The limits of advocacy

Duke Law Journal

Volumn 59, Issue 3, 2009, Pages 447-517

  Frost, Amanda ^a  

^a AMERICAN UNIVERSITY   (United States)

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EID: 77954827591     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (250)

1. See McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991) ("What makes a system adversarial rather than inquisitorial is. .. the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties.").
2. See generally John H. Langbein, The German Advantage in Civil Procedure, 52 U. CHI. L. REV. 823 (1985) (comparing the roles of lawyers and judges in the American and German legal systems).
3. E.g., Boynton v. Virginia, 364 U.S. 454, 457 (1960).
4. E.g., Washington v. Davis, 426 U.S. 229, 238 (1976).
5. E.g., Phillips/May Corp. v. United States, 524 F.3d 1264, 1269-70 & n.2 (Fed. Cir. 2008).
6. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
7. Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842).
8. Erie, 304 U.S. at 66 (argument for petitioner).
9. (holding that by applying Swift v. Tyson, federal courts had assumed powers constitutionally reserved to the states).
10. Washington v. Davis, 426 U.S. 229 (1976).
11. Dickerson v. United States, 530 U.S. 428 (2000), rev'g 166 F.3d 667 (4th Cir. 1999).
12. United States v. Dickerson, 166 F.3d 667, 682 (4th Cir. 1999).
13. See Dickerson, 530 U.S. at 437, 441 n.7 (noting that because the parties had not argued in favor of the statute's constitutionality, the Court had invited amicus curiae to do so).
14. Miranda v. Arizona, 384 U.S. 436 (1966).
15. See Dickerson, 530 U.S. at 437, 441 n.7.
16. Dickerson, 166 F.3d at 682.
17. See, e.g., Erwin Chemerinsky, The Court Should Have Remained Silent: Why the Court Erred in Deciding Dickerson v. United States, 149 U. PA. L. REV. 287, 292 (2000) ("[T]he courts exceeded the appropriate judicial role in raising a major constitutional issue not presented by the parties. .. .").
18. Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 388 (1978) (asserting that the system works best when the decisionmaker "rests his decision wholly on the proofs and argument actually presented to him by the parties"); infra note 42 and accompanying text. An exception is Neal Devins's article defending the Fourth Circuit's sua sponte questioning of the continuing validity of Miranda in its decision in Dickerson v. United States.
19. Neal Devins, Asking the Right Questions: How the Courts Honored the Separation of Powers by Reconsidering Miranda, 149 U. PA. L. REV. 251, 253 (2000). Professor Devins argues convincingly in support of the Fourth Circuit, but does not purport to defend sua sponte decisionmaking in circumstances outside of the unique situation presented by Dickerson.
20. (noting that "Dickerson is a truly unusual case" and commenting that he "do[es] not mean to suggest that courts ought to search out ways to decide cases in which the executive is unwilling to defend the constitutionality of an act of Congress").
21. ("[I]n Dickerson, the Fourth Circuit invoked § 3501 over the objections of the parties precisely because it wanted to reach a particular result: upholding its constitutionality.").
22. Some of this Article's arguments regarding judicial power to raise new issues of law would apply to state as well as federal judges. Much of this Article focuses on the role of the federal courts in the constitutional structure, however, and thus the power of state courts may differ depending on their place in state government.
23. See, e.g., Robert G. Bone, Lon Fuller's Theory of Adjudication and the False Dichotomy Between Dispute Resolution and Public Law Models of Litigation, 75 B.U.L. REV. 1273, 1275 (1995) ("Almost everyone today would agree that adjudication is about articulating public norms as well as settling private disputes. .. .").
24. Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 WM. & MARY L. REV. 639, 643 (1981) ("Adjudication in the common law mold entails two simultaneously performed functions: dispute resolution and norm articulation.").
25. Melvin Aron Eisenberg, Participation, Responsiveness, and the Consultative Process: An Essay for Lon Fuller, 92 HARV. L. REV. 410, 412 (1978) ("One function of adjudication is the settlement of past disputes. Frequently the adjudicator assumes a second function of making rules to govern future conduct.").
26. Owen M. Fiss, The Supreme Court, 1978 Term-Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 30 (1979) (stating that "dispute resolution may be one consequence of the judicial decision" but the "function of the judge" is to "give the proper meaning to our public values").
27. Chad M. Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide, 94 GEO. L.J. 121, 137-38 & n.51 (2005) (discussing the courts' dual function of dispute resolution and law pronouncement, and stating that "there is general agreement that both functions play some role in adjudication").
28. In common law jurisdictions, "precedents were not merely evidence of the law but the law itself.".
29. GEORGE P. FLETCHER & STEVE SHEPPARD, AMERICAN LAW IN A GLOBAL CONTEXT 35 (2005). In civil law countries, "cases are merely evidence of the law.".
30. See infra Part IV for further discussion of the criteria that should govern issue creation.
31. (characterizing adjudication as a process that gives the private parties whose interests are at stake the opportunity to present arguments in their favor to a neutral arbiter).
32. See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1282-84 (1976) (contrasting the "traditional" model of adjudication as "a vehicle for settling disputes between private parties about private rights" with a "public law" model where "the object of litigation is the vindication of constitutional or statutory policies").
33. Owen M. Fiss, Comment, Against Settlement, 93 YALE L.J. 1073, 1085 (1984) (stating that the "job" of a judge "is not to maximize the ends of private parties. .. but to explicate and give force to the values embodied in authoritative texts such as the Constitution and statutes").
34. (arguing that "dispute resolution may be one consequence of" adjudication, but the "function of the judge. .. is not to resolve disputes, but to give the proper meaning to our public values").
35. Jonathan T. Molot, An Old Judicial Role for a New Litigation Era, 113 YALE L.J. 27, 34-35 (2003) (discussing the differences between Fuller's and Chayes's models of litigation).
36. (asserting that Lon Fuller's theory of adjudication has been distorted by scholars who wrongly perceive of Fuller as promoting a " dispute resolution model" that stands in polar opposition to Chayes and Fiss's " public law model" ).
37. See, e.g., Greenlaw v. United States, 128 S. Ct. 2559, 2564 (2008) (describing the "principle of party presentation," under which " the parties. .. frame the issues for decision" and the courts take on " the role of neutral arbiter of matters the parties present" ).
38. Sarah M.R. Cravens, Involved Appellate Judging, 88 MARQ. L. REV. 251, 251 (2004) (discussing uncertainty about the extent to which a court " may choose to consider. .. an issue [not raised by the parties] sua sponte" ).
39. Lee Epstein, Jeffrey A. Segal & Timothy Johnson, The Claim of Issue Creation on the U.S. Supreme Court, 90 AM. POL. SCI. REV. 845, 845 (1996) (describing the " practice disfavoring the creation of issues not raised in the record before the Court" as a " norm" ).
40. Eric D. Miller, Comment, Should Courts Consider 18 USC § 3501 Sua Sponte?, 65 U. CHI. L. REV. 1029, 1049 (1998) (" In practice, it is unusual for courts to consider issues sua sponte...." ).
41. Greenlaw v. United States, 128 S. Ct. 2559 (2008).
42. See, e.g., Elder v. Holloway, 510 U.S. 510, 511-12 (1994) (holding that an appellate court should take notice of relevant legal precedent overlooked by the parties). It is worth noting that the unquestioned judicial power to sua sponte take notice of relevant precedent suggests that judges have an obligation to pronounce upon an objective version of the law, and not simply the parties' subjective view of it-an observation that supports giving judges broader power to raise overlooked legal claims and arguments.
43. See, e.g., United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004) (refusing to address sua sponte a legal argument that the parties had failed to raise).
44. See, e.g., Gonzales v. Carhart, 127 S. Ct. 1610, 1640 (2007) (Thomas, J., concurring) (" I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it." ).
45. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 486-87 (2001) (Thomas, J., concurring) (noting, but declining to address, a potential constitutional problem with a federal statute because the parties did not raise the issue).
46. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 279 (2001) (" We do not inquire here whether the DOJ regulation was authorized by § 602.... The petition for writ of certiorari raised, and we agreed to review, only the question. .. whether there is a private cause of action to enforce the regulation." ).
47. See, e.g., Phillips/May Corp. v. United States, 524 F.3d 1264, 1270 n.2 (Fed. Cir. 2008) (noting that neither party cited legislative history that the court found dispositive of a legal question in the case).
48. Compare Bombardier, 380 F.3d at 497 (refusing to address sua sponte a legal argument that the parties had failed to raise), and Warner v. Aetna Health Inc., 333 F. Supp. 2d 1149, 1154 n.7 (W.D. Okla. 2004) (refusing to address a legal argument not raised by the parties), with Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (" When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law." ).
49. See, e.g., Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 380 n.23 (1982) (" Some proceduralists identify 'party-presentation' and 'party-prosecution' as the two fundamental elements of adversarialism." ); supra note 1.
50. See, e.g., Clements v. Serco, Inc., 530 F.3d 1224, 1229 n.4 (10th Cir. 2008) (declining to decide the case on grounds not raised by the parties); e360 Insight v. Spamhaus Project, 500 F.3d 594, 599 (7th Cir. 2007) (declining to raise an affirmative defense sua sponte); Kropelnicki v. Siegel, 290 F.3d 118, 130 n.7 (2d Cir. 2002) (stating that statutes of limitations ordinarily should not be raised sua sponte).
51. Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 522 n.8 (4th Cir. 1995) (" The normal rule of course is that failure to raise an issue for review in the prescribed manner constitutes a waiver." ).
52. Hardiman v. Reynolds, 971 F.2d 500, 502 (10th Cir. 1992) (" Generally, where the parties have not raised a defense, the court should not address the defense sua sponte." ).
53. Bolden v. Se. Pa. Transp. Auth., 953 F.2d 807, 812 (3d Cir. 1991) (en banc) (" We do not generally consider issues not raised by the parties. .. ." ).
54. Izquierdo Prieto v. Mercado Rosa, 894 F.2d 467, 471 n.4 (1st Cir. 1990) (" Ordinarily, we would decline to raise a defense sua sponte that a party had failed to raise on his own behalf." ).
55. Carducci v. Regan, 714 F. 2d 171, 177 (D.C. Cir. 1983) (" The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." ).
56. United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring).
57. see also Greenlaw v. United States, 128 S. Ct. 2559, 2564 (2008) (" In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present." ).
58. McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991) (" What makes a system adversarial... is... the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties." ); Carducci, 714 F.2d at 177 (" The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." ).
59. ERWIN CHEMERINSKY, FEDERAL JURISDICTION 268 (5th ed. 2007) (" In American courts that are committed to the adversary system, generally judges are supposed to rule only on motions brought by the parties." ).
60. (describing the " practice disfavoring the creation of issues not raised in the record before the Court" as a "norm").
61. Ellen E. Sward, Values, Ideology, and the Evolution of the Adversary System, 64 IND. L.J. 301, 302 (1989) (" The adversary system is characterized by party control of the investigation and presentation of evidence and argument, and by a passive decisionmaker who merely listens to both sides and renders a decision based on what she has heard." ).
62. STEPHAN LANDSMAN, READINGS ON ADVERSARIAL JUSTICE: THE AMERICAN APPROACH TO ADJUDICATION 2 (1988).
63. (" The adversary system relies on a neutral and passive decision maker to adjudicate disputes after they have been aired by the adversaries in a contested proceeding." ).
64. (" [A] central tenet of our adversarial system is that (save for jurisdictional issues) the parties to a case-not the judges deciding the case-raise the legal arguments." ).
65. See, e.g., STEPHEN N. SUBRIN & MARGARET Y.K. WOO, LITIGATING IN AMERICA: CIVIL PROCEDURE IN CONTEXT 22-25 (2006).
66. Judith Resnik, Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, 148 U. PA. L. REV. 2119, 2130 (2000) (identifying the freedom of civil litigants to " make their way through the adversarial processes. .. on their own" as a premise " deeply embedded within United States culture" ).
67. David Alan Sklansky, Anti-Inquisitorialism, 122 HARV. L. REV. 1634, 1638 (2009) (" [T]he vast majority of American scholars, like the vast majority of American judges, are apt to agree with the Supreme Court that the civil-law mode of criminal procedure, far from meriting emulation, should be studiously avoided - indeed, that avoiding inquisitorial justice is what our own system is all about." (internal quotation marks omitted)).
68. (" When litigants direct the proceedings, there is little opportunity for the judge to pursue her own agenda or to act on her biases." ).
69. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61 (1992).
70. see also Abram Chayes, The Supreme Court, 1981 Term-Foreword: Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 24 (1982) (stating that standing doctrine " ensur[es] vigorous adversary presentation" ).
71. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
72. (" Party control. ... affirms human individuality. It mandates respect for the opinions of each party rather than those of his attorney, of the court, or of society at large." ).
73. (" Because the judge seldom takes the lead in conducting the proceedings, she is unlikely to appear to be partisan or to become embroiled in the contest. Her detachment preserves the appearance of fairness as well as fairness itself." ).
74. (noting that due process requires judicial neutrality and an opportunity to present evidence).
75. (" According to adversary theory, when each actor performs only a single function the dispute before the court will be resolved in the fairest and most efficient way." ).
76. E.g., United States v. Wiseman, 297 F.3d 975, 980 (10th Cir. 2002) (declining to raise a new issue sua sponte because it would delay resolution of the litigation).
77. See THOMAS B. MARVELL, APPELLATE COURTS AND LAWYERS: INFORMATION GATHERING IN THE ADVERSARY SYSTEM 124 (1978) (" [One] court rule, applied to issues not raised at trial as well as on appeal, is that issues not raised will be ignored unless doing so would result in an injustice.. .. [T]his is a very uncertain standard, and it leaves the judges a good deal of discretion.. .. Other courts often use 'justice' or other elusive standards, such as 'plain error' or 'fundamental error,' in determining when to decide an issue not raised." ).
78. see also Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 TENN. L. REV. 245, 248 (2002) (noting that despite the rhetoric against sua sponte decisionmaking by courts, "raising issues sua sponte is not an uncommon practice" ).
79. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION 258 (3d ed. 1999).
80. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61 (1992).
81. See, e.g., Cincinnati Indem. Co. v. A&K Constr. Co, 542 F.3d 623, 625 (8th Cir. 2008) (raising abstention sua sponte).
82. Nair v. Oakland County Cmty. Mental Health Auth., 443 F.3d 461, 474 (6th Cir. 2006) (raising sovereign immunity sua sponte).
83. Scherer v. Equitable Life Assurance Soc'y, 347 F.3d 394, 398 n.4 (2d Cir. 2003) (noting that " a court is free to raise [res judicata] sua sponte" ).
84. See, e.g., Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir.1993).
85. See, e.g., Cincinnati Indem. Co., 542 F.3d at 624-25 (raising abstention sua sponte); Nair, 443 F.3d at 474 (raising sovereign immunity sua sponte).
86. See, e.g., Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 522 n.8 (4th Cir. 1995) (" The normal rule of course is that the failure to raise an issue for review in the prescribed manner constitutes a waiver. But the rule is not an absolute one and review may proceed (even completely sua sponte) when the equities require." (citation omitted)).
87. Lambert v. Genesee Hosp., 10 F.3d 46, 56 (2d Cir. 1993) (" We recognize that th[e] issue was not presented to this court. ... However, we have discretion to consider and decide sua sponte a dispositive issue of law. .. ." ).
88. Counts v. Kissack Water & Oil Serv., Inc., 986 F.2d 1322, 1325-26 (10th Cir. 1993) (" Although it is rarely done, an appellate court may, sua sponte, raise a dispositive issue of law when the proper resolution is beyond doubt and the failure to address the issue would result in a miscarriage of justice." ).
89. ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 346 (7th ed. 1993).
90. See United States v. Boyd, 208 F.3d 638, 651 (7th Cir. 2000) (Ripple, J., dissenting), judgment vacated, 531 U.S. 1135 (2001) (" There is... no rigid and undeviating judicially declared practice under which courts of review invariably and under all circumstances decline to consider all questions which have not previously been specifically urged.... Exceptional cases or particular circumstances may prompt a reviewing court, where injustice might otherwise result or where public policy requires, to consider questions neither pressed nor passed upon below." (first alteration in original) (quoting Nuelsen v. Sorensen, 293 F.2d 454, 462 (9th Cir. 1961))).
91. (" [I]n Dickerson, the Fourth Circuit invoked § 3501 over the objections of the parties precisely because it wanted to reach a particular result: upholding its constitutionality." ).
92. Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 SAN DIEGO L. REV. 1253, 1256-58, 1260 (2002) (" The absence of a consistent principle [for raising issues sua sponte] leaves courts open to the accusation that ignoring the adversary process is a political action, where a court reaches out to legislate instead of following judicial norms." ).
93. See, e.g., Yee v. City of Escondido, 503 U.S. 519, 535 (1992) (noting that the Court has " on occasion rephrased the question presented by a petitioner or requested the parties to address an important question of law not raised in the petition for certiorari" ).
94. Payne v. Tennessee, 498 U.S. 1080, 1080 (1991) (granting the certiorari petition and " request[ing]" that the parties " brief and argue whether Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), should be overruled" ).
95. Patterson v. McLean Credit Union, 485 U.S. 617, 617 (1988) (ordering the parties to address whether 42 U.S.C. § 1981 affords a remedy against private employers).
96. Paris Adult Theatre I v. Slaton, 408 U.S. 921, 921 (1972) (ordering the parties to brief an additional question).
97. Neely v. Strubs Constr. Co., 382 U.S. 914, 914 (1965) (granting the certiorari petition and asking the parties to address whether the appellate court's power pursuant to Federal Rule of Civil Procedure 50 and the Court's own precedent to issue a judgment notwithstanding the verdict justified the ruling below).
98. Yee, 503 U.S. at 535 (quoting Stone v. Powell, 428 U.S. 465, 481 n.15 (1976)). In Blonder-Tongue Laboratories v. University of Illinois Foundation, 402 U.S. 313 (1971), the Supreme Court stated that the rule "does not limit our power to decide important questions not raised by the parties," and went on to describe " well-recognized exceptions" to the rule.
99. Linda Sandstrom Simard, An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access, Efficiency, and Adversarialism, 27 REV. LITIG. 669, 671 (2008) (reporting that amicus participation in the Supreme Court increased 800 percent during the last half of the twentieth century).
100. John Harrington, Note, Amici Curiae in the Federal Courts of Appeals: How Friendly Are They?, 55 CASE W. RES. L. REV. 667, 680 (2005) (reporting that amicus participation in the courts of appeals increased 14.6 percent from 1992 through 2002).
101. See SUP. CT. R. 37.1.
102. (noting that "amici are criticized if they merely duplicate the information presented by the parties" ). In the words of Supreme Court Rule 37.1: "An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored." SUP. CT. R. 37.1.
103. Gregory A. Caldeira & John R. Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, 82 AM. POL. SCI. REV. 1109, 1122 (1988) (" [T]he addition of just one amicus curiae brief in support of certiorari increases the likelihood of plenary review by 40%- 50%." ).
104. Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743, 830 (2000).
105. Paul M. Collins Jr., Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation, 38 LAW & SOC'Y REV. 807 passim (2004).
106. Teague v. Lane, 489 U.S. 288 (1989).
107. Mapp v. Ohio, 367 U.S. 643 (1961).
108. Romer v. Evans, 517 U.S. 620 (1996).
109. Kenji Yoshino, Tribe, 42 TULSA L. REV. 961, 966 (2007).
110. Bob Jones Univ. v. United States, 461 U.S. 574 (1983).
111. Goldsboro Christian Schs., Inc. v. United States, 456 U.S. 922, 922 (1982) (" William T. Coleman, Jr., Esquire, of Washington, D.C., a member of the Bar of this Court, is invited to brief and argue [this case and Bob Jones University], as amicus curiae in support of the judgments below.").
112. Irizarry v. United States, 128 S. Ct. 2198 (2008).
113. See, e.g., CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS 378 (6th ed. 2002) (" It is impossible to overstate the importance of the Erie decision." (footnote omitted)).
114. Justice Hugo Black, Address at the Sixty-Second Annual Meeting of the Missouri Bar Association (Sept. 25, 1942), in 13 MO. B.J. 173, 174 (1942) (declaring Erie " one of the most important cases at law in American legal history" ).
115. Erie R.R. v. Tompkins, 304 U.S. 64, 78-80 (1938).
116. Washington v. Davis, 426 U.S. 229, 238-39 (1976).
117. The United States had raised 18 U.S.C. § 3501 in the district court, but then had abandoned the argument in accordance with the United States Department of Justice's longstanding policy of refusing to rely on the statute for the admission of confessions.
118. (citing Pretrial Rehearing Brief for the United States at 2 n.1, United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999)).
119. See, e.g., U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., 508 U.S. 439, 445-48 (1993) (stating that a court may raise sua sponte an issue that is " antecedent to. .. and ultimately dispositive of" the dispute before it because litigants cannot " extract the opinion of a court on hypothetical Acts of Congress or dubious constitutional principles" simply by stipulating as to matters of law that are not in fact certain).
120. Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (" When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law." ).
121. United States v. Leon, 468 U.S. 897, 905 (1984) (noting that even though the United States had not asked the Court to review the lower court's determination that probable cause was absent, it nonetheless had the " power" to decide the case on this ground if it wished to do so).
122. Kevin T. McGuirre & Barbara Palmer, Issue Fluidity on the U.S. Supreme Court, 89 AM. POL. SCI. REV. 691, 699 (1995).
123. (citing articles criticizing the Fourth Circuit for sua sponte raising a new issue in Dickerson).
124. Helen Hershkoff, State Courts and the "Passive Virtues" : Rethinking the Judicial Function, 114 HARV. L. REV. 1833, 1877-78 (2001) (" Article III invokes but does not define the 'judicial Power.' Nor does it specify which procedures federal courts should use to decide cases or controversies." (footnote omitted)).
125. Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L. J. 1363, 1364 (1973) (stating that Article III " is itself spare and unhelpful" on the meaning of judicial power).
126. Adrian Vermeule, Essay, Judicial History, 108 YALE L.J. 1311, 1335 (1999) (" Article III. .. says nothing about the procedures by which courts vested with the judicial power must or may consider and decide cases. .. ." ).
127. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
128. Richard H. Fallon, Jr., Marbury and the Constitutional Mind: A Bicentennial Essay on the Wages of Doctrinal Tension, 91 CAL. L. REV. 1, 5 (2003) (" Marbury not only represents the fountainhead of judicial review, but also furnishes the canonical statement of the necessary and appropriate role of courts in the constitutional scheme." ).
129. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (" [Marbury] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land...." ).
130. See, e.g., Cobell v. Norton, 428 F.3d 1070, 1075 (D.C. Cir. 2005) (" [P]ost-enactment legislative history is. .. entitled to little weight." ).
131. Plaut v. Spendthrift Farms, 514 U.S. 211, 218-19 (1995) (holding that Congress cannot revise final judgments by Article III courts); Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 (1792) (holding that the executive branch cannot revise judgments by Article III courts).
132. Some scholars contend that the Supreme Court has already transferred the judicial branch's exclusive authority to interpret law to the executive branch by establishing Chevron deference. Under Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), courts must defer to reasonable agency interpretations of ambiguities in the statutes they administer even when the judges themselves would have reached a different conclusion, id. at 845, leading some scholars to characterize Chevron as the " counter-Marbury for the administrative state.".
133. Cass Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 YALE L.J. 2580, 2589 (2006). Chevron grants the executive branch, through agencies, a great deal of authority over what had once been solely the judiciary's domain. But Chevron deference is highly constrained. Deference is granted only when agencies are interpreting a statute that Congress has assigned them to administer, and only after a court finds that the statute is ambiguous and the agency's interpretation is reasonable. Most important for the discussion here, agency interpretations will be awarded deference only when announced through formal procedures, such as notice-andcomment rulemaking and formal adjudication, rather than through informal channels such as letters, guidance documents, or briefs.
134. See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). Applied under these conditions, Chevron deference is justified on the grounds that.
135. See, e.g., Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 100 n.5 (1991) (stating that when the parties fail to fully and accurately describe the law, courts should be careful to avoid " issuing an opinion that could reasonably be understood by lower courts and nonparties to establish binding circuit precedent on the issue decided" ).
136. See, e.g., Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in the United States, 56 STAN. L. REV. 1435 passim (2004) (criticizing unpublished decisions on these grounds).
137. Stare decisis is the judicial policy in favor of adhering to past precedent. Law of the case is the principle followed by appellate courts of refusing to alter a previous appellate determination made in the same case in an earlier appeal. Res judicata is the policy that a final judgment rendered by a court with competent jurisdiction is conclusive on the questions involved between the parties and their privies. All three doctrines thus require, or at least strongly encourage, courts to adhere to previous decisions with which they may disagree.
138. (stating that none of the faults attributed to the adversarial system are so serious as to warrant the abandonment of adversary procedure).
139. Furthermore, it is worth noting that stare decisis is not an unyielding doctrine. If a reviewing court concludes that a prior decision is truly wrong, it has the power to overrule that precedent. And if a lower court believes that an intervening line of Supreme Court cases or a new Act of Congress overrules a higher court's earlier ruling, then it can refuse to follow what it concludes is a now-defunct precedent. Thus, these doctrines will give way at times to the need for accurate legal opinions.
140. There are additional good reasons to require lower court obeisance to the decisions reached by reviewing courts. Our hierarchical federal court system is premised, in large part, on the assumption that higher courts are more likely to get the law right. Higher courts sit in multijudge panels that allow for the benefit of deliberation and discussion; these courts have more time to decide each case; and these judges are (supposedly) superior legal intellects.
141. See Evan H. Caminker, Why Must Lower Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 837-49 (1994).
142. See, e.g., Reva B. Siegel, Heller & Originalism's Dead Hand-In Theory and Practice, 56 UCLA L. REV. 1399, 1409 (2009) (quoting an interview in which Justice Scalia stated that he is a textualist).
143. See, e.g., Robert Post & Reva Siegel, Originalism as a Political Practice: The Right's Living Constitution, 75 FORDHAM L. REV. 545, 562-68 (2006) (discussing and criticizing originalism).
144. See, e.g., William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693, 695 (1976) (discussing the interpretive philosophy premised on the idea of a " living Constitution" ).
145. Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 652 n.308 (1995).
146. see also William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 599 (1992) (noting that courts attempt to construct congressional acts so as to avoid constitutional questions). 111. The Court's presumption against the preemption of state law, for example, is rooted in respect for state sovereignty.
147. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (" So we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." ). The rule of lenity, which requires a court to give a criminal defendant the benefit of any ambiguity within a statutory text, is a quasi-constitutionally based rule of construction derived from the notion that citizens must be given fair warning before they can be punished and that Congress, not courts, should make the moral judgments behind criminal sanctions.
148. William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 NOTRE DAME L. REV. 1441, 1475 (2008). The absurdity doctrine enables even textualists to deviate from the plain language of a statute if such a reading would produce an absurd result.
149. See, e.g., John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2419 (2003) (noting that the absurdity doctrine is viewed as a " qualification to textual interpretation" ). 112.
150. Compare Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2088 (2002) (arguing that Congress has the authority to create federal rules of statutory interpretation).
151. John Harrison, Essay, The Power of Congress over the Rules of Precedent, 50 DUKE L.J. 503, 505 (2000) (arguing that Congress can abrogate stare decisis).
152. Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-Making, 18 CONST. COMMENT. 191, 194-95 (2001) (asserting that " Congress does not have the power to tell the federal courts how to go about their business of deciding cases" ). 113.
153. See, e.g., Phillips/May Corp. v. United States, 524 F.3d 1264, 1270 n.3 (Fed. Cir. 2008) (noting that neither party cited legislative history that the court found dispositive of a legal question in the case).
154. Cf. United States ex rel. Totten v. Bombardier, 380 F.3d 488, 497 (D.C. Cir. 2004) (noting that the court has the authority to remedy errors sua sponte when the parties' failure to plead a particular issue seriously affects " the fairness, integrity, or public reputation of judicial proceedings" ).
155. See, e.g., Boynton v. Virginia, 364 U.S. 454, 457 (1960).
156. Gonzales v. Carhart, 127 S. Ct. 1610 (2007).
157. (Thomas, J., concurring) (" I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it." ).
158. See Trevor W. Morrison, Constitutional Avoidance in the Executive
159. (critiquing the rationales for the constitutional avoidance canon).
160. (stating that the executive branch does not share the judiciary's institutional limitations (such as its countermajoritarian status), and thus does not need to employ the constitutional avoidance canon in the same way a court would).
161. Boynton v. Virginia, 364 U.S. 454 (1960).
162. Neese v. S. Ry. Co., 350 U.S. 77 (1955.).
163. See generally CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (1999) (describing the minimalist philosophy).
164. Here I disagree with Professor Chad Oldfather, who argues that if judges avoid broad, rule-based decisions, they can avoid the problem of going beyond parties' arguments. Oldfather, supra note 22, at 137-38 & n.51. He assumes that deficiencies in the parties' case presentation will prevent the court from adopting the appropriate broad rule of general application, but overlooks the possibility that the opposite problem will occur. That is, the parties might present only the broad-brush arguments to the courts, omitting case-specific claims that would narrow the scope of the court's decision.
165. Cf. Frank B. Cross, In Praise of Irrational Plaintiffs, 86 CORNELL L. REV. 1, 9-15 (2000) (analyzing empirical evidence demonstrating that institutional litigants seek to manipulate precedent).
166. (describing individual litigants' " sociotropic goal of setting a precedent that would assist others who may be similarly situated future plaintiffs" ).
167. Marc Galanter, Why the " Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95, 97-103 (1974) (noting that repeat players are concerned about the effects of litigation beyond the immediate case).
168. U.S. CONST. art. III, § 1 (" The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office." ).
169. See, e.g., Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U.L. REV. 333, 354 (1998) (describing the " countermajoritarian criticism" as " a challenge to the legitimacy or propriety of judicial review on the grounds that it is inconsistent with the will of the people, or a majority of the people, whose will, it is implied, should be sovereign in a democracy" ).
170. See, e.g., Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 708 (1995) (" [T]he federal judiciary's independence is widely thought to enhance its authority. .. ." ).
171. The possibility of elevation to a higher court, however, could influence judicial decisions. Jonathan Remy Nash, Essay, Prejudging Judges, 106 COLUM. L. REV. 2168, 2196 n.83 (2006).
172. United States v. Klein, 80 U.S. (13 Wall) 128 (1872).
173. See, e.g., Martin H. Redish & Christopher R. Pudelski, Legislative Deception, Separation of Powers, and the Democratic Process: Harnessing the Political Theory of United States v. Klein, 100 NW. U. L. REV. 437, 450 (2006) (" The end result was that while the controlling substantive law purportedly remained the same, in reality the essence of that law had been effectively transformed into something very different." ). 137. Lawrence Sager stated the " first principle" of Klein as follows: " The judiciary will not allow itself to be made to speak and act against its own best judgment on matters within its competence which have great consequence for our political community. The judiciary will not permit its articulate authority to be subverted to serve ends antagonistic to its actual judgment; the judiciary will resist efforts to make it seem to support and regularize that with which it in fact disagrees.".
174. Lawrence G. Sager, Klein's First Principle: A Proposed Solution, 86 GEO. L.J. 2525, 2529 (1998).
175. See John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretation of Agency Rules, 96 COLUM. L. REV. 612, 645-54 (1996) (discussing the importance of the separation of lawmaking from law exposition).
176. Cf. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT § 143, at 76 (C.B. MacPherson ed., 1980) (1690) (" [I]t may be too great a temptation to human frailty, apt to grasp at power for the same persons, who have the power of making laws, to have also in their hands the power to execute them, whereby they exempt themselves from obedience to the laws they make. .. ." ).
177. THE FEDERALIST NO. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
178. William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 CORNELL L. REV. 831, 875-86 (2001) (" As part of the execution of the law, the Executive must decide whether to litigate and what legal positions the Administration will advance." (footnote omitted)).
179. See, e.g., Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 321-43 (1994).
180. (" The conventional view. .. is that the executive branch is indeed bound by the Supreme Court's determination that a given statute or governmental action is unconstitutional." ).
181. Dickerson v. United States, 530 U.S. 429, 437 (2000).
182. (asserting that deference to agency interpretation of agency rules violates the separation of powers principle that lawmaking should be kept separate from law exposition).
183. 28 U.S.C. § 530D (2006). When signing the most recent version of this statute into law, President Bush issued a statement that the executive branch would construe the statute "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties." Statement on Signing the 21st Century Department of Justice Appropriations Authorization Act, 2 PUB. PAPERS 2010, 2010 (Nov. 2, 2002). Presumably, then, the Bush administration envisioned circumstances under which it would not inform Congress of its refusal to enforce a federal statute or rule.
184. See Trevor W. Morrison, Executive Branch Avoidance and the Need for Congressional Notification, 107 COLUM. L. REV. SIDEBAR (2007), http://www.columbialawreview.org/articles/executive-branch-avoidance-and the-need-for-congressional-notification.
185. Amy Coney Barrett, Stare Decisis and Due Process, 74 U. COLO. L. REV. 1011, 1017 (2003) (" [P]recedent does operate to preclude litigants in the mainstream of cases." ).
186. For example, in Dickerson, the Supreme Court reaffirmed its Miranda decision, concluding there was no "special justification" for overturning a longstanding precedent. Although Dickerson did not affirmatively embrace Miranda's rationale, the majority nonetheless refused to abandon it, citing stare decisis as its primary justification: "Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now." Dickerson v. United States, 530 U.S. 428, 443 (2000).
187. Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90 (1991).
188. (discussing how stare decisis serves as a constraint on judicial discretion).
189. THE FEDERALIST NO. 78 (Alexander Hamilton).
190. WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW 20-21 (1975).
191. See, e.g., Elder v. Holloway, 510 U.S. 510, 511-12 (1994) (holding that an appellate court should take notice of legal precedent overlooked by the parties).
192. STEPHAN LANDSMAN, THE ADVERSARY SYSTEM: A DESCRIPTION AND DEFENSE 20 (1984).
193. (describing flaws in the adversarial system).
194. (discussing the problem of " poor quality of legal representation" ).
195. William B. Rubenstein, The Concept of Equality in Civil Procedure, 23 CARDOZO L. REV. 1865, 1867-68 (2002) (noting that the adversary system breaks down when the parties are not evenly matched).
196. (stating that " the parties may be quite unequal in resources or skill" and that " [a]dversary theory tends to ignore this inequality" ).
197. (noting that the vast majority of American judges believes that the inquisitorial role played by judges in civil law systems should be avoided).
198. (" The most sustained effort to build a case for dispute resolution on the basis of moral axioms is Lon Fuller's essay, The Forms and Limits of Adjudication." ).
199. (" I doubt whether dispute resolution is an adequate description of the social function of courts. To my mind courts exist to give meaning to our public values. .. ." ); Fiss, supra note 28, at 1085 (stating that the " job" of a judge " is not to maximize the ends of private parties. .. but to explicate and give force to the values embodied in authoritative texts such as the Constitution and statutes" ).
200. (describing the judge's " active role in shaping, organizing and facilitating the litigation" ).
201. (describing how the traditional forms of adjudication described by Fuller provided useful guides to judges overseeing class actions and other types of modern, "public law" adjudication).
202. (arguing that Fuller's work has been misconstrued, and claiming that in fact " Fuller's theory lies somewhere between the public law and dispute resolution poles" ).
203. (quoting Lon L. Fuller, The Adversary System, in TALKS ON AMERICAN LAW 34, 34-35 (Harold J. Berman ed., 1961)).
204. Although the standard definition of the adversarial system is one in which opposing parties present facts and legal arguments to a mostly passive and entirely impartial decisionmaker, a few scholars have taken a broader view. Professor John Langbein considered the core characteristic of an adversarial system to be advancement of partisan positions through a dialectical exchange, but he rejected an understanding of the adversarial system that left judges sitting passively on the sidelines. In his article promoting the West German dispute resolution system, Langbein argued that United States judges could become more involved in factual investigation without eliminating adversarialness from the system. As Langbein described it, even systems traditionally understood as inquisitorial, such as that existing in West Germany in the 1980s, have many adversarial components. Indeed, Langbein argued that the West German system is an adversarial system. See Langbein, supra note 1, at 824. West German judges take the lead in factual investigations, but they give the parties opportunities to suggest lines of inquiry and sources of evidence, to supplement judicial questioning of witnesses, and to argue inferences from the facts elicited. Although Langbein acknowledged that the traditional view of an adversarial legal system was one in which the parties, and not the judge, were charged with factfinding, he nonetheless argued that the essential adversarial character could be maintained even if judges were given the lead role in factual investigation. Id. at 824-25. This Article does not take a position on this question, but makes a more modest suggestion along the same lines. Judges may identify legal arguments overlooked by the parties without violating the central tenets of adversary theory. 185. As a threshold matter, it is worth noting that the claimed benefits of the adversarial system discussed below are themselves disputed, particularly of late, when adversary process has come under sustained attack.
205. (noting that " the traditional adversarial process has come to be viewed with considerable skepticism".
206. (citing Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 WM. & MARY L. REV. 5, 12-24 (1996))). I do not seek to prove that these benefits in fact accompany adversarial procedures-that is a separate debate that has been the subject of numerous other articles. Rather, this Part argues that sua sponte decisionmaking is compatible with adversarial theory in that it promotes many of the same goals. 186.
207. Monroe H. Freedman, Our Constitutionalized Adversary System, 1 CHAP. L. REV. 57, 73 (1998) (" [T]he adversary system is the method of dispute resolution that is most effective in determining truth. .. ." ).
208. This view is under significant strain today, however. Even vigorous proponents of the adversary system are willing to concede that the ascertainment of truth is not its forte.
209. See Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. CHI. L. REV. 494, 505 (1986) (commenting that John Wigmore's description of cross-examination as the " greatest legal engine ever invented for the discovery of truth" is likely to generate " chuckles" ).
210. Mackey v. Montrym, 443 U.S. 1, 13 (1979).
211. see also Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 28 (1981) (" [O]ur adversary system presupposes [that] accurate and just results are most likely to be obtained through the equal contest of opposed interests...." ).
212. Stephan Landsman, a strong proponent of the adversarial system, nonetheless acknowledged that " [i]f the lawyers fail to carry out their duty, development of the case will be impeded, and the adversary process may be undermined.".
213. (observing that " the parties may be quite unequal in resources or skill" and that " [a]dversary theory tends to ignore this inequality" ).
214. (noting that the adversarial system " emphasize[s] judges' disengagement as the means of achieving impartiality" ).
215. (" If the judge is assigned the task of making factual inquiry, both theoretical analysis and empirical data suggest that his biases are likely to be intensified and his decisions opened to prejudicial influence." ).
216. (contrasting adversarial and inquisitorial judicial models).
217. (quoting Lon L. Fuller & John D. Randall, Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1160 (1958)).
218. (" Because the judge seldom takes the lead in conducting the proceedings, he is unlikely to appear to be partisan or to become embroiled in the contest. His detachment preserves the appearance of fairness as well as fairness itself." ).
219. (" Many current practices assume that trial judges can compartmentalize their minds, disregard inappropriate evidence, and reconsider past decisions in light of new information." ).
220. Unfortunately, the judiciary's reputation for impartiality has suffered under the status quo, in which courts make ad hoc exceptions to the norm of party presentation without articulating a rationale for doing so. Judges who introduce new issues are viewed with suspicion, especially when the issue they raise accords with their perceived ideological bias-such as when the notably conservative Fourth Circuit concluded sua sponte that Miranda had been overridden by statute. Dickerson v. United States, 166 F.3d 667, 695 (4th Cir. 1999). As one critic of judicial issue creation observed, the " absence of a consistent principle leaves courts open to the accusation that ignoring the adversary process is a political action, where the court reaches out to legislate instead of following judicial norms.".
221. (" Adversary theory holds that if a party is intimately involved in the adjudicatory process and feels that he has been given a fair opportunity to present his case, he is likely to accept the results whether favorable or not." ).
222. See DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 67-103 (1988).
223. (noting that as the adversary system's ability to locate truth has come under attack, its supporters have cited its ability to promote human dignity as its primary rationale).
224. (stating that party control of litigation results in more complete information).
225. (" The element of party control of proceedings apparent in English procedure from the earliest times was also attractive to the intensely individualist polity of the eighteenth and nineteenth centuries. The English and American judicial process made increasing allowances for each party to run his lawsuit as he saw fit, to voice his claims and to select his evidence. The judicial decision was directly tied to the presentations of the parties. It is not surprising that these facets of procedure were accentuated in an age preoccupied with the establishment of individual political and economic rights." ).
226. (" Americans will long remain uncomfortable at the prospect of a more bureaucratic judiciary.. .. Some observers point to that elusive construct, national character. Europeans in general and Germans in particular are thought to be more respectful of authority, hence better disposed toward the more bureaucratic mode of justice that judicialized fact-gathering entails." ).
227. Dickerson v. United States, 166 F.3d 667, 672 (4th Cir. 1999). Likewise, in Pearson v. Callahan, 128 S. Ct. 1702 (2008), the Court asked the parties to address whether its precedent in Saucier v. Katz, 533 U.S. 194 (2001), should be overruled, but neither party was compelled to argue that precedent should fall (and, in fact, both claimed that it should be upheld in modified form). Pearson, 128 S. Ct. at 1702-03.
228. The Fourth Circuit was highly critical of the government, claiming that the Department of Justice had "elevat[ed] politics over law." Dickerson, 166 F.3d at 672. Although I defend the Fourth Circuit's discretion to raise the statute sua sponte, I believe that the court erred in criticizing the executive branch for refusing to argue that § 3501 displaced Miranda. I agree with Professor Chemerinsky, who argued that the "Fourth Circuit falsely attributed a political motive to the Justice Department to pave the way for it to consider § 3501 sua sponte." Chemerinsky, supra note 19, at 290. As Chemerinsky noted, "[t]here is no imaginable political benefit to the incumbent administration from not using § 3501.".
229. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 n.10 (1974) (" [The judicial process] is in sharp contrast to the political processes in which the Congress can initiate inquiry and action, define issues and objectives, and exercise virtually unlimited power by way of hearings and reports, thus making a record for plenary consideration and solutions. The legislative function is inherently general rather than particular and is not intended to be responsive to adversaries asserting specific claims or interests peculiar to themselves." ).
230. (" [S]ua sponte consideration of issues is an inefficient use of judicial resources.. .. [R]elying on litigants to present arguments in cases [enables courts to] focus their energies on evaluating these arguments." ).
231. Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033, 1037 (1968) (" The court, not being a representative institution, not having initiating powers and not having a staff for the gathering of information, must rely on the parties and their advocates to frame the problem and to present the opposing considerations relevant to its solution." ).
232. (" Because federal courts have limited ability to conduct independent investigations, they must depend on the parties to fully present all relevant information to them. It is thought that adverse parties, with a stake in the outcome of the litigation, will perform this task best." ).
233. (arguing that judges are institutionally suited to rely on parties to frame issues).
234. See JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION 34 (2d ed. 1985) (" [Judges] have successful careers either in private practice or in government. ... They are appointed or elected to judicial positions on the basis of a variety of factors, including success in practice, their reputation among their fellow lawyers, and political influence." ).
235. (" Many [judges] have been trial lawyers. .. ." ).
236. But see Resnik, supra note 39, at 426 (" [J]udges may well overestimate the extent of their wisdom. Many have been trial lawyers; they have some appreciation for which litigant tactics are well founded and which are dilatory. But because few have practiced in all of the diverse areas of federal court jurisdiction, they may reach ill-founded conclusions in cases about which they really know very little." ).
237. Hartmann v. Prudential Ins. Co. of Am., 9 F.3d 1207, 1214 (7th Cir. 1993).
238. See infra Part IV for further discussion of when and how courts should engage in issue creation.
239. (discussing Chayes's and Fiss's arguments in support of judicial issue creation).
240. See, e.g., Boynton v. Virginia, 364 U.S. 454, 457 (1960) (applying the doctrine of constitutional avoidance to decide the case on statutory grounds, rather than on the constitutional questions raised by the petitioner); supra text accompanying notes 113-29.
241. Dickerson is an example of just such a case. The executive refused to raise 18 U.S.C. § 3501, relying instead on the stricter standard for admission of confessions provided in Miranda, and yet Congress had intended that statutory standard to displace Miranda. No criminal defendant would argue that the statute set the relevant standard for admission of confessions, of course, because it purported to establish a more lenient rule for admitting confessions. Without a court's intervention, the statute would lie dormant. Thus, issue creation was appropriate in Dickerson to protect Congress's legislative role. The need for issue creation in such cases is particularly important because otherwise the executive branch could co-opt courts, benefitting from legal decisions by politically insulated courts that appear to sanction the executive's view of the law.
242. See, e.g., Douglas H. Ginsburg & Brian M. Boynton, The Court En Banc: 1991-2002, 70 GEO. WASH. L. REV. 259, 266 (2002) (" As infrequently as the D.C. Circuit heard cases en banc [during fiscal years 1997-99], at .58% of total case dispositions it had the highest en banc percentage of all the circuits." ).
243. E.g., Goldsboro Christian Schs., Inc. v. United States, 456 U.S. 922, 922 (1982) (inviting William Coleman to brief and argue the case as an amicus after the United States abandoned the position it had taken below).
244. In a few of the cases discussed in Part I.B, the Court overturned precedent that the parties had not thought to question.
245. E.g., Erie R.R. v. Tompkins, 304 U.S. 64, 79-80 (1938) (disapproving the doctrine of Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842)).
246. see also, e.g., Mapp v. Ohio, 367 U.S. 643, 654-55 (1961) (overruling an aspect of Wolf v. Colorado, 338 U.S. 25 (1949), as that case had been interpreted up to that time). A more recent example is Pearson v. Callahan, in which the Court granted the petition on the two questions presented and then asked the parties to address the additional question of "[w]hether the Court's decision in Saucier v. Katz should be overruled." Pearson v. Callahan, 128 S. Ct. 1702, 1702-03 (2008) (citation omitted).
247. See Michael J. Gerhardt, Non-Judicial Precedent, 61 VAND. L. REV. 713, 745-53 (2008) (discussing the limited scope of judicial review of the actions of nonjudicial actors that implicate constitutional issues).
248. See Erie, 304 U.S. at 78-80 (holding that federal courts have no power to create " federal general common law" ).
249. See Washington v. Davis, 426 U.S. 229, 238 (1976) (reversing the lower court's decision on a ground not presented by the parties).
250. See Dickerson v. United States, 530 U.S. 428, 444 (2000) (holding that Congress could not supersede a constitutional ruling of the Supreme Court by statute).