Wednesday, May 7, 2014

Some Dicta on the Nature of Holdings

In re Marriage of Boswell, No. B249141 (D2d6 Apr. 28, 2014)

As the court explains, “this is another frivolous family law appeal.” Somewhat inexplicably, the middle of the opinion contains “A Digression on the Use of the Word ‘Holding’” which explains that the term “holding” should be used only to describe the ratio decidendi of an appellate opinion. Thus, the opinion advises, a trial court never renders holdings, and even in an appellate case “holding” does not mean the conclusion, but the statement of the controlling rule. So, if the court is right, I apparently have used the term incorrectly on many occasions. Although that doesn’t matter so much, because, as the court explains—reminiscent of a classic Ninth Circuit dissent by the late Judge Pamela Rymer—its opining on the nature of holdings is dicta.  Cf. Barapind v. Emnoto, 400 F.3d 744 (9th Cir. 2005) (en banc) (Rymer, J., dissenting) (arguing that that the majority opinion’s “discussion about dicta is dicta”).

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