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(I realize I could post this at Law.SE, but the response rate there is quite hit or miss.)

What does "in dicta" mean in legal writing?

I checked the glossary of my paralegal textbook (by Statsky), and it says

(1) A statement or observation made by a judge in an opinion that is not essential to resolve the issues before the court; comments that go beyond the facts before the court.
(2) An authoritative, formal statement or announcement.

I'm not sure which one I should use. Those two meanings seem pretty different from each other.

Here are two examples of how I see the term being used:

  1. While courts have routinely upheld defendants’ convictions in the face of these objections,10 courts have also sympathized with these arguments, noting in dicta that the term “victim” is best avoided.
    https://law.lclark.edu/live/files/21940-use-of-the-term-victim-in-crim-proc11th-edpdf

  2. There's a Nevada Supreme Court case that holds, in dicta, that you still need an annulment to get out of your bigamous marriage. Which Jeffrey and the trial court seize upon to hold that, yep, the parties were not in fact married -- we're talking about Jeffrey and Patricia at this point -- because Patricia never dissolved anything with Henry before marrying Jeffrey.

    But the California Court of Appeal reverses. Holding that, no, that was just dicta, and in a case involving a putative spouse
    http://calapp.blogspot.com/2011/11/in-re-marriage-of-seaton-cal-ct-app-nov.html

Should I think of it as "in passing" and dicta by itself as meaning "commentary"?

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The short answer is that only a good understanding of the context can enable one to determine whether dictum/dicta is used in the first or in the second sense in a particular text. In legal contexts, the first sense is found more frequently than the second, and this is the sense that the word has in both quotations that appear in the question; in nonlegal ones, the first sense is almost never used, unless by way of an allusion to the law.

It is understandable that one would wonder why the word is used in such very different ways. The explanation is that the first of the two dictionary definitions quoted in the question is, strictly speaking, a definition of the technical legal term obiter dicta, which is, in English texts, often shortened to dicta. The second definition is a definition of dictum/dicta by itself (i.e. when it is not a short version of obiter dicta), which is not a technical term with a very precise meaning.

It should be noted that whether something is an obiter dictum (a dictum in the first sense) has significant legal implications: dicta, in that sense, are not a binding legal authority, even though they appear within a judicial opinion. Whether something is labelled as a dictum in the second sense, generally, has no consequences of comparable significance.

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  • So, if I see it in a published decision, the most likely meaning of in dicta is ...? Is there a synonymous word or phrase I could have in mind while I'm getting used to this term? Maybe as a side note? Commented Dec 2, 2019 at 7:43
  • In dicta in a legal context is most likely a short version of in obiter dicta, which in turn is a technical term with a very long history; lawyers would be reluctant to substitute another term for it, as none can capture all its implications. As a side note is as good as any phrase of everyday English can be in approximating its meaning.
    – jsw29
    Commented Dec 4, 2019 at 15:24
  • Thanks. So when a judge writes a decision and says that something is in dicta, that means that remark isn't directly relevant to the facts of the specific case, but s/he wants to make sort of a footnote comment even though it's not the turning point of that case -- ? Commented Dec 5, 2019 at 3:47
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    One of the things that make it difficult to read judicial opinions is that judges normally don't label their own words as obiter dicta. It is those (lawyers and other judges) who analyse their opinions later that have to discern whether something in the earlier opinion played a role in the reasoning that led to the outcome of the earlier case, or not. If the latter, it will be characterised as 'in (obiter) dicta', with the consequence that it is not binding for later cases, but it may still be illuminating in some way.
    – jsw29
    Commented Dec 5, 2019 at 16:07

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