Owen Smitherman has posted Grounding the Party Presentation Principle on SSRN. Here is the abstract:
The party presentation principle provides that parties, not courts, define the content and scope of a judicial controversy. On the surface, the principle is important to the American adversarial system. But the courts of appeals have been in sharp conflict over its use ever since the Supreme Court invoked the principle in United States v. Sineneng-Smith (2020). Five years later, federal judges have repeatedly accused their colleagues of violating the party presentation principle and Sineneng-Smith. The stakes are high—the principle can be outcome-determinative in the oft-occurring case where an unraised argument or issue is dispositive. Moreover, as some scholars have questioned, what exactly is the legal basis to enforce the principle in federal court?
This Article identifies and seeks to resolve the ongoing conflict with a novel explanation for the party presentation principle: general law. The general law explanation grounds the party presentation principle in longstanding legal principles and custom. And it yields several important insights. First, the party presentation principle is a legitimate rule of procedure grounded in law. Also, it may be abrogated and can change over time. Finally, the Supreme Court’s views about general law are binding on the lower federal courts, and in Sineneng-Smith, the justices instituted a looser principle of party presentation than mere principles or custom might otherwise support.
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