"Three generations of imbeciles are enough."l These words of Justice Oliver Wendell Holmes are some of the most infamous and evocative penned from behind the bench of the Supreme Court of the United States. Beyond the feelings of revulsion reading the opinion causes, the facts that Justice Holmes declared to be true and the dicta he used to bolster the Court's holding in Buck v. Bell helped to create the social world we live in today and continue to affect it. Though previous scholarship has recognized the importance of acknowledging the performative power of words in the legal field, little of this scholarship has focused on judicial opinions. The existing studies of performativity and judicial opinions have primarily focused on rulings or the process of overruling and holdings. This Note uses the theory of performativity to better understand the precedential power of judicial opinions beyond their holdings. Acknowledging this power encourages judges to take greater responsibility for the parts of their opinions that do not directly state the law and undertake a more thoughtful writing process.
How To (Not) Do Things with Judicial Opinions: Minding the Performative Power of Facts and Dicta,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol94/iss4/6