N.L.R.B. v. Hendricks County Rural Elec. Membership Corp. 454 U.S. 170, 187 (1981)
Dicta can come to have near precedential weight in some circumstances:
This lengthy history--of concurring opinions, of references, and of clear explicit statements--means that the Court's statement in Berkemer, while technically dicta, is the kind of strong dicta that the legal community typically takes as a statement of the law. And that law has remained undisturbed for more than 20 years. There is no good reason now to reject this generation-old statement of the law. T
Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County 124 S.Ct. 2451, *2465 (2004)
However I don't think that this applies in the present context. The statement in Ermerson was dictum because it wasn't nbecessary to the result.
It is true that lawyers will try to argue that dicta are law if they help the lawyer's cause (done it myself!), but if the judges are sharp and careful, they won'y buy it.
jks
Charles Brown <cbrown at michiganlegal.org> wrote:
From: "jared"
Depends on what you mean by 'dicta.' The operative meaning of 'dicta' is whatever language a lawyer wants somebody to ignore. But lawyers (and judges) routinely cite whatever language they have at their disposal, regardless of its centrality to the holding. And even 'dicta' has precedential value.
That said, I wouldn't consider the 5th Circuit's words in Emerson dicta even under its traditional legal meaning. The panel was presented with the specific claim on appeal that Emerson's conviction violated his individual right to keep and bear arms as provided by the 2d. In order to dispose of the appeal, they HAD to address that specific claim. They *could* have assumed, rather than decide, that the amendment protected individual rights and then upheld the conviction on the reasonableness of the regulation, but they didn't do that nor were they required to. I wouldn't consider that particular language to be dicta. The Court certainly didn't think so, by explicitly saying that they were "holding" this result.
--Jared
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