In their latest column for the Daily Journal, Manatt Appellate Partner Benjamin Shatz and Associate Benjamin Strauss examined the Ninth Circuit’s four-year debate on what constitutes a holding and the resulting shift from the narrow “necessity model” to the broad “adjudicative model” of precedent.
The Ninth Circuit treats any issues resolved through reasoned consideration in a published opinion—regardless of whether doing so is necessary in some strict logical sense—law of the circuit. In their article, Shatz and Strauss explore the research by Professor Charles Tyler, which includes an interesting look behind the scenes at how the Ninth Circuit came to adopt this exceptional position.
In light of the Ninth Circuit’s broad approach to precedent, Shatz and Strauss conclude that “holding-versus-dicta arguments may be best left out of your next Ninth Circuit brief.”
Daily Journal subscribers can read the full article here.