Case footnotes---binding? Forum

[TierForceOne]

Do footnotes of a legal opinion have the same binding effect as the majority opinion?

[mjb447]

Indeed. www.greenbag.org/v2n3/v2n3_articles_james.pdf

[Winter is Coming]

Indeed. http://www.greenbag.org/v2n3/v2n3_articles_james.pdf

This is great.

[cavalier1138]

Indeed. http://www.greenbag.org/v2n3/v2n3_articles_james.pdf

Glorious.

OP: Generally, no. Footnotes are almost always going to be dicta, not the binding holding.

[Winter is Coming]

Indeed. http://www.greenbag.org/v2n3/v2n3_articles_james.pdf

Glorious.

OP: Generally, no. Footnotes are almost always going to be dicta, not the binding holding.

Counterpoint: some footnotes are "famous" in how important they turned out to be in subsequent decisions.

[encore1101]

Indeed. http://www.greenbag.org/v2n3/v2n3_articles_james.pdf

Glorious.

OP: Generally, no. Footnotes are almost always going to be dicta, not the binding holding.

Counterpoint: some footnotes are "famous" in how important they turned out to be in subsequent decisions.

Carolene Products, footnote 4 springs to mind.

[cavalier1138]

Indeed. http://www.greenbag.org/v2n3/v2n3_articles_james.pdf

Glorious.

OP: Generally, no. Footnotes are almost always going to be dicta, not the binding holding.

Counterpoint: some footnotes are "famous" in how important they turned out to be in subsequent decisions.

True. I just wouldn't classify them as "binding" in and of themselves. It's the same as all dicta. Its treatment depends on context.

[mjb447]

Indeed. http://www.greenbag.org/v2n3/v2n3_articles_james.pdf

Glorious.

OP: Generally, no. Footnotes are almost always going to be dicta, not the binding holding.

Counterpoint: some footnotes are "famous" in how important they turned out to be in subsequent decisions.

True. I just wouldn't classify them as "binding" in and of themselves. It's the same as all dicta. Its treatment depends on context.

Right, they're not "nonbinding" simply because they're footnotes, but you can still argue that a footnote doesn't announce the "binding" principle of a case, i.e. the holding. Because of the way opinions are drafted, a footnote probably won't ever announce the holding, although you might argue about whether something expressed in a footnote is necessary to the ultimate holding.

(There are also probably other appropriate reasons to cite footnotes as authority. For example, footnotes are often used to address a noncontroversial principle that doesn't need to be addressed in text, e.g., a footnote following a citation to a certain document saying "This Court may take judicial notice of [whatever document]. [Cite to general rules of judicial notice and maybe a case from 30 years ago]." In that situation, citing the recent footnote in a subsequent case where you're asking to take judicial notice of that kind of document would be fine by me.)

[Winter is Coming]

I think the really helpful ones sometimes are tangents bringing up a hypo and saying "well that's not the case here." If your facts are in line with that hypo, you have a perfect argument you can adapt (even though that footnote is technically the "holding" of the case).