The Limits of Advocacy

Amanda Frost - America University Washington College of Law

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Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called “issue creation”—that is, raising legal claims and arguments that have been overlooked or ignored by the parties—on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. Yet despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Even some landmark Supreme Court decisions, such as Erie Railroad Co. v. Tompkins1 and Mapp v. Ohio,2 were decided on grounds never raised by the parties, and nearly every term the Supreme Court adds to the questions presented or assigns an amicus to argue an issue that the parties have no interest in discussing. These practices operate mostly under the academic radar, and thus there have been few attempts to theorize deviations from the norm of party presentation.

This Article defends judicial issue creation as an essential means of protecting the judiciary’s role in the constitutional structure. As the third branch of government, federal judges are assigned the task of settling the meaning of disputed questions of law not just for the parties, but for all who must comply with the law. Furthermore, because federal judges operate within a common law system in which the precedent in one case establishes the law for all who follow, it is particularly important that those judges accurately state the meaning of the law. To achieve this end, courts must have the power to look beyond the parties’ arguments when failing to do so would lead to an inaccurate or incomplete description of the law.

Law Pronouncement

Since Marbury v. Madison,3 federal courts have the recognized authority to “say what the law is.”4 If two parties with a stake in the matter disagree over the interpretation of a statute, regulation, or constitutional provision, courts resolve that conflict by publicly stating not only who wins the case, but also what the law means.5

Resolving disputed questions of law is one of the federal judiciary’s essential functions. Although Congress and the president take the lead by enacting statutes and promulgating regulations, their formal role in establishing the meaning of the law ends when courts are asked to determine how a law passed by the political branches applies to a specific case or controversy. Members of Congress may file amicus briefs or publish post-enactment legislative history, but those statements are customarily given no more weight than any other party’s opinion.6 Judicial decisions are not open to revision either by Congress or the president, no matter how strongly the political branches disagree with courts’ conclusions about the meaning of a law.7 The political branches can, of course, override a judicial decision with which they disagree through the constitutional mechanisms for enacting new law. Unless and until they do so, however, judicial pronouncements are the law for all the citizens to follow.

When the parties fail to fully and accurately describe applicable legal standards, the norm against judicial issue creation clashes with the judiciary’s law-pronouncement power. Because judicial decisions are objective statements about the meaning of law, not statements about how the parties subjectively interpret the law, courts must be able to take notice of legal arguments that the parties fail to see. If litigants could constrain courts through their own truncated or inaccurate depictions of the meaning of statutes, constitutional provisions, and the like, they could effectively wrest this power away from the courts, putting federal judges in the impoverished role of picking and choosing from among the litigants’ interpretations of the law, rather than from their own.8

The Interpretive Process

Courts have not only the power to declare the meaning of a law but also the discretion to choose how to interpret it. Neither task should be taken over by nonjudicial actors. To maintain control over the interpretive process, judges must at times step in and add to or alter the parties’ arguments.

For example, if two committed textualist litigants present their divergent views of the plain meaning of a statutory text to an intentionalist judge, that judge can herself explore the legislative history and issue a decision that turns on that history.9 That proposition is relatively uncontroversial, because there is no new issue created, and thus no transgression of the norm against judicial issue creation. But what if the litigants fail to argue that the court must go beyond the plain text of the statute to avoid an absurd result, or neglect to cite another provision of the statute containing similar language that sheds light on the disputed provision,10 or refuse to argue that the court should adopt an interpretation that would avoid a constitutional question?11 The party-presentation principle should give way when the litigants’ interpretive philosophy differs from that of the judge. Otherwise, litigants could force judges to apply the interpretive methodology the litigants prefer.

Judicial Independence

Federal judges are carefully insulated from political pressure so that they can declare the meaning of the law free from outside influence. Judicial independence, and the respect for judicial decisionmaking that accompanies it, would be compromised if courts were required to rule on the law as it is presented to them, rather than as they believe it to be. Life tenure and salary protection ensure that federal judges cannot be threatened or coerced by litigants who want them to ignore specific statutes or to interpret constitutional provisions as the litigants prefer. Yet if courts are not free to engage in issue creation, litigants could accomplish the same results simply by omitting sources, claims, and arguments.

Precedent and the Common Law

The presumption against judicial issue creation is also incompatible with the power of precedent in a common law system. The federal courts of appeals issue decisions that apply not only to the parties before the court, but that also bind all the judges on that court and all the district courts within that circuit. Lower courts have no choice but to obey even wrongheaded decisions of their superiors. Although a court’s obligation to follow its own precedent is not unyielding, stare decisis is nonetheless a hard doctrine to overcome.12 Every circuit court has adopted a rule mandating that a panel cannot overturn the decision of a previous panel absent an intervening decision by the Supreme Court.13 Even those courts with the authority to overrule precedent, such as courts of appeals sitting en banc and the Supreme Court, rarely upset settled law. Precedent that is viewed as mistaken will nonetheless be followed by these courts absent a “special justification.”14

Litigants can undermine the power of precedent in two ways. First, if litigants fail to fairly, completely, and accurately describe the law, judicial opinions may themselves contain flawed statements of law that will bind all who come after. Second, if litigants fail to cite and discuss binding precedent, they may evade its application unless the court raises the precedent sua sponte. In either case, allowing the parties’ incomplete presentations to taint judicial decisions is troubling in a common law system in which precedent controls the results in subsequent litigation.


For all of these reasons, federal courts must have the power to raise issues overlooked or ignored by the parties. Yet when judges exercise that power, they are often criticized for violating the norms of the adversarial system, under which the parties are assigned the task of framing the dispute for a passive decisionmaker who then decides the case on the parties’ terms. The criticism is valid when judges raise new issues unrelated to the litigation or decide cases on new grounds without first obtaining the parties’ views. Issue creation can be reconciled with the central tenets of the adversarial system, however, if judges only raise new legal issues when necessary to preserve the integrity of their law-pronouncement function, and if they are careful to structure the proceedings to preserve the parties’ central role.

Adversarialism requires that the parties have an opportunity for a dialectical exchange on the questions at issue in the case, allowing the judge to avoid becoming an advocate for one party or interest. But it does not demand judicial passivity in the face of litigants’ mischaracterization of legal standards. As long as courts provide an opportunity for the parties to respond to new issues (or allow amici or intervenors to do so when the parties decline), then courts can simultaneously protect their power to pronounce on legal questions and preserve the benefits of the adversarial system.

This Article does not contend that judges should be given the power to set their own agenda—a role for which politically insulated judges are ill suited. Judges should limit issue creation to situations in which the parties’ arguments misstate the law or deprive the court of its preferred interpretive methodology. In these circumstances, issue creation is necessary to prevent litigants from undermining the judiciary’s role in the constitutional structure, and it can be accomplished without compromising the essentially partisan nature of dispute resolution in the United States.


Copyright © 2010 Duke Law Journal.

Amanda Frost is an Associate Professor at the American University Washington College of Law.

This Legal Workshop Editorial is based on the following article: Amanda Frost, The Limits of Advocacy, 59 DUKE L.J. 447 (2009).

  1. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
  2. Mapp v. Ohio, 367 U.S. 643 (1961).
  3. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
  4. Id. at 177.
  5. See 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 . . . .”).
  6. 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.”).
  7. 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).
  8. 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,” Cass Sunstein, Beyond Marbury: The Executive’s Power to Say What the Law Is, 115 YALE L.J. 2580, 2589 (2006).

    Certainly, Chevron grants the executive branch, through agencies, a great deal of authority over what was once solely the judiciary’s domain. But Chevron deference is highly constrained. Deference is granted only when agencies are interpreting a statute 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-and-comment rulemaking and formal adjudication, rather than through informal channels such as letters, guidance documents, or briefs. 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 agencies have been delegated authority by Congress to fill gaps in ambiguous statutes and that the combination of agency expertise and political accountability makes them better suited than courts to do so.

    Therefore, however large a step back Chevron takes from Marbury, it does not suggest that scope of judicial decisions can be limited by the parties’ interpretation of the law. To the contrary, the carefully crafted constraints on Chevron deference expose the flaws in an unyielding rule in favor of party presentation. Such a rule would require courts to adopt interpretations proposed by parties who have not been delegated interpretive authority by Congress, who have no claim to expertise or public accountability, and who cannot demonstrate that their views have been vetted through formal deliberative procedures. Indeed, it would be extremely odd if courts were required to adopt legal positions agreed upon by parties to litigation even as the courts were prohibited from deferring to agency interpretations that did meet all the requirements of Chevron and its progeny. This practice cannot be squared with the judiciary’s constitutional role to state the meaning of contested federal law.

  9. 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).
  10. Cf. United States ex rel. Totten v. Bombardier Corp., 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”).
  11. See, e.g., Boynton v. Virginia, 364 U.S. 454, 457 (1960).
  12. 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.”).
  13. Id. at 1017–18.
  14. For example, in Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court reaffirmed its Miranda decision, concluding there was no “special justification” for overturning a longstanding precedent. Id. at 429. 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.” Id. at 443.

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