Vol. 33 No. 06 (August 2023) pp. 83-88

THE INTRICACIES OF DICTA AND DISSENT, by Neil Duxbury. Cambridge: Cambridge University Press, 2021. pp. 260. Cloth $115.00. ISBN 9781108841498. Paper: $39.99. ISBN 9781108794886.

Reviewed by Chris Monaghan., School of Law, University of Worcester, UK. Email:

Neil Duxbury in The Intricacies of Dicta and Dissent offers a thought-provoking account of the subject matter through the form of two extensive essays. In his first essay on Dicta, Duxbury observes that “[l]awyers and judges do not always agree – indeed are not always sure – what is and what is not obiter in a judgment” (p. 5). He is clear that within the common law, the distinction between ratio decidendi (the binding reasons for the decision) and obiter dicta (which is not binding) is that it “serves as a brake against judges formulating common-law rules ultra vires” (p. 8). In the second part of his essay on Dicta, Duxbury considers the importance of stare decisis in the emergence of obiter dicta, but is clear that these concepts did not emerge in “tandem” (p. 15). He views the emergence of obiter dicta as “[emerging] not with the acceptance that decisions by courts should bind as precedents. It emerges, rather, once making decisions becomes a recognizable function of the judiciary” (p. 18). In part three, “‘Obiter’ As Legal Entity”, Duxbury points to sixteenth-century lawyers being instructed that when relying on an earlier case as a precedent, that they had to distinguish between “points of law” and “bye-matters” (p. 19). It was becoming clear in the sixteenth and seventeenth centuries that obiter dicta was not considered to be part of the law, although it could have some use in the absence of ratio (pp. 19-21). Nonetheless, Duxbury is clear that some judges still believed obiter had some value, and whilst from the eighteenth century onwards, “[a] simple message is repeated from one legal generation to the next: obiter opinions are not binding on a court. But this is hardly the whole picture” (p. 24). Indeed obiter is both “slippery” and “misleading as a concept” and by the end of the twentieth century, English judges “are now and again to be found according to particular dicta a more elevated status” than earlier judges (pp. 25-26).

Duxbury’s consideration of “Dicta depicted” is interesting and he makes sound observations, such as how a judge might, depending on the context, refer to obiter as a secondary source, and then subsequently disregard it as being unimportant (pp. 27-28). So is obiter just a by the way comment? Duxbury notes that “ [a]lthough the standard description of obiter dicta is that they are comments made in passing, English judges and lawyers, while accepting this description, depict them in other ways besides” (p. 28). Duxbury’s description of how, depending on the circumstances, dicta is depicted by lawyers and judges is useful to the reader, as it does much to demonstrate the ambiguity around dicta. This discussion is continued in part five of the essay. It is interesting to read Duxbury’s assessment that judges, whilst being the ones to produce and interpret dicta, have often been prompted to do so by the lawyers involved in the proceedings. Duxbury notes the modern reluctance of judges to be drawn into making obiter dicta (pp. 33-34). The contextual value of dicta is emphasized by Duxbury, as this can be relevant in “the scene setting” and explaining the decision, or to pass comment on the conduct of the parties (pp. 35-36). Duxbury is skeptical that dicta can be praised as showing how the law might develop in the future, as dicta [covering particular circumstances or conduct] “even where they do exist, will not necessarily hold sway in future courts (p. 42). Duxbury’s analysis of the benefits and disbenefits of dicta is balanced. The next part of the essay on “Engines of Confusion” continues the discussion and looks at whilst dicta might be relied upon by a later court, it can never be as an authority. Duxbury notes the judicial frustration in the twentieth century of counsel relying on obiter in preference to the available ratio (p. 51). More worryingly for sitting judges, was the concern that they might regret earlier dicta and feel constrained by their previous comments.

Duxbury observes that regarding obiter, “[j]udicial self-censorship is a decidedly limited strategy”, given that the common law judges would have difficulty in refraining from engaging in obiter (p. 60). He also observed that if one was to engage in treating anything unnecessary to the outcome as obiter, then


Vol. 33 No. 06 (August 2023) pp. 79-82

PERSUADING THE SUPREME COURT: THE SIGNIFICANCE OF BRIEFS IN JUDICIAL DECISION-MAKING, by Morgan L.W. Hazelton and Rachael K. Hinkle. University Press of Kansas, 2022. pp. 296. Paperback $32.95. ISBN: 9780700633630. Ebook $24.99. ISBN: 9780700633647.

Reviewed by Jessica A. Schoenherr. University of South Carolina. Email:

Given their genuine love for the language of the law and their own high standards for writing in that language, Supreme Court justices are understandably frustrated by legal documents that lack readability and flair. In interviews with news outlets, law school deans, and legal scribes, the justices consistently offer attorneys the same advice: well-reasoned, well-written, and short briefs win cases and poorly written briefs do not (see, e.g., Garner and Roberts, 2010). The justices pay attention to the arguments that attorneys make (Johnson, Wahlbeck, and Spriggs, 2006), and they hate wasting their time parsing poorly written arguments (Scalia and Garner, 2008). Consequently, good arguers become repeat players who dominate the Court’s docket (Biskupic, Roberts, and Shiffman, 2014; McGuire, 1993), and the attorneys who fail to present effective arguments lose credibility and never show up again.

But what are repeat players putting in their briefs? What makes their arguments better? And do those better arguments increase the probability of winning in a world where ideology explains so much of judicial behavior? These are the questions Morgan Hazelton and Rachael Hinkle answer in their fantastic new book, Persuading the Supreme Court: The Significance of Briefs in Judicial Decision-Making. Over the course of six chapters, the authors show that experienced attorneys use briefs to present information the justices need in a manner that limits cognitive burden and thus makes it easier for the justices to decide the case. Building on past work (see Hazelton, Hinkle, and Spriggs, 2019), Hazelton and Hinkle say that good arguments emphasize points that appear across several briefs to ensure those points land. Experienced and well-resourced attorneys write longer briefs but those briefs tend to be easier to read. They talk about policy implications and skillfully coordinate their arguments across merits and amicus briefs. And, importantly, this attention to detail matters, as the justices are more likely to side with these longer, easy-to-read, and policy-focused arguments and incorporate them into their opinions.

The centerpiece of this book is the extensive and varied data collection, which the authors unveil in Chapter 1. Hazelton and Hinkle have data on every merits and amicus brief submitted to the Court in orally-argued cases from 1984 to 2015, which means they examine more than 26,000 briefs. They analyze the text of these briefs using several different measures, including different word and citation counts, the amount of policy-centered content in each brief, and the overlap of arguments across briefs, which the authors measure using cosine similarity (see also Hinkle 2015). Given their long period of analysis, Hazelton and Hinkle show over-time shifts, like the fact that briefs universally got more difficult to read when the Roberts Court began in 2005 (p. 33), as well as overall trends. The authors also collected data on every attorney whose name appeared on a brief during this period, including each filer’s past briefing experience and their service as clerks or members of the Office of the Solicitor General. As though this wealth of empirical data were not enough, Hazelton and Hinkle conducted interviews with attorneys and former clerks, and this trove of content bolsters their hypotheses and findings.

In Chapter 2, Hazelton and Hinkle examine briefs produced


Vol. 33 No. 06 (August 2023) pp. 75-78

CITY, STATE: CONSTITUTIONALISM AND THE MEGACITY, by Ran Hirschl. New York: Oxford University Press, 2020. pp. 272. Cloth $39.95. ISBN: 978-0-190-92277-1.

Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email:

Ran Hirschl has written an important and provocative book that touches upon a core question of constitutional law: what happens when constitutional provisions become so antiquated and ossified that they must be changed but there is no mechanism in place to make such changes? He argues that constitutions across the world must be modernized to address the increasingly central role of cities and megacities in global politics. As the world’s population continues to grow, and as more of that population lives in or moves to increasingly dense urban areas, cities and megacities are becoming more central to the conduct of the world’s politics. Yet, they are not empowered to address the challenges posed by such urbanization and the global challenges that disproportionately affect their populations.

Contemporary constitutional institutions and imagination are captive of “constitutional structures, doctrines, perceptions, and expectations that were conceived with the modern nation-state and germinated through the age of revolution, a historical process that saw the subjugation of the sovereign city” (p. 9). Hirschl argues that states have, historically, been driven by an “existential fear of large cities” (p. 35). As he notes, “megacities are densely populated and are home to critical masses of people” (p. 35); they facilitate close human interaction, and the rapid spread of ideas. This creates “a potentially explosive combination of people, ideas, and spatial conditions that, from a statist point of view, is better kept in check” (pp. 35-36). Accordingly, cities across the globe tend to be insufficiently empowered to exercise the autonomous authority that would be appropriate to the roles cities now play in setting and/or managing much of the world’s political agenda.

Drawing from examples across the globe, Hirschl demonstrates the almost universal pattern in which cities have virtually no independent constitutional authority and that they are politically underrepresented within their nations. He sometimes casts this in terms of a global urban-rural rift, such as “localist resentments” (p. 49), or “anti-globalist sentiments” (pp. 42-49). As well, he suggests that this tension is exacerbated because cities tend to be characterized by progressive, destabilizing ideas and energy that threaten the more populist, rural parts of their nations. As a result, nations and states maintain a catalog of mechanisms ranging from malapportionment, at the expense of urban areas, to a refusal that will modernize constitutional architecture to prevent cities from marshaling the fiscal and legal resources appropriate and necessary to address the needs of their populations.

Exceptional cases, such as Seoul, Gwangju, or Hong Kong, demonstrate how well cities can address challenges posed by housing shortages, immigration, etc. if they are granted the resources to do so. In contrast, many cities across the global north


Vol. 33, No. 06 (August 2023) pp. 69-74.

SOCIAL MEDIA, FREEDOM OF SPEECH AND THE FUTURE OF OUR DEMOCRACY, Lee Bollinger and Geoffrey Stone (eds.). Oxford: Oxford University Press, 2022. pp. 404. Cloth $99.99. ISBN-13: 978-0197621080. Paper $24.95. ISBN-13: ‎978-0197621097.

Reviewed by Cary Federman, Department of Justice Studies. Email:

This is the fifth collaboration by Lee Bollinger, the president of Columbia University and a law professor, and Geoffrey Stone, a professor of law at the University of Chicago Law School. Including this volume, they have edited three books on speech, one on the press and national security, and co-authored a book on affirmative action. This one is the timeliest, as it concerns the freedom of speech, the internet, and democracy.

The purpose of the collection is to explore the main issue confronting the freedom of speech today: “what to do about ‘bad’ speech on the internet?” (p. xv). According to the various contributors, “bad speech” includes: “abusive speech,” “extreme speech,” “genocidal speech,” “harmful speech,” “hate speech,” and “hateful speech.”

The book is divided into four parts. Prior to Part One, Bollinger and Stone write an “Opening Statement.” Four lawyers from Debevoise and Plimpton follow with an essay on the regulation of harmful speech. Part One provides an overview of the problem of the internet and speech. Part Two addresses Section 230 of the Communications Decency Act, the cornerstone of the problem of the internet, speech, and democracy. Part Three looks at the problem of algorithms and content moderation. Lastly, Part Four addresses possible reforms. Prior to the editors’ conclusion is an essay by “the Commission,” a group convened by the editors and tasked with making “a set of specific recommendations about what we should and should not do” (p. xviii) regarding the internet, speech, and democracy. (The Commission members are: Katherine Adams, of Apple; Jelani Cobb, of the New Yorker, Martin Baron, formerly the Executive Editor of the Washington Post; Russ Feingold, the former Democratic Senator from Wisconsin and the current President of the American Constitution Society; Lee Bollinger; Christina Paxson, the president of Brown University; Hillary Clinton; and Geoffrey Stone.)

Most of the contributors make the case for internet speech regulation. But what’s missing from this collection is a clear explanation of how and why internet law developed toward libertarianism, and what effect that has had on democracy. It is obvious that there is a new orthodoxy emerging regarding speech and democracy. The old orthodoxy comes from Oliver Wendell Holmes’s dissent in Abrams v. U.S. (1919). Holmes claimed that the marketplace of ideas must allow for all manner of speech, on the idea that the truth will win out eventually. In that spirit, the century that followed legalized pornography, obscenity, and seditious speech. It effectively decriminalized libel of public officials and figures. That century’s jurisprudence was indifferent (if not, at times, hostile) to the claims of local communities that did not want pornography or obscenity in their neighborhoods or schools, or to have a communist for a High School teacher. A half century into the free speech century, the Warren Court told us that a latitudinarian understanding of speech was beneficial for democracy, even if it prevented the deliberate sense of the community from restricting speech to preserve local democracy. Now, however, the contributors to this collection tell us that the “most powerful communications technology magnifies…harms exponentially beyond anything we have encountered before” (p. xv). But no essay in this collection explains how this came about, or why this seemingly new situation requires accommodating a hate speech exception into First Amendment law.

Larry Kramer provides a basic overview on the need to rethink speech, as do the editors, but Kramer, like several contributors, looks to the European Union (EU)