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Trial by Combat and the New Deal, 47 Harvard Law Review 913 (1934)


Anglo-American judicial theory constantly emphasizes that only the particular and narrow issues brought before courts by contesting parties may be the basis of judge-made law. Judicial language not necessary for the decision of those narrow issues is called by the uncomplimentary name of dicta. The impression is given that legal rules and principles based on mere dicta are of doubtful validity. A court is not supposed to regulate situations merely because regulation is badly needed. A court should never approve, disapprove, or clarify an entire set of rules governing a general business situation. A court should never answer questions. The limits of their power in this direction is to produce parables out of which further arguments may be spun.

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