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Can a judge in the United States decide a case based on their own legal knowledge, using some legal theory or argument that was not presented by either side in the case, which neither side therefore had the opportunity to challenge? In other words, could a judge decide a case in a way that neither side argued for? Are there any important cases where this has happened?

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    The short answer is that this is a permitted but disfavored practice.
    – bdb484
    Apr 23 at 1:55
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    The risk is that judges may be unaware of relevant laws if they have not been argued before them. In a UK House of Lords case (so no further appeal) in 1985 about ownership of the Trustee Savings Bank, one side argued the savers owned it and the other side argued that nobody owned the TSB. Their Lordships decided the TSB was State property but when doing so appeared unaware of 1976 legislation saying explicitly that TSB property "shall not be regarded as property of or property held on behalf of the Crown" since nobody had been asked about this and so did not draw attention to it.
    – Henry
    Apr 23 at 10:53
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    @Henry Presumably that would be grounds to move to reconsider or appeal.
    – Barmar
    Apr 23 at 14:15
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    @Barmar The point of a supreme court is that its decision is final and cannot be appealed. A press story on the case at the time illustrated the confusion.
    – Henry
    Apr 23 at 14:35
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    I'd say it happens nearly all the time in small claims courts, where neither party has much experience with the law. Same with traffic and municipal courts.
    – user71659
    Apr 23 at 17:06

2 Answers 2

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Can a judge in the United States decide a case based on their own legal knowledge, using some legal theory or argument that was not presented by either side in the case,

Yes.

which neither side therefore had the opportunity to challenge?

In theory, this can be problematic and the better practice is to ask the parties to brief a new issues the court wants the parties to consider before ruling.

But since motions to reconsider filed promptly after a judge rules are allowed in most courts, a true denial of an opportunity to challenge is fairly rare.

Mostly, the harm involves denying the parties an opportunity to preserve legal issues for appeal, which motions to reconsider can address. But of course, if the judge's ruling was legally correct, the appeal would fail anyway.

In other words, could a judge decide a case in a way that neither side argued for?

Yes.

Are there any important cases where this has happened?

Yes.

I'll try to think of some examples of high profile cases where it has happened and cite to them. I can recall, for example, that this happened in some SCOTUS cases on jurisdiction and pleading rules, although it isn't that rare in the appellate context either.

It has also happened in a fair share of cases I've personally litigated. It probably happens at least once every year or two in a busy litigation practice.

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    almost all SCOTUS cases end up citing a lot of stuff that is not mentioned in court and often even never refer to any item of what the people did answer in court, but SCOTUS does run an inquisitive system pretty much.
    – Trish
    Apr 23 at 11:13
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    @Trish It isn't quite that extreme. Usually, SCOTUS briefing focuses on a particular line of leading cases that are analyzed by both parties. Usually, when SCOTUS discusses legal authorities beyond the parties' briefs, it is discussing something that was raised in an amicus brief. SCOTUS does, with some frequency, resolve cases in ways that neither party suggested. But it would be an overstatement to suggest that it was inquisitorial. It happen in SCOTUS, maybe more than other courts, but it isn't terribly common.
    – ohwilleke
    Apr 23 at 16:47
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    Here's an example....The Eleventh Circuit found that under Cannon "the district court stepped in with its own reasoning" multiple times to argue in favor of Trump, sometimes even taking positions that Trump did not argue before the appeals court. en.wikipedia.org/wiki/Aileen_Cannon Apr 23 at 18:03
  • I know nothing about what was actually argued in the case, but I'd expect Marbury v. Madison to be an important case where this happened. After all, since the case established that the judiciary could strike down laws as unconstitutional, I'm guessing neither side knew it was a thing they could ask for.
    – jwodder
    Apr 25 at 2:21
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    @jwodder Judicial review was contemplated by many, if not most, of the Founders.
    – ohwilleke
    Apr 25 at 10:05
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Courts are bound to decide on the basis of the evidence introduced into the trial. This limits their creativity: The parties usually are aware of the legal implications of the evidence and bring the corresponding arguments. If the judge sees something both parties are missing, he or she will usually start asking pointed questions which alert the parties. It would be odd to make a "secret" and lone decision without hearing arguments about its merits, and a controversial surprise decision would likely not survive an appeal.

The situation is somewhat different with the Supreme Court because they interpret the slow-changing constitution in a fast-changing world. The Supreme Court has also considerable and unusual freedom because there is no appeals court; any decision it delivers stands. Obviously, its interpretation of the constitution has changed over the centuries, but usually as a result of being asked by one of the parties.

On occasion, though, the Supreme Court has been accused of overreach, from both sides of the aisle. Of particular interest here are cases where the decision went further than the interested party actually requested. This paper discusses four such rulings. I believe that the introduction describes your scenario (emphasis by me):

When the Court decides its own questions, rather than those presented by the parties, it does so without the benefit of a record created below on the question, without the opinions of lower court judges, and sometimes without the briefing of the issue by the parties or amici.

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