There has been a fair amount of attention given to the opinion by the Delaware Supreme Court in Gatz v. Auriga Capital, CA 4390, Del. S. Ct., Nov. 7, 2012. The opinion contained some sharp language criticizing the use of dicta in the Chancery Court opinion. Gordon Smith discussed the case at The Conglomerate; likewise Steve Bainbridge did so in his blog. Steve called the Supreme Court opinion a "smackdown" and noted that it entailed the "airing of dirty laundry that doesn't make the Supreme Court look good."
The Supreme Court took issue with the trial court's decision to use dicta to opine on legal issues not before the court. As the Supreme Court stated:
the court’s excursus on this issue strayed beyond the proper purview and function of a judicial opinion. “Delaware law requires that a justiciable controversy exist before a court can adjudicate properly a dispute brought before it.” We remind Delaware judges that the obligation to write judicial opinions on the issues presented is not a license to use those opinions as a platform from which to propagate their individual world views on issues not presented. A judge’s duty is to resolve the issues that the parties present in a clear and concise manner.
The admonition was not designed to prevent judges from speaking out about legal issues that might come before them. Judges could do so but only if in speeches, law review articles, or other non-judicial forums. Again, in the words of the Supreme Court:
To the extent Delaware judges wish to stray beyond those issues and, without making any definitive pronouncements, ruminate on what the proper direction of Delaware law should be, there are appropriate platforms, such as law review articles, the classroom, continuing legal education presentations, and keynote speeches.
The odd thing about the criticism is that the practice of using dicta to speak on issues not before the court has been encouraged by the Chief Justice. Indeed, he co-authored an article that amounted to an apology for the practice, something labeled the "Guidance Function." As the article stated:
the Delaware judges have frequently crafted dicta to give valuable guidance to deal lawyers on unanswered questions. The Delaware courts recognize the need to wait for a live controversy to resolve an issue definitively, but fortunately they also recognize that this does not mean that they cannot, or should not, use the attention paid to a published opinion to offer guidance on uncertain but vital areas of corporate law.
The Gatz opinion even cited the article despite the criticims of the practice.
Challenging the use of dicta while authorizing similar views in speeches and articles is not an easy distinction to make. First, all judges occasionally use dicta. Somehow a blanket prohibition on the practice seems impractical.
Second, Delaware courts regularly cite articles written by their bretheren as authority. See Keyser v. Curtis, 2012 Del. Ch. LEXIS 175 n. 129 (Del. Ch. July 31, 2012) ("A similar application of the entire fairness doctrine has been advocated by a member of this Court, although not in a judicial opinion. See Leo E. Strine, Jr., et al, Loyalty's Core Demand: The Defining Role of Good Faith in Corporation Law"). Thus, articles and dicta can have essentially the same legal effect.
The Supreme Court opinion, therefore, is far more confusing than clarifying in its instructions to lower courts.