.The Realist Theory of Holdings. Legal realists have a very different theory of what constitutes a holding. Here is one way of getting at it.Legal realists view holdings as predictions of what future courts will do.The holding of a case is simply the best prediction that we can extract from the opinion as to what rule the court would apply in future cases. And what is the best evidence of how a court will behave in the future? Arguably, the best evidence is the court's own statement as to what rule it will apply in the future. This means that legal realists become very interested when a court introduces a statement of the rule with the statement: "We hold that . . . " No matter how broad this statement might be, the fact that the court pronounced it, legislatively, as a holding is strong evidence that the court regards what follows "We hold that . . ."as its own prediction as to what it will do in the future. What is the debate between realists and formalists really about?
So there are different theories about holdings, realist and formalist.What is the debate between these two theories about? There are two answers to that question. First, there is a descriptive debate. Formalists may be claiming that when judges use the term "holding" they are, in fact, referring to the ratio decidendi of a case. Realists may be claiming that when judges use the word "holding" they are, in fact, making a prediction about what the court will do in the future.But in addition to the descriptive debate, there is a normative controversy. Legal formalists may acknowledge the existence of legislative style holdings, but argue it wrong to give courts the power to legislate in this way. Likewise, legal realists may be willing to concede that some courts still use holding in its "old-fashioned," ratio decidendisense, but argue that judges should employ legislative style holdings, in order to produce good consequences.
The normative debate between the advocates of broad (legislative) holdings and narrow (case-bound) holdins may be connected with another big controversy--the debate between particularists and the champions of moral rules (or decision procedures). Particularists believe that good moral judgments are focused on particular cases--and from that premise, one could argue that good legal decisions should be narrow in scope. Those who believe in general moral rules (that correspond to moral rights) might argue that for holdings to protect these rights they must be as broad as the rights are. Consequentialists will have their own arguments for broad(or narrow) holdings--such arguments will depend of course on the consequences of having broad or narrow legal rules. Another set of
normative consideration can be found in the rule-of-law values of publicity, predictability, certainty, and stability of legal rules. It is always important to sort out the descriptive and prescriptive strands in this sort of debate. It is easy to slide from descriptivearguments to normative ones, and vice versa.
The question, "What is the holding of such and such a case?," is inherently ambiguous. The idea of a holding is very much contested in contemporary legal theory. As a first-year law student, you will undoubtedly be searching for holdings. Here is my advice. Always look for at least two holdings when you read a case. First, look for the true ratio decidendi, the narrowest reasoning necessary to sustain the result. Be careful when you do this! Include only the legally salient aspects of the case! Second, look for the rule of law that you think the court is trying to announce. When you do this, be very sensitive to language that announces the intention of the court. "We hold that . . ." or the "The rule is . . ." are frequently giveaways as to the intentions of the court. And then you might compare the two holdings that emerge from these two inquries. Which is broader? Which is narrower? If you read subsequent cases that discuss this case, then you can ask a further question, "Which holding was recognized by subsequent courts as the the holding of the case?"

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