It is increasingly common today for courts to render opinions as they did in an earlier common law era, that is, to answer the principally litigated issue first, then to give answers to incidental questions that are apt to arise thereafter. Admittedly these incidental answers are dicta only, but they are substantially authoritative and serve useful purposes. By employing such a technique, appellate courts can do a better job than legislatures usually have done in promulgating comparative negligence rules. With respect to matters upon which the legislature has never taken any position, legislative inaction constitutes no affirmative assertion of legislative intent to leave the law as it has always been. When the socio-legal need for a change in judge-made law is evident, when the courts which made the law in the first place can do as good a job and possibly a better one than the legislature is likely to do in updating it, and when the legislature gives no sign of acting on the matter, it seems that judicial action is fully justified. In such a situation, judicial inertia induced by reluctance to take on a difficult task is no virtue.
Robert A. Leflar,
21 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol21/iss6/5