Dicta, Schmicta: Theory Versus Practice in Lower Court Decision Making

The distinction between dictum and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dictum. Specifically, federal courts of appeals meaningfully invoke the distinction in about 1 in 4000 cases; federal district courts in about 1 in 2000 cases; and state courts in about 1 in 4000 cases. In this Essay, we report these findings, describe our coding system, and offer a preliminary assessment of the implications of our study. Most notably, our findings raise questions about the vitality of traditional common law judging. Rather than play a significant role in the development of legal principles by treating extraneous statements in higher court rulings as nonbinding dicta, lower courts cede much of their common law power to higher courts. Higher courts can issue sweeping rulings that address questions not immediately before them, knowing that those statements will not be treated as dicta. In highlighting this dynamic between lower and higher courts, our study also casts light on the ongoing debate over judicial minimalism. The ability of courts to pursue the minimalist project of issuing narrow, fact-specific rulings is undercut by a regime in which lower courts look to higher courts for the enunciation of legal principles. Finally, our study is highly salient to the practice of law. Lawyers, although frequently referencing the holding-dictum distinction in legal briefs, have little reason to think that a lower court will ever invoke the distinction to rule against higher court dicta

Developing business developing careers : how and why employers are supporting the career development of their employees

This publication sets out the case for employers to engage with the idea of career development

The role of skills from worklessness to sustainable employment with progression

This study is shaped by the recognition that while there has been a great deal of policy development around the transition from unemployment and inactivity to employment over the last decade, policy has not been sufficiently informed about how best to nurture sustainable employment for those at risk of labour market exclusion. The review focused on evidence from 2005: it provides a review of data, UK and international literature and, incorporates findings from four international case studies ( Australia, Germany, Denmark and the United States. The report provides an overview of the economic context for low pay and low skilled work and highlights the need for a continuing commitment to promoting opportunities in the labour market as a means of progression and alleviating poverty and encouraging social mobility. The report argues that there is an inextricable link between skills and ‘better jobs’. The authors conclude that a long-term view is required to decide how best to support someone at the point of worklessness: to address employability barriers in the short-term; and prepare the individual to retain, and progress in, employment. The concept of career is explored as a framework for progression: a combination of career guidance, a career / personal development plan and career management skills are identified as tools to raise aspiration and enable individual’s to take action once they are in work to support their own progression. Thinking about the workplace, the report reviews the evidence on the role of job design, line management and progression pathways in facilitating workplace learning as a route to progression

The Vanishing Common Law Judge

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in judges’ practices. In the first fifty years included in our study, district court judges were not notably deferential to either their federal court of appeals or the U.S. Supreme Court. District court judges regularly assessed the relevance and scope of precedents from those higher courts and asserted their prerogative to disregard many of them. Since then, judges have become far more likely to treat a given higher court precedent as dispositive. In so doing, lower courts have embraced a hierarchical view of judicial authority at odds with the common law style of judging. The causes of this shift are multifold and likely permanent; we discuss several of them, including dramatic changes in legal research, the proliferation of law clerks throughout the legal system, the growing docket of lower court judges, the growth of the administrative state, and the Supreme Court’s increasing embrace of judicial hierarchy

Tackling unemployment, supporting business and developing careers

The issue of unemployment remains high on the political agenda. However, there is evidence that employers can be wary of employing people who are out of work. Employer practice is key, both in terms of providing employment opportunities to job seekers, and in providing space for low-skilled people to develop their skills and cement their attachment to the labour market. This report discusses the role of career guidance in mediating between job seekers and employers to allow both to achieve their objectives.The issue of unemployment remains high on the political agenda. However, there is evidence that employers can be wary of employing people who are out of work. Employer practice is key, both in terms of providing employment opportunities to job seekers, and in providing space for low-skilled people to develop their skills and cement their attachment to the labour market. This report discusses the role of career guidance in mediating between job seekers and employers to allow both to achieve their objectives

The role of skills: from worklessness to sustainable employment with progression : UK Commission for Employment and Skills Evidence Report no. 38

This study is shaped by the recognition that while there has been a great deal of policy development around the transition from unemployment and inactivity to employment over the last decade, policy can still be informed about how best to nurture sustainable employment for those at risk of labour market exclusion. There remain challenges associated with, for example, the cost-effectiveness of intervention, the „low pay no pay‟ cycle and access to training. As a consequence, the opportunities for sustainable progression, upward social mobility and alleviating poverty remain unrealised for many workers in lower paid occupations. The methodology underpinning this study is predominantly based on a literature search and review of the research and evidence base post 2005. This is supplemented with the development of four international case studies (Australia, Denmark, Germany, United States contained in a separate annex) and an e-consultation with country experts