At SCOTUSblog, Haley Proctor: Text, history, and party presentation. From the introduction:
As has been observed by Rory Little at SCOTUSblog, the party presentation principle is on the rise at the Supreme Court. The principle stands for the simple idea that the parties control their case – what claims they bring, what defenses they raise, what arguments they make, what evidence they present – and that these choices potentially limit how courts may decide the case. The party presentation principle presents a puzzle for courts in cases that involve matters of broader public interest, like gun rights. In this month’s column, I will introduce the principle and then explore its implications for Second Amendment litigation and beyond.
The party presentation puzzle
Courts are not closed systems whose only inputs are those the parties put in them. Judges know the law. Many enjoyed storied careers as litigators before ascending to the bench. They have law clerks. And law libraries (digital or otherwise). Jurors read the news. They live in the community where the crime occurred or the dispute arose. They generally know something about the events of the case before them: they have seen how well a full moon can illuminate a scene, have felt their brakes seize up on an icy road, have witnessed neighborhood knife fights from their back stoops.
Still, recognizing party control liberates courts to decide parties’ disputes on the terms the parties set. Judges need not send their own investigators to the scene of the crime. They don’t even have to send their own law clerks to the library. (A notable exception: judges must confirm the court has “subject matter jurisdiction” over the case, even if the parties agree that it does.)
The question is, to what extent must (and should) judges and jurors sideline their understanding of the law or the world in favor of the version the parties present to them?
The Supreme Court routinely observes that it is assuming some feature of the case that the parties do not dispute because the parties do not dispute it. A notable example (especially notable because the assumption is now in doubt) is Free Enterprise Fund v. Public Co. Accounting Oversight Bd.: “The parties agree that the Commissioners cannot themselves be removed by the President except under the Humphrey’s Executor standard of ‘inefficiency, neglect of duty, or malfeasance in office,’ and we decide the case with that understanding.”
Other times, though, the court takes the wheel. No party invited the court to develop the Erie Doctrine, for example. (For readers unfamiliar with Erie Railroad v. Tompkins, I’ll spare you to gory details, but suffice to say, it was a big deal.) And Illinois at one point rejected the argument with which it prevailed in Trump v. Illinois.
The Supreme Court typically either accepts or overrides the parties’ framing of the dispute in order to be able to reach and clarify an important issue of law (or avoid one it is not prepared to resolve). But there are signs that it is unwilling to give lower courts the same latitude.
In two cases over the past several years, the justices chastised courts of appeals for not adhering to the party presentation principle and basing their rulings on arguments not raised by the parties. …
Both decisions leave unanswered many questions about the “scope and effect” of the party presentation principle: just how narrowly and strictly does party presentation constrain courts? Answering this question is difficult because the source of the principle is also unknown. Many of the structures and norms that once bound courts to party presentation have been lost as the country has increasingly looked to courts as arbiters of public policy disagreements, rather than resolvers of concrete legal disputes between contending parties.
Closely related, from last year: Randy Barnett & Lawrence Solum: Originalism and the Party Presentation Principle.
Posted at 6:09 AM