Monday, April 12, 2010

Great Quotes 01 - Dicta in the Federal Circuit

Judge Lourie's comment about the binding nature of Supreme Court dicta in Ariad v. Eli Lilly (Fed. Cir. 3/22/2010)(in banc):
"As a subordinate federal court, we may not so easily dismiss such [Supreme Court] statements as dicta but are bound to follow them." (at *29)
may be contrasted with the concerns of Senior Judge Nichols in a concurrence in a 1984 Federal Circuit decision, admittedly about Federal Circuit dicta, but relevant nevertheless:
"In future cases parts of this opinion will be cited, and the response will be made that the words referred to are dicta. Future judges of this court may be struck by our wisdom and wish to follow our words, or they may perceive they are confronted with a problem we did not foresee, and find our words an embarrassment. In the latter event, it cannot now be predicted whether they will profess themselves bound by our statements, or reject them as nonbinding dicta. The future utility or subsequent career of a dictum is wholly unpredictable, and that is why judges over centuries have avoided dicta, or at least said they were doing so. When a judicial exposition relates to a concrete issue to be decided, the record facts add meaning to the words, and safeguards exist against their being read out of context. With a dictum this is not so, and it may well end up having an effect the judicial author never intended."
Railroad Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 1523-24 (Fed. Cir. 1984) (MARKEY, Friedman, Nichols) (Nichols, J. concurring).

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