It seems that often statutes are binding on courts even if neither party is aware of our calls the court’s attention to them. They will proactively introduce the relevant provisions into the equation of the case and apply them to it to often alter the outcome of their ruling. Furthermore sometimes the judicial procedural rules, processes, and official forms are crafted specially to account for certain provisions within the statutes.

However, while case law is seemingly in principle just as much “law” as statutes are, and courts are fully bound by the principle of stare decisis, I have never heard of official court forms being updated to reflect even massively influential landmark case rulings.

And if one or more of these precedent cases are seen to be relevant to that sub judice and cited as authorities by one of the parties to a case, then the court is bound to consider and honour its implications. Yet that are countless myriad such cases all of which may have some arguable shade of relevance to any given present case. What if there is one that has a massive impact on the current case at hand and yet neither parties’ solicitors had come across it in their research and so neither had presented it to the court or relied upon it in their submissions? Does the court generally do its own research of this type or not? And, irrespective of that, suppose that no research was necessary and that the judge deliberating on the matter had happened to be familiar from his own past experience with a relevant case precedent that might fundamentally alter the outcome of this one. Is he either permitted or expected to consider and cite it in his ruling?

In any event, the two aspects of this question, which I imagine as merely two different distinct angles of the same fundamental question, are:

Can courts be expected to consider precedent case law authorities that are not presented to them by any of the parties?

And if they don’t, but some such precedent has the effect of causing the court’s ruling to be wrong by violating the imperative of stare decisis, then may this constitute valid and compelling grounds for appeal if the arguments weren’t presented in submissions in the first place?

4 Answers 4


Legal systems that derive from English law are generally "adversarial", which means that the courts rely on the party that would most benefit from something to be the one to do it. The thinking is that this properly aligns incentives.

Systems derived from Napoleonic law are more open to the idea of a neutral party taking the lead.


Can courts be expected to proactively research and have regard to relevant case precedents?

Courts in the U.S. are allowed to proactively research the law, including the case law, in reaching their decisions, and frequently do so when the parties have not provided satisfactory legal authority that is on point to resolve a dispute.

But a party can't rely upon or expect a court to do so. In U.S. law, if a party fails to make a legal argument at trial, that argument can't be raised for the first time on appeal by the person seeking to change the trial court's ruling on appeal, even if the argument not made would be a winning legal argument and the correct legal resolution of the question.

  • Is the "no new argument on appeal" rule applied so inflexibly? That principle exists here in Australia, but would not be applied to a decision which is demonstrably incorrect because of ignorance of binding case (or statute) law – a fortiori where the party who should have identified the applicable law was unrepresented. More commonly, the principle would be used to dismiss an appeal that raised new factual arguments.
    – sjy
    Commented Sep 28, 2023 at 1:21
  • @sjy There are some U.S. law exceptions to the "no new argument on appeal rule" but it is applied rather inflexibly. "Plain error" is one exception, mostly in criminal cases and used sparingly. Someone defending the judgment can raise any new argument that supports the judgment on appeal. "Structural error" (too complicated to explain in a comment but very rare) and "lack of subject matter jurisdiction" (including lack of standing) are two of the other main exceptions.
    – ohwilleke
    Commented Sep 28, 2023 at 2:47
  • 1
    I don't recall the details, but I remember reading about a case where the counsels for both sides were failing to cite a particular precedent that was very relevant to the case, so the judge issued an order asking for submissions on how that precedent affected the current case. That is, the judge didn't do the research himself, but instructed the lawyers arguing the case to do it. Is that something that happens often enough that there's a name for this kind of court order?
    – kaya3
    Commented Oct 1, 2023 at 13:21
  • @kaya3 It does happen now and then. I've had that happen maybe half a dozen times in a quarter century. So far as I know, there isn't a special name for that kind of order, but maybe that's just my lack of knowledge.
    – ohwilleke
    Commented Oct 1, 2023 at 17:10

The courts are expected to not favor one side over another, they are supposed to treat both sides equally. Therefore they weigh all arguments set before them equally, and do not spontaneously do supplementary research that favors one side over the other. The courts (and everyone else in the jurisdiction) are expected to know what the law is, therefore if one side advances a legal claim (e.g. "It was held in Smith v. Smith that Q is the case") which is not challenged, they are expected to know whether Q is in fact the case.

We certainly see the results of errors of legal judgment on a regular basis, when a higher court overturns a lower court's ruling because it hinges on a legally-incorrect position – Q is false, not true, as determined by relevant case law. If the trial judge rules / acts incorrectly, the ruling / action may be overturned because the judge is expected to evaluate the correctness of the argument (responsibility for legal error falls on the judge, not the attorney who suggests the argument). An attorney can suggest a legal reason for a particular action, but only the judge officially acts on and therefore takes responsibility for the action. Like the rest of us, the judge is presumed to be legally omniscient.

  • Does this presumption of omniscience extend equally to presumption of knowledge over case law as to that of knowledge over statute law? Commented Sep 26, 2023 at 23:04
  • 2
    It even applies to you. The principle is that ignorance of the law is no excuse; it isn't that "ignorance of statutes is no excuse, but ignorance of case law is an excuse".
    – user6726
    Commented Sep 26, 2023 at 23:33
  • ok, very well put. Commented Sep 26, 2023 at 23:38


A court must get the law right even if their attention was not drawn to it by the parties. However, one of the other things the court must do is afford the parties procedural fairness.

So, a judge can get it wrong by:

  1. Not knowing the law. Now, judges spend a lot of time keeping up with the current state of the law, particularly in areas where they typically operate - a judge on the construction list is extremely unlikely not to be current with construction law but might not be completely up to date on payroll tax law. Notwithstanding, sometimes mistakes are made.
  2. Knowing the law. The correct procedure when the judge is aware of a case which the parties have not raised is to ask for the parties to make submissions on the case the judge is thinking about. If the judge doesn’t do this, makes a decision, and there are theoretical submissions that might have been made which might have changed the judge’s position, then the judge has denied the parties natural justice.

If the judge makes either type of error in a criminal case and that leads to a conviction by the jury, then this is appealable notwithstanding the fact that the prosecution or the defence should have raised it. This is because not raising it is arguably misconduct by the government or inadequate council by the defence.

In a civil trial, the first type of error is too bad - the parties are entitled to run their case however they like and if they didn’t raise a particular case, that will be treated as a tactical decision by them. The second type of error is appealable as the decision that was made was based on a legal position the parties did not run. If there were arguments that could have been put to the judge that might reasonably have led them to change their mind, and that change of mind would materially affect the outcome, then the judgement should be overturned.

  • U.S. courts only rarely invoke (2) and I've never seen a case press that as a ground for an appeal, although a party could move for a reconsideration or rehearing if they think that the judge gets it wrong on a case not offered by either party. Also, I don't know of any U.S. trial court that is so specialized that it has a "construction list" - the most specialized trial court of general jurisdiction I've seen breaks it into civil, criminal, and domestic (some have a single judge designated for probate cases and fewer but some have a single judge designed for water law cases).
    – ohwilleke
    Commented Oct 1, 2023 at 17:15

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .