Happy Friday, and welcome to another roundup of the week’s news about the judiciary. This week, we take a look at the 9th Circuit’s unusual and unique “binding dicta” rule, which has raised eyebrows from some judges recently. I spoke with law professor Charles Tyler, who wrote a paper on the topic in 2020. 

As always, please reach out to me at [email protected] with any tips or feedback and follow me on X at @AvalonZoppo. 
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Binding Dicta?

Earlier this year, Ninth Circuit Judge Lawrence VanDyke gave a talk at Berkeley Law School about one of that court’s “stranger and more controversial rules,” as the event summary described it.

That rule would be its so-called binding dicta rule, which allows panels to treat “well-reasoned” dicta—judges’ opinions on legal issues that don’t arise in or resolve a case—as precedential in future cases. It hasn’t been adopted by other circuit courts.

And in a 2021 dissent, VanDyke warned that the rule has the potential to be abused, and he’s not the only Ninth Circuit judge to recently raise alarm over it.

In September, the full court held that judges can’t dismiss False Claims Act actions based on the law’s first-to-file rule on jurisdictional grounds, overturning its precedent. Judge Danielle Forrest, joined by Judge Patrick Bumatay, said the court’s previous holding was wrongly decided based on dicta that had been viewed as binding–-and they urged their colleagues to discard the rule.

Charles Tyler, a George Washington University law professor and former Ninth Circuit clerk, delved into the history of the rule in a University of Chicago Law Review article from 2020. You can find the paper here.

“I was a law clerk on the Ninth Circuit, and there were disputes about this [rule] internally. That this was a thing in the Ninth Circuit itself struck me as very odd. And then also that there was very spirited disagreement that persisted on the Ninth Circuit, even by the time I was clerking, which was 2015 to 2016,” Tyler said of how he became interested in the topic.

Here’s what he found from his research.

Where the rule comes from >> The idea behind the rule was first raised in the 2001 decision U.S. v. Johnson, where a six-judge majority sent a Fourth Amendment case back to the district court to answer if an officer’s search of a shed occurred in the curtilage of the defendant’s home. Six judges wrote a separate majority opinion to say that the Ninth Circuit must review that curtilage question de novo. But that de novo question wasn’t necessary to resolve the case, and was viewed as merely dicta by other members.

The full court then fully adopted the rule in a 2005 en banc decision, Barapind v. Enomoto, which dealt with an Irish Republican Army member challenging extradition back to the United Kingdom.

In anonymous interviews with 16 judges between December 2018 and January 2019, Tyler learned that the rule is still confusing to some newcomers at the court. One judge told him that when they first joined the court, a law clerk had to inform them of the rule. Others said they made sure to inform visiting judges about the rule.

Reasons for & against it >> Judges who supported the rule at the time said it would promote consistency in applying the court’s decisions, and worried that lawyers often had to guess whether aspects of an opinion were necessary to the holding and therefore binding or not.

Supporters also worried that judges could merely label a prior statement of law as “dicta” if they didn’t want to apply in a case, said Tyler, who spoke to Ninth Circuit judges who were on the court at the time for his paper.

Opponents, who included Judges A. Wallace Tashima and Andrew Kleinfeld, argued that the rule isn’t in line with what the U.S. Supreme Court or sister circuits do. And it may be unconstitutional to assign precedential value to dicta, since Article III judges only have the power to decide “cases and controversies,” the opposing judges argued.

Does the rule work?>> Tyler looked into whether the rule has achieved its intended purpose: greater adherence to earlier Ninth Circuit decisions. He reviewed and coded all cases where there was a discussion of the distinction between holding and dictum, zeroing in on 408 cases from eight years before Johnson and eight years after Barapind.

He found the frequency of cases where the court adopted the proposition asserted in the earlier case increased significantly, starting in 2002 after Johnson first introduced the binding dicta rule.

Tyler said he doesn’t view the rule as inherently benefiting judges appointed by a president of one party over the other.

But since the Ninth Circuit has been regarded as liberal leaning for decades, Tyler said it’s possible the rule at the moment benefits Democratic-appointed and “maximalist” judges, because it gives them greater influence over the direction of the law in the circuit.

“If you have a more expansive notion about what's binding… that gives you more power to influence and shape the law, but it also means that you're more bound when you're applying earlier statements,” Tyler said

“Given that the Ninth Circuit has been majority liberal for a while now… then [the rule] probably does benefit liberals because it means more decisions of the Ninth Circuit over the last 25 years have been written by majority liberal panels," Tyler added. "And the Barapind rule has the effect of saying to the newcomers from the Trump administration that they are to continue to follow those earlier decisions to a greater extent than they otherwise would have to.”