Loud Rules

This article defines a "loud rule" as a court's statement of substantive law accompanied by a warning that future litigants risk sanctions if they relitigate the issue. The authors examine the incidence of loud rules, noting patterns in their use. Then, the authors apply the substantive "necessity" test for distinguishing dicta and holdings, concluding that although the "loud" component of the rule is technically dictum, it does not raise the same policy concerns that underlie the dicta-holding distinction. Further, the authors apply the procedural "necessity" test for the appropriate exercise of a court's inherent power, concluding that many of the policies underlying the exercise of that power are implicated in the use of loud rules.

Finally, the authors propose a slight change in the focal points of these two "necessity" tests, incorporating both substantive and procedural elements, to guide future courts on the effective and appropriate use of loud rules.