1 Exercise One – Holding and Dicta in the Context of a Diversity Case
I. OF STARE DECISIS, HOLDING, AND DICTA
A. The Law of Stare Decisis
When presented with a case that requires decision on a controlling issue of first impression, a court may look to history, custom, logic, morals, public policy, and justice considerations as guides to decision. When presented with a case that presents a controlling issue the court has already decided in a previous case, the court may look to its previous decision alone. Once a legal question has been decided by a court, the court will follow its decision in subsequent cases presenting the same legal question. That is the legal doctrine known by its Latin name stare decisis (stare decisis et non quieta movere is translated as stand by precedents and not disturb settled points) or simply as following precedent.
Stare decisis requires that after a ruling on a question of law necessary to decision in a case, the ruling becomes a binding authority in that court and lower courts in future cases in which the same question of law is presented for decision. The earlier decision binds lower courts in the same judicial system, e.g., a decision of the Supreme Court of the United States binds later decisions in federal courts of appeal and district courts. The decision does not bind courts in other judicial systems, such as state courts, although it will be persuasive authority. The court will be bound by its earlier decision simply because it is an earlier decision, even though the court may believe a different result would be better.
Certainly important public policies support application of the doctrine of stare decisis instead of de novo decision of every case. The doctrine recognizes that law should provide certainty and definiteness both so that judges decide on principle instead of what may appear to be personal whims and so that lawyers can predict the result of future cases. People structure their actions in reliance on the law. The law treats people equally. The courts are able to dispose of cases with efficiency. Even when a court decides to change the law, it will do so only after extended consideration of the prior decision, which helps to ensure that the new law is sound. The Supreme Court has expressed these policies in the following words:
The doctrine of stare decisis imposes a severe burden on the litigant who asks us to disavow one of our precedents. For that doctrine not only plays an important role in orderly adjudication; it also serves the broader societal interests in evenhanded, consistent, and predictable application of legal rules. When rights have been created or modified in reliance on established rules of law, the arguments against their change have special force.
Thomas v. Washington Gas Light Co., 448 U.S. 261, 272, 100 S. Ct. 2647, 2656, 65 L.Ed.2d 757, 767 (1980).
The doctrine of stare decisis is not as dominating as it might thus far appear. First, it applies only when the facts of the second case are sufficiently similar to the facts of the precedent case that the second court decides the cases should be treated alike. Oftentimes, the second court will reject the binding effect of the first decision by distinguishing the case on the facts. Second, stare decisis does not apply to everything a court might write in a judicial opinion. It applies only to the actual, narrow “holding” of the earlier case. The concept of holding is loosely synonymous with the ratio decidendi of the opinion, i.e., the reason the court gives for its result (although a careful reader of an opinion might decide the reason the court gives for its decision is not the actual holding of the case). A comment the court might express during the course of the opinion that does not control the actual result is known as a dictum; the plural of such comments is dicta. The stare decisis, or binding effect, of the decision applies only to the holding, or ratio decidendi, and not to any dicta the court might have seen fit to mention along the way. A sound statement of this is the following:
[N]ot every statement made in a judicial decision is an authoritative source to be followed in a later case presenting a similar situation. Only those statements in an earlier decision which may be said to constitute the ratio decidendi of that case are held to be binding, as a matter of general principle, in subsequent cases. Propositions not partaking of the character of ratio decidendi may be disregarded by the judge deciding the later case. Such nonauthoritative statements are usually referred to as dicta or (if they are quite unessential for the determination of the points at issue) obiter dicta [1]
The holding of a case is binding. Dicta may be disregarded. Clearly, judges and lawyers must be able to separate the holding from a dictum. Developing that ability to analyze and dissect court opinions is one of the most important tasks for a law student in the first year of law school. The remainder of this exercise assists in that task.
B. The Concepts of Holding and Dictum
We begin with a hypothetical court opinion. Suppose that plaintiff [P] brings a tort suit in federal district court under diversity of citizenship jurisdiction. The governing statute, 28 U.S.C. § 1332(a), requires that the “matter in controversy” must exceed $75,000. P in the complaint asks for $85,000 in compensatory damages. Defendant [D] moves under Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of subject matter jurisdiction on the ground that P will be unable to convince the jury to award more than $75,000. The district judge denies the motion, writing “The face of the complaint controls the amount in controversy.” The opinion also notes “Interest and costs cannot be added.” Finally, the judge ruminates about the increasing federal caseload and concludes “The attorney for any plaintiff who files an inadequate amount diversity claim should be subject to Federal Rule 11 sanctions.”
These three statements are treated differently. Lawyers would describe the statement about the face of the complaint as the holding, or the ratio decidendi, of the case. The other two statements would be classified as dicta; the last statement about Rule 11, since it is far from the holding of the case–and indeed would be relevant only had the decision been for D instead of for P–might be called an obiter dictum.
Sometime later another federal judge is presented with a similar case. This court distinguishes P’s case on its facts and rules that the face of the complaint does not control when to a legal certainty plaintiff’s recovery cannot exceed $75,000. Then another federal court interprets P’s case to apply only to pleading in good faith, and not to a situation where plaintiff has in bad faith claimed in excess of $75,000. Still another federal court rules that interest can be considered when it is the basis of the claim, such as interest on a loan.
All of these cases add qualifications to the rule announced in P’s case without rejecting it on its facts. Does this mean that a lawyer who reads the holding of the case as “The face of the complaint controls the amount in controversy” is wrong?
We answer no, because that is an accurate statement of the decision of the court on the facts of the case before it. Lawyers describe the court’s statement about the face of the complaint as holding rather than dictum, even though recognizing that the holding may be qualified in a subsequent case arising in a different factual context. In that subsequent case, the lawyer will wish to state the holding of the first case broadly or narrowly, depending on which interpretation will favor the lawyer’s client.[2]
Some other scholars might answer yes. Because of the expanding and contracting nature of judicial precedent, one scholar has asserted that every statement of a rule of law in a judicial opinion is “mere dictum.”[3] Another has argued that the holding of a case should be determined from the material facts relied on by the court, not by the rules of law set forth in its opinion.[4] Another has said that the true rule of a case is not what the court said, but what a later court will say the case held.[5]
These views are possibly misleading. Statements of rules of law in an opinion are not mere epiphenomena—not mere bothersome noise that accompanies the business of hammering out facts and a decision. The rule of law stated in P’s case tells us what facts the court thought important. The court found jurisdiction over P’s case because the complaint demanded a recovery exceeding $75,000, not because the facts pleaded could be recast into a federal question, even though such a suggestion might appear in the court’s opinion. A subsequent court looking at the case would scrutinize the facts and language relating to the jurisdictional amount, not the facts and language relating to a possible federal question. And the rule that “The face of the complaint controls the amount in controversy” might be overruled, modified, distinguished, or refined, but it cannot be ignored with a clear conscience.
The court’s statement about the face of the complaint is better described as holding, not dictum, even though we may recognize that any broad statement of holding may be qualified in a subsequent case arising in a somewhat different factual context.
The term holding, as used in this exercise, is not meant to describe a rule of law that will never be qualified or refined in subsequent cases. Rather, holding is used to describe the result reached by the court on the facts of the case before it. Such rules are not immune from subsequent modification, but they are at least partly free from the infirmities of dicta. Rules stated in dicta have diminished significance because they concern matters that probably were not briefed or argued, and so were not carefully considered by the court. Also, the judges of the court are familiar with the uses of precedent and the conventions of the legal profession, so they normally will not expect dicta to be given the same respect as holding. In fact, some of the judges who signed on to the opinion might have disagreed with its dicta, but refrained from explaining their position because of an expectation that the dicta would be lightly treated.
This exercise proceeds on the assumption that a lawyer will distinguish holding from dicta in a fashion that permits a statement of a general rule of law to be characterized as holding. At the same time, you should recognize that whether a rule is a holding or a dictum is only one of many considerations taken into account by subsequent courts in deciding on the weight and scope to be given to the rule. A subsequent court may give full precedential weight to a welcome dictum of an earlier opinion, or, because a broadly stated holding shares some of the infirmities of a dictum, a subsequent court may properly narrow it in factually distinguishable cases.
The following paragraphs set forth definitions of the terms holding and dictum. These definitions are consistent with usage in ordinary discourse among lawyers. You should bear in mind, however, that no set of definitions could possibly embrace all of the different meanings that have been given to these concepts by courts, lawyers, and scholars.
1. A Holding Is a Rule of Law Applied by the Court to the Case Before It
The rule must have been applied by the court. That is, the rule must have been applicable to the facts before the court, and the rule must apparently have influenced the court in reaching its result. If a rule meets these requirements, it is holding even if the court would probably have reached the same result had it declined to accept the rule, and even if the same result could have been reached by framing a more narrow rule.
(1) An appellate opinion reverses a jury verdict for plaintiff on the ground that the jury instructions were erroneous. The rule stated in the case is holding, even though the court suggests that, had it declined to accept the defendant’s argument on the instructions, it would have reversed the verdict anyway on the ground that the evidence was insufficient to support the verdict.[6]
(2) A wife confesses in confidence to her husband that she committed a crime. At trial of the wife, the husband refuses to testify about the confession. He is held in contempt. The appellate court reverses, declaring that “No one may be compelled to testify against a spouse in any criminal proceeding.” The broadly-stated principle is holding, even though the same result could have been reached by adopting a narrower rule that excluded compelled testimony only about confidential communications.
The rule of law need not have been stated by the court. All cases have holdings, but in some cases the court does not attempt to state any general rule of law.
Example:
An appellate opinion reviewing a defendant’s verdict in a personal injury case begins with a three‑page statement of facts pointing out that the defendant’s lawyer brought improper evidence to the jury’s attention, made an inflammatory closing argument, and engaged in other inappropriate conduct throughout the trial. After its statement of facts, the court closes its opinion by stating simply “In the circumstances of this case, the defense counsel’s conduct was so reprehensible that we feel compelled to reverse.” A lawyer attempting to summarize the holding of this case in a meaningful fashion would have to generalize; no particular passage from the court’s opinion could be quoted as the holding.
In a slander case, the court upholds a verdict against a prosecutor who made untrue statements about a criminal defendant at a press conference. The court opines that the prosecutor’s statements would have been privileged had they been made during the course of courtroom proceedings instead of at a press conference. The court’s statement about courtroom privilege is dictum, since it does not apply to the facts of the case before it.
This requirement means that an opinion’s statement of legal doctrine must not only apply to the facts but also support the result. The holding must follow the result in the case. This requirement is often expressed by saying that the holding must be “necessary” to the result, but that seems to be too strict a statement of the requirement, since a person could always conceive of a way in which the court could have reached the same result on another ground or endorsed a narrower rule of decision; no rule of law stated in an opinion is absolutely necessary to the result.[7] The definition set forth here adopts a more permissive test based upon whether the stated rule “supports” the result. It thus sweeps into its category of holding broad statements of law that some lawyers would characterize as dicta on grounds that the statements were not necessary to the result.[8]
(1) An appellate opinion in one paragraph reverses the trial court for failure to grant plaintiff the proper number of peremptory challenges. The opinion then continues for several pages to analyze the tort doctrine of proximate cause “since this case will have to be retried,” and concludes that the trial court’s application of proximate cause was correct. The holding of the case cannot pertain to proximate cause because the case was reversed, and the result of the proximate cause discussion would have produced an affirmance. The holding lies in the ruling on peremptory challenges.
(2) In a libel case, a jury returns a verdict against a newspaper that had printed an untrue story about a movie star. The trial judge had instructed the jury that since movie stars are public figures, news stories about them are conditionally privileged; therefore, the movie star would recover damages only by establishing that the newspaper either knew the story was false or acted with reckless disregard of whether the story was true or false.
The appellate court agrees with the instruction that stories about movie stars are conditionally privileged, yet it affirms the judgment against the newspaper on grounds that the movie star produced sufficient evidence to justify a verdict that the newspaper knew that the story was false.
The appellate court’s statement that stories about movie stars are conditionally privileged is dictum; although applicable to the facts before the court, the statement does not support the result reached. (Had the court reversed on grounds that the evidence was insufficient, the court’s statement about privilege may have been holding instead of dictum.)
When a court states more than one ground for its decision, each may be a holding of the court, so long as each contributes support to the result. This is so even though any one of the grounds relied on independently would support the result. Holdings of this nature are often called “alternative holdings.”
Plaintiff sues the state, claiming benefits provided by state statute for persons who served in the war in Iraq. Plaintiff had enlisted in the Army during the war and served at Fort Benning, Georgia, for five weeks before receiving a medical discharge. The trial judge grants a defense motion for summary judgment, and the appellate court affirms, stating that plaintiff is ineligible for benefits (1) because the statute applies only to persons who serve their entire enlistment period, and (2) because the statute applies only to persons actually stationed in Iraq. Both of the rulings are holdings of the court.
C. Stating the Holding of a Case in Class
A question asking you for the holding of a case requests the precedential message. To prepare a satisfactory answer, a student must discard irrelevant facts, separate holding from dicta, and decide what issues were framed for decision in the procedural posture of the case. Then you must summarize the essence of the case. If you cannot do these things, you probably do not really understand the case. Certainly the holding cannot be extemporized on the spot in class: it must be carefully crafted, probably in a case brief, ahead of time.
The following guidelines may be helpful in formulating the holding of a case:
1. Formulate a rule that would be helpful to a lawyer who has not read the case and wants to know what the case holds. “The court held that the plaintiff was entitled to damages” is useless. It is not a summary of any rule of law established by the case. It is merely a statement of the procedural result. Even the length of the supposed holding gives away its inadequacy. A holding will seldom be so short; it must contain enough detail so that a person who has not read the case can understand the rule of law the case establishes as a precedent.
2. State the holding that is most relevant to the purpose for which the case is being studied. A case may have multiple holdings. Suppose that a case has been appealed because plaintiff claims the trial judge denied a valid jurisdictional defense, denied an amendment to the complaint, excluded admissible evidence, and erroneously instructed on the law of products liability. Any of these grounds would be sufficient for reversal. When the appellate court determines there was no error, it will necessarily have produced a holding on each one of these issues.
When asked to state the holding of a case, you are expected to choose from among these holdings the one that is most germane to the topic being studied. For example, if you are studying jurisdiction, then you should state the court’s holding on jurisdiction.
3. State the holding at a level of generality that is useful for the purpose for which the case is being studied.
Your goal is to state the holding at a high level of generality so that the precedent can be applied to other cases. At the same time, the holding can be no broader than the rule of law established by the case. Finding the right level of generality/specificity is a skill learned over time. Beginning students often state holdings at such a high level of generality that they fail to show how the case has contributed to the body of precedent being studied.
(1) Suppose that the general law governing personal jurisdiction over a defendant served by a long-arm statute is that the defendant must have minimum contacts so that maintenance of the suit in the state does not offend traditional notions of fair play and substantial justice. This was the holding of a famous Supreme Court decision in 1945.[i] Since that year, thousands of cases have mentioned the minimum contacts language. Your casebook contains a series of cases interpreting this rule. Undoubtedly almost every case contains somewhere in the opinion this language about minimum contacts. Although this rule is one of the holdings of these cases, stating the holding at such a high level of generality is pointless. You do not advance the inquiry at all. You should state a holding that adds some additional content to the basic rule. In a case that applies the language to specific facts, for example, the holding might be “A defendant seller who solicits and purposefully enters a single contract for goods to be shipped into the state has sufficient minimum contacts to support personal jurisdiction by the state over it in an action to collect damages when the goods shipped into the state are defective.” One can be no more general without losing the rule of law established by the holding.
(2) In your first torts class, you read a case in which defendant playfully slaps plaintiff lightly across the face. The appellate court affirms a verdict for plaintiff for the intentional tort of battery. To say the holding is “A battery is an intentional touching of the person that is harmful or offensive” is worth little. It merely restates the law that has existed for hundreds of years prior to this case. Instead the holding should center on what this case adds to the law. It might be “A playful slap to the face is sufficient to establish an offensive touching of the person as an element of a battery.”
Although beginning law students tend to err on the side of excessive generality, they also can state a holding at a level that is too specific for the purpose for which the case is being studied. One way of stating a holding is to recite all of the relevant facts and then describe the result that the court reached on those facts; a holding so narrowly tied to the facts of the case will not usually be a useful study aid. You should remember that your first‑year courses are survey courses, covering vast areas of doctrine in a short period. Your statement of a holding should be general enough to contribute to a broad doctrinal framework. To achieve a general statement, you must necessarily omit some possibly relevant facts.
4. Use the court’s own language from the opinion when possible.
In your attempt to state a holding at a useful level of generality, you may find language you can quote directly from the opinion. Sometimes the court will write “our holding today is” or “we decide the issue of.” You may be able simply to lift an entire sentence as your holding, but be careful. Some such statements in opinions precede excellent holdings; others precede language no more valuable than “whether the case should be reversed.” Even when the court does not provide such an obvious guide to its holding, you will often be able to–and should–seize on a sentence, phrase, or key words from the opinion that build your holding.
You should construct your holding entirely from your own language only when you conclude that none of the court’s phrasing adequately captures its holding. You will be unable to lift language from the opinion in a surprisingly large number of cases.
II. WRITTEN EXERCISE: STATING THE HOLDING OF A CASE
You are attending your first civil procedure class. You have been given an advance assignment to read and brief Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S. Ct. 42, 53 L.Ed. 126 (1908). This case is in a section of your casebook entitled “The General Definition of Federal Question Jurisdiction.”
Read the following opinion with an eye to stating the holding. At the end of the opinion, you will be asked to state the holding. You will also be asked to evaluate seven possible statements of the holding.
LOUISVILLE & NASHVILLE RAILROAD CO. v. MOTTLEY
Supreme Court of the United States, 1908.
211 U.S. 149, 29 S. Ct. 42, 53 L.Ed. 126.
The appellees (husband and wife), being residents and citizens of Kentucky, brought this suit in equity in the Circuit Court of the United States for the Western District of Kentucky against the appellant, a railroad company and a citizen of the same State. The object of the suit was to compel the specific performance of the following contract:
“Louisville, Ky., Oct. 2nd, 1871.
“The Louisville & Nashville Railroad Company in consideration that E.L. Mottley and wife, Annie E. Mottley, have this day released Company from all damages or claims for damages for injuries received by them on the 7th of September, 1871, in consequence of a collision of trains on the railroad of said Company at Randolph’s Station, Jefferson County, Kentucky, hereby agrees to issue free passes on said Railroad and branches now existing or to exist, to said E.L. & Annie E. Mottley for the remainder of the present year, and thereafter to renew said passes annually during the lives of said Mottley and wife or either of them.”
The bill alleged that in September, 1871, plaintiffs, while passengers upon the defendant railroad, were injured by the defendant’s negligence, and released their respective claims for damages in consideration of the agreement for transportation during their lives, expressed in the contract. It is alleged that the contract was performed by the defendant up to January 1, 1907, when the defendant declined to renew the passes. The bill then alleges that the refusal to comply with the contract was based solely upon that part of the act of Congress of June 29, 1906 (34 Stat. at L. 584, Chap. 3591, U.S.Comp.Stat.Supp.1907, p. 892), which forbids the giving of free passes or free transportation. The bill further alleges: First, that the act of Congress referred to does not prohibit the giving of passes under the circumstances of this case; and, second, that, if the law is to be construed as prohibiting such passes, it is in conflict with the 5th Amendment of the Constitution, because it deprives the plaintiffs of their property without due process of law. The defendant demurred to the bill. The judge of the circuit court overruled the demurrer, entered a decree for the relief prayed for, and the defendant appealed directly to this court….
Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court.
Two questions of law were raised by the demurrer to the bill, were brought here by appeal, and have been argued before us. They are, first, whether that part of the act of Congress of June 29, 1906 (34 Stat. at L. 584, Chap. 3591, U.S.Comp.Stat.Supp.1907, p. 892), which forbids the giving of free passes or the collection of any different compensation for transportation of passengers than that specified in the tariff filed, makes it unlawful to perform a contract for transportation of persons who, in good faith, before the passage of the act, had accepted such contract in satisfaction of a valid cause of action against the railroad; and, second, whether the statute, if it should be construed to render such a contract unlawful, is in violation of the 5th Amendment of the Constitution of the United States. We do not deem it necessary, however, to consider either of these questions, because, in our opinion, the court below was without jurisdiction of the cause. Neither party had questioned that jurisdiction, but it is the duty of this court to see to it that the jurisdiction of the circuit court, which is defined and limited by statute, is not exceeded. This duty we have frequently performed of our own motion. [Citations omitted.]
There was no diversity of citizenship, and it is not and cannot be suggested that there was any ground of jurisdiction, except that the case was a “suit … arising under the Constitution or laws of the United States.” Act of August 13, 1888, L. 866, 25 Stat. 433, 434. It is the settled interpretation of these words, as used in this statute, conferring jurisdiction, that a suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff’s original cause of action, arises under the Constitution…. [I]n Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing Co., 188 U.S. 632, 47 L.Ed. 626, 23 Sup. Ct. Rep. 434, the plaintiff brought suit in the circuit court of the United States for the conversion of copper ore and for an injunction against its continuance. The plaintiff then alleged, for the purpose of showing jurisdiction, in substance, that the defendant would set up in defense certain laws of the United States. The cause was held to be beyond the jurisdiction of the circuit court, the court saying, by Mr. Justice Peckham (pp. 638, 639):
“It would be wholly unnecessary and improper, in order to prove complainant’s cause of action, to go into any matters of defense which the defendants might possibly set up, and then attempt to reply to such defense, and thus, if possible, to show that a Federal question might or probably would arise in the course of the trial of the case. To allege such defense and then make an answer to it before the defendant has the opportunity to itself plead or prove its own defense is inconsistent with any known rule of pleading, so far as we are aware, and is improper.
“The rule is a reasonable and just one that the complainant in the first instance shall be confined to a statement of its cause of action, leaving to the defendant to set up in his answer what his defense is, and, if anything more than a denial of complainant’s cause of action, imposing upon the defendant the burden of proving such defense.
“Conforming itself to that rule, the complainant would not, in the assertion of proof of its cause of action, bring up a single Federal question. The presentation of its cause of action would not show that it was one arising under the Constitution or laws of the United States.
“The only way in which it might be claimed that a Federal question was presented would be in the complainant’s statement of what the defense of defendants would be, and complainant’s answer to such defense. Under these circumstances the case is brought within the rule laid down in Tennessee v. Union & Planters’ Bank, supra. That case has been cited and approved many times since….”
It is ordered that
the Judgment be reversed and the case remitted to the Circuit Court with instructions to dismiss the suit for want of jurisdiction.
__________
You anticipate that in class the professor will ask “What is the holding of Mottley?” Of course your answer must be prepared ahead of time in your brief. Before proceeding to evaluate the following possible statements of the holding, you will benefit by working out your own statement of the holding in Mottley.
__________
Some mistakes in stating a holding are common. See whether any of the “Common Mistakes” listed below apply to your statement of the holding.
COMMON MISTAKES IN STATING A HOLDING
1. Inaccurately describing a rule of law applied by the court.
2. Stating a dictum instead of holding.
3. Stating a rule of law that is one of the holdings of the case, but not the holding most relevant to the purpose for which the case has been read.
4. Stating a rule of law in terms too general to be useful for the purpose for which the case has been read.
5. Stating a rule of law in terms too specific to be useful for the purpose for which the case has been read.
6. Stating the result of the case instead of stating a rule of law.
__________
Assume the professor asks the same question to eight of your classmates. Consider each of the following answers and decide whether it would be satisfactory, or whether it is flawed by one of the above Common Mistakes in Stating a Holding. After making your own evaluations, you can then compare your answers with the authors’ evaluations that follow.
ANSWER 1. Where there is no diversity of citizenship or other basis for federal jurisdiction, a federal court should dismiss the case before it.
Is this a satisfactory statement of the holding? If no, why not? Answer with a number from the Common Mistakes in Stating a Holding.
ANSWER 2. The Supreme Court may consider an issue of subject matter jurisdiction on its own motion, even if the parties did not raise the issue below.
Is this a satisfactory statement of the holding? If no, why not? Answer with a number from the Common Mistakes in Stating a Holding.
ANSWER 3. In a bill demanding specific performance of a contract, allegations that the defendant has based its refusal to perform the contract upon federal law are superfluous.
Is this a satisfactory statement of the holding? If no, why not? Answer with a number from the Common Mistakes in Stating a Holding.
ANSWER 4. Plaintiffs asking for specific performance of a contract cannot create federal question jurisdiction by alleging in the complaint that the defendant has relied on a privilege created by federal law in refusing to perform the contract.
Is this a satisfactory statement of the holding? If no, why not? Answer with a number from the Common Mistakes in Stating a Holding.
ANSWER 5. Federal question jurisdiction does not exist when the federal issue appears in the plaintiff’s complaint only as an anticipated defense.
Is this a satisfactory statement of the holding? If no, why not? Answer with a number or numbers from the Common Mistakes in Stating a Holding.
ANSWER 6. A federal question is presented to the court if the pleadings of the parties show that the case will involve an important issue of federal law.
Is this a satisfactory statement of the holding? If no, why not? Answer with a number from the Common Mistakes in Stating a Holding.
ANSWER 7. This case must be dismissed for lack of jurisdiction.
Is this a satisfactory statement of the holding? If no, why not? Answer with a number from the Common Mistakes in Stating a Holding.
ANSWER 8. No diversity of citizenship exists between two plaintiffs and a defendant who are all citizens of the same state.
Is this a satisfactory statement of the holding? If no, why not? Answer with a number from the Common Mistakes in Stating a Holding.
AUTHORS’ EVALUATION OF THE STATEMENTS OF THE MOTTLEY HOLDING
1. Where there is no diversity of citizenship or other basis for federal jurisdiction, a federal court should dismiss the case before it.
This statement is not satisfactory for reason 4. The statement is accurate and relevant to the purpose for which the case is being studied, but the statement is so general that it does not usefully describe the precedent established by the case. More specificity is needed.
2. The Supreme Court may consider an issue of subject matter jurisdiction on its own motion, even if the parties did not raise the issue below.
This statement is not satisfactory for reason 3. This rule is certainly one of the holdings of the case. If a lawyer were arguing a case presenting the issue whether a defense of subject matter jurisdiction had been waived, this statement could properly be described as the holding of the case. On the other hand, the student should never ignore the casebook Table of Contents. The editors’ placement of Mottley in “The General Definition of Federal Question Jurisdiction” suggests that the case has been assigned because of its definition of federal question jurisdiction, not because of its holding on the waiver issue. Therefore, one might argue that the waiver rule is not the holding because it is not the rule of law most relevant to the purpose for which the case has been read.
3. In a bill demanding specific performance of a contract, allegations that the defendant has based its refusal to perform the contract upon federal law are superfluous.
This statement is not satisfactory for reason 3. This rule is one of the holdings of the case, but it is not the holding most relevant to the purpose for which the case has been assigned. The placement of Mottley in the casebook shows that it is meant to be read for its holding about the nature of federal question jurisdiction, not for its holding about superfluity in pleading.
4. Plaintiffs asking for specific performance of a contract cannot create federal question jurisdiction by alleging in the complaint that the defendant has relied on a privilege created by federal law in refusing to perform a contract.
This statement is not satisfactory for reason 5. Even though a reasonable argument can be made that this statement of the holding is satisfactory, the statement is probably too specific to be useful for the purpose for which the case has been read. This might be an appropriate statement of the holding if the case were being studied for a more narrow purpose—for example, by a lawyer doing research for an appellate argument in a contract case in which the plaintiff sought to base federal jurisdiction upon allegations that the defendant had relied upon federal law in failing to perform its promise. The placement of this case in the casebook indicates that it is meant to convey a general rule about federal question jurisdiction rather than a specific rule for contract cases. The holding should be stated with greater generality, so that it applies to cases other than contract cases.
5. Federal question jurisdiction does not exist when the federal issue appears in the plaintiff’s complaint only as an anticipated defense.
This is a good statement of the holding. It formulates the relevant holding of the case at the appropriate level of generality. Of course, this statement is not a magic form of words. Other similar formulations would also be acceptable, e.g., “There is no federal question jurisdiction if the facts that give rise to the federal issue should have been pleaded by the defendant instead of the plaintiff,” or “There is no federal question jurisdiction unless the facts giving rise to a federal issue are made to appear, without inserting superfluous language, in the plaintiff’s initial pleading.”
6. A federal question is presented to the court if the pleadings of the parties show that the case will involve an important issue of federal law.
This statement is not satisfactory for reason 1. It is an inaccurate statement of the doctrine of Mottley. The opinion states there is no federal question jurisdiction unless the facts giving rise to the federal issue appear, without inserting superfluous language, in the plaintiff’s complaint. The fact that defendant’s answer reveals the existence of an important federal issue will not suffice to create federal question jurisdiction.
7. This case must be dismissed for lack of jurisdiction.
This statement is not satisfactory for reason 6. It merely describes the result reached, not a rule of law established by the case.
8. No diversity of citizenship exists between two plaintiffs and a defendant who are all citizens of the same state.
This statement is not satisfactory for reason 2. While the court did note there was no diversity of citizenship, the case clearly is decided on the issue of federal question jurisdiction. The discussion of diversity jurisdiction is a dictum.
III. COMPUTER–AIDED EXERCISE: BAKER V. KECK
This written material and the accompanying computer-aided exercise, CALI CIV 05: Analysis of a Diversity Case, explore the nature of holding and dictum in the context of an opinion on diversity of citizenship jurisdiction. The computer will require you to distinguish holding and dicta so that you can state the holding of Baker v. Keck, an opinion that appears following this introductory note. The computer will also ask you other questions to analyze the meaning of passages in the opinion. The exercise is based on the following fact scenario.
You are a new associate working for a law firm in the state of Fraser. One of the firm’s partners asks you to do some research on a personal injury action the firm has brought on behalf of Pam Pedestrian against David Driver. Pedestrian’s tort claim arises under state law, and the only plausible basis for federal jurisdiction is diversity of citizenship.
Your firm filed Pedestrian’s suit in federal district court for Fraser. Driver moved under Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of subject matter jurisdiction; he asserts that both Pedestrian and Driver are citizens of the same state, Fraser, so there is no diversity of citizenship. The motion has been set for hearing next week and the partner wants to submit to the court a legal memorandum on the issue of diversity of citizenship. She tells you to work with the following set of facts, which have already been developed in the case file.
Pam Pedestrian is without question a citizen of Fraser. She suffered injuries that are serious enough to satisfy the $75,000 jurisdictional amount requirement.
David Driver is a law student, age 25, single, born and reared at his parents’ home in Fraser. He graduated from college at Fraser State University, and is now a student at Coffman Law School in the state of Coffman. Driver is living in an apartment in Coffman while finishing the last half of his final year in law school. Driver’s parents have continued to support him during his attendance at law school, and he has frequently returned to his parents’ home during vacation periods. Driver recently accepted a full‑time job with a law firm in a third state, Northrop.
In an affidavit submitted with the motion to dismiss, Driver swore to the following facts:
I went to high school and college while living at home in Fraser. Two and a half years ago I entered law school in Coffman. I have always had a definite intent to leave Coffman immediately after graduation. I voted in Coffman during the last election, but have never participated in politics here in any other way. I have never belonged to any organizations in Coffman or held a job here. I have now accepted a job with a law firm in Northrop. I received the offer by telephone after interviewing in Coffman; I have never been in Northrop. I am living in an apartment in Coffman while finishing my last year of law school. I intend never to come back to Coffman after I leave. During law school my parents have paid my expenses, and I have visited them during vacations at our family home in Fraser; however, I do not plan on going back to Fraser. I have always wanted to go to a populous state like Northrop to practice.
You have started research for the memorandum that will be submitted to the trial court. You quickly found the relevant jurisdictional statute, 28 U.S.C. § 1332:
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
(1) citizens of different states***.
Initial research also revealed that in your federal district, consistent with all other districts, the following two propositions are generally accepted:
1. A United States citizen is also a citizen of the state in which that person is domiciled. [Both Pedestrian and Driver are United States citizens.]
2. A domicile once established endures until a new one is acquired. Consequently, Driver is still domiciled in Fraser unless he has acquired a new domicile in Coffman or Northrup.
Your research also discovered Baker v. Keck, 13 F. Supp. 486 (E.D. Ill.1936). Even though the opinion is today three-quarters of a century old, the legal principles it states remain good law. For the purposes of this computer‑aided exercise, treat Baker as a recent case decided by the district judge who is assigned to your case.
The computer exercise will ask you to participate in a discussion with other associates in your law firm. Your associates will make assertions about Baker, and you will be asked to agree or disagree with them. Please study Baker carefully, and take the opinion with you to the computer. The opinion is divided into sections, each of which is numbered. Some questions asked by the computer will refer to the sections by number.
BAKER v. KECK
United States District Court, Eastern District of Illinois, 1936.
13 F. Supp. 486.
Lindley, District Judge.
[§ 1]
Plaintiff has filed herein his suit against various individuals and the Progressive Miners of America charging a conspiracy, out of which grew certain events and in the course of which, it is averred, he was attacked by certain of the defendants and his arm shot off. This, it is said, resulted from a controversy between the United States Mine Workers and the Progressive Miners of America.
[§ 2]
Plaintiff avers that he is a citizen of the state of Oklahoma. Defendants filed a motion to dismiss, one ground of which is that plaintiff is not a citizen of the state of Oklahoma, but has a domicile in the state of Illinois, and that therefore there is no diversity of citizenship. To this motion plaintiff filed a response, with certain affidavits in support thereof.
[§ 3]
Upon presentation of the motion, the court set the issue of fact arising upon the averments of the complaint, the motion to dismiss, and the response thereto for hearing. A jury was waived. Affidavits were received and parol evidence offered.
[§ 4]
It appears that plaintiff formerly resided in Saline County, Ill., that he was not a member of United Mine Workers, but was in sympathy with their organization. The averment of the declaration is that he was attacked by members of, or sympathizers with, the Progressive Mine Workers of America. He was a farmer, owning about 100 acres of land. After his injury, he removed to the state of Oklahoma, taking with him his family and all of his household goods, except two beds and some other small items. His household furniture was carried to Oklahoma by truck, and the truckman was paid $100 for transportation. Near Ulan, Okl. he rented 20 acres and a house for $150 per year, and began occupancy thereof October, 1934. He testified that he had arrangements with another party and his own son, living with him, to cultivate the
[§ 5]
ground, but that farming conditions were not satisfactory, and that it was impossible, therefore, to produce a crop in 1935. He produced potatoes, sweet corn, and other garden products used in the living of the family. He had no horses or other livestock in Oklahoma. He was unable to do any extensive work himself because of the loss of his arm. In the summer of 1935 he leased for the year 1936 the same 20 acres and an additional 20 acres at a rental of $150.
[§ 6]
At the first opportunity to register as a qualified voter in Oklahoma after he went there, he complied with the statute in that respect and was duly registered. This was not until after he had been in the state for over a year, as, under the state statute, a qualified voter must have resided within the state for twelve months prior to registration. He has not voted, but he testified that the only election at which he could have voted after he registered was on a day when he had to be in Illinois to give attention to his lawsuit. He has returned to Illinois for short visits three or four times.
[§ 7]
He testified that he moved to Oklahoma for the purpose of residing there, with the intention of making it his home and that he still intends to reside there. He testified that the family started out to see if they could find a new location in 1934. Upon cross‑examination it appeared that the funds for traveling and removal had been paid by the United Mine Workers or their representative; that he left his livestock on the Illinois farm, but no chickens; that he had about 60 chickens on his farm in Oklahoma; that, when he removed to Oklahoma, he rented his Illinois farm for a period of five years; that the tenant has recently defaulted upon the same.
[§ 8]
In the affidavits it appears that plaintiff’s house in Illinois was completely destroyed by fire shortly after he left. It was not insured and was a total loss. Witnesses for the defense testified that he had told them that he intended to move back to Illinois after he got his case settled; that he had told one witness in 1935 that he was going to Oklahoma but did not know for how long. Plaintiff denies that he told these witnesses that he expected to return to Illinois as soon as his litigation was completed.
[§ 9]
I think it is a fair conclusion from all the evidence that at the time plaintiff removed to Oklahoma one of his motives was to create diversity of citizenship so that he might maintain a suit in the United States courts. But that conclusion is not of itself decisive of the question presented. There remains the further question of whether there was at the time this suit was begun an intention upon his part to become a citizen of Oklahoma. One may change his citizenship for the purpose of enabling himself to maintain a suit in the federal court, but the change must be an actual legal change made with the intention of bringing about actual citizenship in the state to which this removal is made.
[§ 10]
Citizenship and domicile are substantially synonymous. Residency and inhabitance are too often confused with the terms and have not the same significance. Citizenship implies more than residence. It carries with it the idea of identification with the state and a participation in its functions. As a citizen, one sustains social, political, and moral obligation to the state and possesses social and political rights under the Constitution and laws thereof. Harding v. Standard Oil Co. et al. (C.C.) 182 F. 421; Baldwin v. Franks, 120 U.S. 678, 7 S. Ct. 763, 32 L.Ed. 766; Scott v. Sandford, 19 How. 393, 476, 15 L.Ed. 691.
[§ 11]
Accordingly it is commonly held that the exercise of suffrage by a citizen of the United States is conclusive evidence of his citizenship. Foster on Federal Practice, vol. 1 (6th Ed.) p. 159, and cases there cited. Voting in a party primary and membership in a local political party are strong evidence of citizenship. Gaddie v. Mann (C.C.) 147 F. 955. The registration of a man as a voter and the assessment of a poll tax against him are likewise strong evidence of domicile or citizenship, though not conclusive. In re Sedgwick (D.C.) 223 F. 655.
[§ 12]
Change of domicile arises when there is a change of abode with the absence of any present intention not to reside permanently or indefinitely in the new abode. This is the holding of the Supreme Court in Gilbert v. David, 235 U.S. 561, 35 S. Ct. 164, 167, 59 L.Ed. 360, where the court said: “As Judge Story puts it in his work on ‘Conflict of Laws’ (7th Ed.) § 46, page 41, ‘If a person has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of fixed present domicile, it is to be deemed his place of domicile, notwithstanding he may entertain a floating intention to return at some future period. The requisite animus is the present intention of permanent or indefinite residence in a given place or country, or, negatively expressed, the absence of any present intention of not residing there permanently or indefinitely.’ ”
[§ 13]
It will be observed that, if there is an intention to remain, even though it be for an indefinite time, but still with the intention of making the location a place of present domicile, this latter intention will control, even though the person entertains a floating intention to return at some indefinite future period. In this respect the court in Gilbert v. David, supra, further said: “Plaintiff may have had, and probably did have, some floating intention of returning to Michigan after the determination of certain litigation…. But, as we have seen, a floating intention of that kind was not enough to prevent the new place, under the circumstances shown, from becoming his domicile. It was his place of abode, which he had no present intention of changing; that is the essence of domicile.”
[§ 14]
In discussing a similar situation, in McHaney v. Cunningham (D.C.) 4 F.(2d) 725, 726, the court said: “He says he always intended at some indefinite future time, … to return to Arkansas to practice the legal profession; but, when he registered and voted in this state, he must have decided to give up that idea, for I cannot assume that he intended to commit a fraud upon its laws by claiming and exercising rights such as were given alone to a bona fide citizen. I take it, when these things were done, it was with the intention of identifying himself with the state in a political sense, which is the basis of citizenship.” See, also, Reckling v. McKinstry (C.C.) 185 F. 842; Philadelphia & R. Ry. Co. v. Skerman (C.C.A.) 247 F. 269; Collins v. City of Ashland (D.C.) 112 F. 175.
[§ 15]
In Dale v. Irwin, 78 Ill. 170 (1875), the court said, referring to a statutory provision: “The legislature, by this section, sought to establish a criterion of residence, by declaring that a permanent abode shall be such criterion. Now, what is ‘a permanent abode?’ Must it be held to be an abode which the party does not intend to abandon at any future time? This, it seems to us, would be a definition too stringent for a country whose people and characteristics are ever on a change. No man in active life, in this State, can say, wherever he may be placed, this is and ever shall be my permanent abode. It would be safe to say a permanent abode, in the sense of the statute, means nothing more than a domicile, a home, which the party is at liberty to leave, as interest or whim may dictate, but without any present intention to change it.”
[§ 16]
In Kreitz v. Behrensmeyer, 125 Ill. 141, 195, 17 N.E. 232, 8 Am.St.Rep. 349 (1888), the Court said: “A man may acquire a domicile … if he be personally present in a place and select that as his home, even though he does not design to remain there always, but designs at the end of some time to remove and acquire another.”
[§ 17]
The statement of the Restatement of the Law, Conflict of Laws, § 15, Domicil of Choice, is as follows:
“(1) A domicil of choice is a domicil acquired, through the exercise of his own will, by a person who is legally capable of changing his domicil.
[§ 18]
“(2) To acquire a domicil of choice, a person must establish a dwelling‑place with the intention of making it his home.
[§ 19]
“(3) The fact of physical presence at a dwelling‑place and the intention to make it a home must concur; if they do so, even for a moment, the change of domicil takes place.”
[§ 20]
In Holt v. Hendee, 248 Ill. 288, 93 N.E. 749, 752, 21 Ann.Cas. 202, the court said: “The intention is not necessarily determined from the statements or declarations of the party but may be inferred from the surrounding circumstances, which may entirely disprove such statements or declarations. On the question of domicile less weight will be given to the party’s declaration than to his acts.”
[§ 21]
Though it must be confessed that the question is far from free of doubt, I conclude that, under the facts as they appear in the record, despite the fact that one of plaintiff’s motives was the establishment of a citizenship so as to create jurisdiction in the federal court, there was at the time of his removal a fixed intention to become a citizen of the state of Oklahoma. He testified that he worked on a community project in that state without compensation. It appears that he registered as a voter; he thus became a participant in the political activities of the state. Such action is inconsistent with any conclusion other than that of citizenship, and, in view of his sworn testimony that it was his intention to reside in Oklahoma and to continue to do so, it follows that the elements constituting the status of citizenship existed.
[§ 22]
True, there is some evidence that he had said he might return to Illinois as soon as his case was settled. The language of the cases above indicates that such a floating intention is insufficient to bar citizenship, where active participation in the obligations and enjoyment of the rights of citizenship exist.
[§ 23]
Defendants contend that the fact that the cost of plaintiff’s transportation and maintenance were paid by the United Mine Workers is of decisive weight upon this issue. I cannot agree. It seems to me immaterial what motives may have inspired the United Mine Workers to help him, and the court is not now concerned with their alleged charitable and philanthropic practices.
[§ 24]
I conclude, therefore, that plaintiff was at the time of the commencement of the suit, and is now, a citizen of the state of Oklahoma. The findings herein embraced will be adopted as findings of fact of the court and entered as such. It is ordered that the motion to dismiss because of lack of diversity of citizenship be, and the same is hereby, denied. An exception is allowed to defendants.
[§ 25]
If possible, in view of the expense involved in a trial upon the merits, it is desirable that a review of this decision be had before such trial.
__________
After writing out your statement of the holding in Baker v. Keck, you will be ready to do the computer aided exercise, CALI CIV 05: Analysis of a Diversity Case.
[i]International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L.Ed. 95 (1945). (Return to text)
- Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law 432 (Rev. ed. 1974). ↵
- Karl Llewellyn describes the process of extending and narrowing precedent and advises students as follows:
Karl N. Llewellyn, The Bramble Bush 69 (1951). ↵Applying this two‑faced doctrine of precedent to your work in a case class you get, it seems to me, some such result as this: You read each case from the angle of its maximum value as a precedent, at least from the angle of its maximum value as a precedent of the first water. You will recall that I recommended taking down the ratio decidendi in substantially the court's own words. You see now what I had in mind. Contrariwise, you will also read each case for its minimum value as a precedent, to set against the maximum. In doing this you have your eyes out for the narrow issue in the case, the narrower the better. The first question is, how much can this case fairly be made to stand for by a later court to whom the precedent is welcome? You may well add—though this will be slightly flawed authority—the dicta which appear to have been well considered. The second question is, how much is there in this case that cannot be got around, even by a later court that wishes to avoid it? - The determination of similarity or difference is the function of each judge. Where caselaw is considered and there is no statute, he is not bound by the statement of the rule of law made by the prior judge even in that controlling case. The statement is mere dictum, and this means that the judge in the present case may find irrelevant the existence or absence of facts which prior judges find important. Edward H. Levi, An Introduction to Legal Reasoning 2-3 (1964). ↵
- See Arthur L. Goodhart, Determining the Ratio Decidendi of a Case, 40 Yale L.J. 161, 182 (1930). ↵
- "[T]he distinction [is] between the ratio decidendi, the court's own version of the rule of the case, and the true rule of the case, to wit, what it will be made to stand for by another later court." Karl N. Llewellyn, The Bramble Bush 52 (1951). ↵
- Cf. Henry Friendly, In Praise of Erie‑and of the New Federal Common Law, 39 N.Y.U.L.Rev. 383, 385–86 (1964) ("A court's stated and, on its view, necessary basis for deciding does not become dictum because a critic would have decided on another basis"). ↵
- Literal adherence to the necessity principle would lead to the position espoused by Professor Edward Levi in note 3, supra, that all statements of rules of law in an opinion are dicta. ↵
- Under this holding dictum distinction, by designating a statement of a rule of law as holding, one is merely suggesting that it is entitled to the weight accorded a proposition that was probably argued before the court and given careful consideration by the court. Designation as holding does not mean that all of the particulars of the stated rule will be followed as binding precedent. Even lower courts, which lack the power to overrule the prior decision, may nevertheless narrow it or distinguish it. The broader the holding, the more likely this narrowing will take place. Whether a statement is holding or dictum is only one of many considerations that subsequent courts will take into account in determining what precedential message to draw from it. ↵
