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Monday, March 11, 2019

‘Ya Gotta Believe

Howard makes some excellent points in his latest post about Judge Sutton. One concern, though, is that more than one federal judge has told me that they think what the Suprem Court said about qualified immunity dicta not being dicta is, in fact, dicta that they will not follow. More broadly, many judges are simply unwilling to comment on an issue or rely on that commentary when there is another more succinct way to resolve the case. The same instinct might hold if a state Supreme Court insisted that state law discussions must always take priority over federal law discussions. Judicial culture matters a lot in this situation. 

Posted by Gerard Magliocca on March 11, 2019 at 07:59 AM | Permalink


Sorry: *non-outcome-determinative error findings. Autocorrect.

Posted by: Asher | Mar 12, 2019 9:15:39 AM

I'm going to say that (a) I'm 90% sure that a Camreta-like rule doesn't apply to nonsensical -outcome-determinative error findings, which doesn't by itself mean they're dicta, and (b) guess that, when parties fight over whether they're binding or not, courts largely, but not always, resort to treating them as highly persuasive dicta, if well-reasoned.

Posted by: Asher | Mar 12, 2019 9:14:55 AM

Good point. For a comparison, what do judges do with precedent in which appellate courts find error but decide it is harmless (the closest analogue to Q/I)?

Posted by: Howard Wasserman | Mar 11, 2019 5:55:42 PM

Oops! Fixed now.

Posted by: Gerard | Mar 11, 2019 3:24:50 PM

Do you mean Howard's post on Camreta?

Posted by: Asher | Mar 11, 2019 3:17:51 PM

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