Restitution Discussion Group Archives
| Sender: |
Allan Axelrod |
| Date: |
Fri, 9 Nov 2001 11:44:29 -0500 |
| Re: |
Etridge and the Constitution |
under the usual terminology any dictum [statement of
law unnecessary for the decision of the particular case] is non-judicial:
prospective overrulings are egregious
as it is the legislature which is authorized to lay down
rules for future behavior. a considered dictum is an attempted usurpation,
and if later respected would be judicial legislation
however, because legislating is beyond the court's authority,
the dictum does not have the force of law, and under the usual ideas of
stare decisis, a later court is not bound by the dicta of an earlier
i wouldn't get a lot of comfort from that if the later
court happens to have the very judges who enthusiastically 'legislated'
in the prior case
so although legitimate judicial holding and illegitimate
dicta differ in respectability for later courts: they are, from the gutter
perspective of clients, the same in that each will have whatever effect
a later court in fact gives it.
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