Are dicta "non-judicial"? Certainly there is no duty on later courts to follow them. But it seems to me that we are in danger of confusing whether a statement of law is binding (ratio/dictum) with the very different question whether the judge has stepped outside his/her proper role (judicial/non-judicial). I don't doubt that B-W's statement was dictum, but why on earth shouldn't he have made it?

prospective overrulings are egregious

A matter of opinion, not to be resolved simply by arbitrary definitions. For an interesting survey of US and UK attitudes to prospective overrulings see:

"Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility"
Roger J. Traynor
(1999) 50 Hastings Law Journal (April) 771

on the web at: http://www.uchastings.edu/hlj/articles/Traynor_50-4.pdf

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.

Nothing wrong with the view from the gutter. As Oscar Wilde said, "We are all in the gutter, but some of us are looking at the stars."

Steve Hedley

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