Super-Dicta - Penn Law Review

Super-Dicta - Penn Law Review

A weird thing happens when a conscientious, rational judge lacks certainty and has the humility to know it: she will often decide cases for reasons that differ from the reasons in her opinions. To illustrate, suppose she thinks it’s 50/50 whether Defendant’s copying infringed or was fair use. She could rationally flip a coin. But if she does, and she finds for Defendant, it will not be because of fair use. Rather, it will be because she thought …