Michael T Morley (Harvard University) has posted Avoiding Adversarial Adjudication (Florida State University Law Review, Vol. 40, No. 5, 2014) on SSRN. Here is the abstract:
There are a variety of procedural vehicles through which litigants may seek a substantive court ruling or order that declares or modifies their legal rights and obligations without actually litigating the merits of a case as a whole, or particular issues within the case. These alternatives include defaults, failures to oppose motions for summary judgment, stipulations of law, waivers and forfeitures, stipulations of law, confessions of error, and consent decrees. Courts presently apply different standards in determining whether to accept or allow litigants to take advantage of each of these vehicles for avoiding adversarial adjudication. Because all of these procedural alternatives share the same underlying structural similarity, however, courts should apply a single, consistent, unified standard to all of them.
Article III’s prohibition on hypothetical suits places outer bounds on the range of false factual and legal premises on which a court may base a judgment. Courts should go beyond this constitutional minimum, however, and apply an accuracy-centric approach in deciding whether to issue requested relief when litigants inadvertently or deliberately, expressly or implicitly, seek to have the court avoid considering the merits of a claim, issue, or argument in a case. If the court — based on its background knowledge of the law, experience with similar cases, or independent legal research — harbors doubts about the validity of a litigant’s legal premises or contentions, or believes the parties have overlooked a potentially valid claim, issue, or argument, it should decline to grant the requested relief and direct the litigants to brief the matter.
Adopting an accuracy-centric approach helps courts perform not only their law-declaring function of expounding the law and generating accurate precedents, but their dispute-resolution function, as well. Litigants, the public, and courts themselves have a strong interest in having courts resolve cases, and issues in cases, in accordance with the substance of applicable law, even when they are acting primarily in a dispute-resolution capacity.