Randy E. Barnett (Georgetown University Law Center) & Lawrence B. Solum (University of Virginia School of Law) have posted Making the Party Presentation Principle Safe for Originalism (forthcoming 174 U. Pa. L. Rev. (2026)) on SSRN. Here is the abstract:
The Supreme Court sometimes adheres to what it calls the “party presentation principle”—terminology that dates back to 2008. Although judicial articulations of the principle have been inconsistent and imprecise, the gist is the familiar notion that courts should resolve cases on the basis of the issues and reasons presented by the parties to the dispute. Conversely, questions not properly raised by the parties should be avoided by the Court. Thus, the Court has on several occasions declined to address arguments outside the scope of the questions raised by the parties in their petition for certiorari.
For originalists, the importance of party presentation is clear in cases where the parties fail to present originalist arguments and the Supreme Court therefore decides the case on the basis of precedent, historical practice, and tradition, or constitutional values—factors that living constitutionalism substitutes for original meaning. With original meaning banished, the result can be a decision with an outcome, holding, and reasoning that is inconsistent with the original meaning of the constitutional text. And lower courts may view the Court’s nonoriginalist decision as foreclosing any further consideration of originalist arguments, not only on the narrow issue actually decided by the Court, but on adjacent issues to which the Court’s reasoning is relevant.
In Part I, we briefly discuss originalism and its rivals. In Part II, we summarize existing party presentation doctrine and explore the many unresolved questions about the shape of the principle. Next, in Part III, we consider the interaction between party presentation and precedent. In Part IV, we articulate an originalist approach to party presentation, including what we see as the first best approach to party presentation—the originalist version of the principle is minimalist—and an originalist approach to precedent shaped by the principle. Finally, in Part V, we apply the framework that we develop to the party presentation in the Supreme Court, the lower federal courts, and state supreme courts—and for appellate advocates, especially repeat players among the Supreme Court bar. There is, of course, a conclusion.
This is a new version of our paper–formerly titled “Originalism and the Party Presentation Principle.” The paper is now in the final stages of the editorial process. There are a substantial number of significant changes. We will post the final version with pagination as soon as it is available.
If readers will permit me a bit of self-promotion, download it while it’s hot!