Preemptive Dicta: The Problem Created by Judicial Efficiency

Judges regularly espouse dicta. Traditional obiter dicta, remarks that are clearly asides and not about issues considered in the case, can be easily ignored by subsequent courts. But one particular form of dicta is especially problematic because it is more difficult to ignore. Judicial efficiency dicta are statements in judicial opinions about issues involved in the case and likely to present themselves again, but not necessary for the outcome of the case.

While those statements are often about issues actually considered and may contribute to judicial efficiency by saving courts time when reconsidering issues already litigated, just like obiter dicta, judicial efficiency dicta exceed courts’ authority and are more likely than actual case holdings to be incorrect. Unlike obiter dicta, however, judicial efficiency dicta are difficult to identify. And most significantly, this particular form of dicta is more likely to be followed by subsequent courts, essentially being elevated to the position of holdings. Because it is more likely to become binding and cut off the natural development of the law, this “preemptive dicta” presents a significant concern.