Do courts in a common law system ever make decisions about law without a presented case? In the United States, the Supreme Court does not make a decision about the validity of a law without a specific case presented to them. Are there any examples of common law systems in which a court is able to make a decision without actually having a case at hand?
Yes. In some common law jurisdictions, such as Canada, the United Kingdom and even some U.S. states, the government may under some circumstances refer a legal question to the appropriate Supreme Court (Privy Council in the U.K.) for an advisory opinion. These opinions are non-binding, but have large influence because they are often made by the same judges that would otherwise end up dealing with the question should it occur in a case. One common law country in particular stands out in this field: Ireland. Under Article 26 of the Irish Constitution the President may, with some exceptions, refer a bill to the Supreme Court to test its constitutionality. The referral is optional, but once made, the Supreme Court's decision is binding. The relevant portion: 3 1° In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill. [...] 3° In every other case the President shall sign the Bill as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced. This power was last used successfully in 2004.
Yes Deciding a case on a basis the parties have not raised is a denial of natural justice (or procedural fairness) and invalid. The reason is very simple, the parties have not had the opportunity to produce evidence or make submissions about C or D that might have changed the judge’s mind about them. Notwithstanding, to successfully appeal, the aggrieved party must show there were arguments that could have been raised which could reasonably have altered the outcome. That said, it’s the judge’s courtroom and they can say “That’s interesting but what about C and D?” and then the parties can make submissions about them. They do have to be circumspect and make sure that they do not become one party’s advocate - one party might be well aware of C and D and don’t want them brought up because they damage their case and they are hoping the other party misses that - and then the bloody judge come charging in with his bloody duty to wider interests of justice. Non-judicial decision makers like arbitrators, adjudicators and other tribunals need to be even more circumspect because they generally don’t have a duty to anyone but the parties. Unlike in civil law systems, the role of the judge is to decide the dispute between the parties as a referee, not to determine some objective”truth” as an investigator. To keep things simple: if the plaintiff contends that the light was red and the defendant contends the light was green then, assuming there is no evidence opening the possibility, it is not open to the judge to find that the light was amber. Similarly, if the parties agree that red means go and green means stop, it is not the judge's role to tell the parties they are wrong (I'm sure questions would be asked but if the parties are adamant ...): since there is no dispute over this issue the judge would be wrong to agitate one. Now, a judge is free to apply the law that was argued as a whole - if arguments centred on Section 14 of the Relevant Act 1875 but Section 15 is applicable and germane the judge is not wrong for applying Section 15. However, they are on shakier ground if the bring in Other Slightly Relevant Act 1956.
The Main Question when a court case is decided in Louisiana, can it establish precedent in other states that follow common law? Yes. The court decisions of a sister state are always persuasive authority. This applies even to trial court rulings and rulings from other countries that are not precedents in any U.S. state. Similarly, courts can look to legal treatises and sources like the Restatements of Law that have not been adopted or approved by any public official as persuasive authority. In theory, it would not even be improper for a state court judge in say, Texas, to quote from a Mock Court Brief of a high school student as persuasive authority. This is because the value of a persuasive authority (as opposed to in state binding authority of an appellate court) in states that follow common law, is that the reasoning of the ruling is intrinsically informative and is reliable because it comes from someone learned in the relevant law and familiar with the legal issues in question. Someone could reasonable dispute persuasive authority from Louisiana on the ground that the substantive law rule in Louisiana expressed in its statutes and prior case law, which a Louisiana court is interpreting, is different from the law in the state where the Louisiana court decision is utilized. For example, suppose that Louisiana has not statutorily adopted the equitable doctrine of laches which is a case law doctrine derived from English courts of equity which denies relief to people who make claims who have slept on their rights without taking legal action in a manner prejudicial to the defendant, even if no statutory statute of limitations applies. If a case allowing relief within the statute of limitations in Louisiana where facts justifying the application of the doctrine of laches were present in an Ohio case, it would be fair to argue that the Louisiana precedent should not be followed as persuasive authority, because Louisiana is a state that has not adopted the doctrine of laches, while Ohio is a state that has adopted the doctrine of laches. But really, this means of distinguishing a Louisiana precedent is no different from the way that a precedent from any other state would be distinguished. Louisiana court precedents are not less persuasive on the theory that a court precedent in Louisiana's court system doesn't have the same effect as a court precedent in states with purely common law legal systems. Furthermore, as explained below, while civil law systems in other countries do not afford the same status to appellate court decisions that common law jurisdictions do, Louisiana, in this regard, is closer to the common law system than it is to the civil law system, in any case. Louisiana Law Is A Complex Civil Law And Common Law Hybrid In practice, Louisiana law is more of a hybrid system, than it is a true civil law state (as it is often described as being). The Louisiana Purchase of 1803 actually preceded the adoption of the French Civil Code in 1804, although the French Civil Code had profound influence on Louisiana law prior to it becoming a U.S. state in 1812, and its early years of U.S. statehood when the federal governments role in law making and providing government services was much narrower. I. Sources Of Law Consistent with its civil law heritage, all law in Louisiana must be rooted in statute and can't be purely dependent upon common law case law. But, Its courts, unlike true civil law states, issue appellate decisions that are binding precedents in common law fashion. Unlike true civil law systems, precedent making case law from appellate courts regarding statutory interpretation is essentially the same in Louisiana as in other U.S. states with a common law heritage. Where the statutes of Louisiana provide a hook for legal rights that aren't fully explained, for example, in tort law, Louisiana courts even sometimes look to the Restatements of the Law which purport to set forth in code-like fashion the common law applicable in other states, to guide the gap filling roles of courts in applying its private law statutes. II. Civil Procedure Civil procedure in Louisiana is a mix of the civil legal process and the common law legal process. In civil procedure, Louisiana has some civil law influences, but is a common law civil procedure biased hybrid system. While it is not compelled by the U.S. Constitution, Louisiana has a right to jury trials in many civil law case. Louisiana's overall civil law system is better characterized as a whole as adversarial than inquisitorial, despite residual civil law influences. III. The Legal Profession The ethical duties of lawyers in Louisiana, likewise, now fully track those of lawyers in other U.S. states. Louisiana has almost completely abandoned any trace of the occupational framework for lawyers and the ethical standards for lawyers found in civil law countries that differ from those of U.S. common law jurisdictions. For example, Louisiana does not have the ethical rule for lawyers found in most civil law jurisdictions forbidding lawyers from representing someone in a matter in which a previous law has done work for which the previous lawyer has not be paid. Likewise, Louisiana does not have the strict regulation of lawyer contact with witnesses prior to their presentation of testimony to a court that is found in most civil law jurisdictions but is absent in U.S. common law jurisdictions. Similarly, notaries in Louisiana were originally closer to the civil law model but the role of notaries has eroded in the common law notary direction over time (not necessarily completely however). IV. Private Law The substantive private civil law in Louisiana (i.e. the non-criminal law that can be raised in lawsuits between non-governmental parties such as contract law, tort law, property law, inheritance rights, marital property, guardianship, customary units for real property boundaries, etc.) tends to track the French Civil Code adopted a year after the Louisiana purchase (and the pre-French Civil Code law that applied during French rule), rather than English common law. For example, usufructs exist in Louisiana law but are unknown in common law jurisdictions. Bit by bit, distinctive Louisiana legal concepts such as the &quot;mystic will&quot; have been repealed or fallen into desuetude, however. Until about the 1840s, Louisiana's laws governing slavery and interracial relationships followed the customs and practices established under French rule which were quite different from the practices of the English adopted in the colonial period in the United States. But in the decade or two before slavery was abolished in Louisiana this began to shift markedly in the direction of other southern and for a while Confederate, states in the United States and away from the French model, curtailing greatly, for example, the rights of &quot;free people of color&quot; in the state. This said, however, many provisions of private law that are present in other U.S. states have been adopted wholesale in Louisiana. For example, Louisiana has adopted the Uniform Commercial Code, the Uniform Fraudulent Transfers Act, the Uniform Child Custody Jurisdiction Act, and &quot;no fault&quot; divorce. Many parts of private law, such as the law of union-management relationships and arbitration are governed by federal law in a common law mold. Louisiana has also, in civil law fashion, statutorily codified legal concepts not present in civil law countries like trust law in order to coordinate functionally with trust law in other U.S. states. Likewise, there are many major modern legislative developments in civil law countries generally, and French law, in particular, were not imitated by Louisiana. For example, France has adopted innovated ways to recognize relationships short of marriage that Louisiana has not copied, such as civil solidarity pacts (PACS) and some minimal legal rights associated with cohabitation known in French as a concubine relationship status. V. Criminal Law Criminal law in Louisiana is much closer to the common law adversarial system than the civil law inquisitorial system, for example, in part as a consequence of U.S. Constitutional limitations on state criminal procedure. VI. Public Law Public law in Louisiana (i.e. the law governing the relationship of individuals with the government) almost entirely tracks the common law pattern and not the civil law pattern, in part, due to the influence of U.S. Constitutional law and federal statutes (e.g. 42 U.S.C. § 1983). Footnote On Puerto Rico A Hybrid That Is Primarily A Civil Law System Puerto Rico became in U.S. territory in 1898 in connection with the Spanish-American War, at a time when its civil law institutions were much more developed than those of Louisiana in 1803, has remained Spanish speaking while still subject to U.S. federal law, and is not as integrated into the U.S. legal system as Louisiana and other U.S. states in its current Commonwealth status (which may face another referendum on its status soon under a bipartisan bill passed by the U.S. House on December 15, 2022). As a result, while Puerto Rico must make some concessions to the U.S. Constitution which incorporates common law legal institutions like the right to a jury trial in criminal cases, it is much closer to the European (and in particular, the Spanish) civil law legal system than Louisiana. However, importantly, federal courts in Louisiana operate using the common law based federal rules of procedure, criminal and civil, and apply common law based substantive federal law. Note On Sources This answer is based predominantly on snippets here and there of encounters with Louisiana law, reviews of surveys of state laws in various areas, history books, historical fiction that is well researched with respect to law, new accounts, and other similar sources gathered piecemeal from memory. I'm not an expert in this area and there may be minor inaccuracies that I will correct if I learn of them, but in the land of the blind, the one eye'd man is king, so I'm offering insight into the subject greater than the vast majority of educated lay people and even the vast majority of U.S. lawyers outside Louisiana.
Generally speaking, courts take whatever time they need to write their decision and then release it close to immediately. In cases where a judge believes she has the information she needs, she may rule "from the bench," announcing a decision and entering an order for the parties to comply, and then follow up with a written order later. The research process is fairly open-ended, but legal research databases are pretty advanced, and a good researcher can generally get his hands on the vast majority of what he'll need in very short order. But practically speaking, there are few limits on how long that process takes. A litigant who was growing impatient could seek a writ of procedendo to force a court to move faster, but my experience indicates that most attorneys wouldn't attempt that move unless a decision had been pending for at least a year with no action, which would be unusual.
Appeal proofing decisions is a common practice of trial judges (and even intermediate appellate court judges and state supreme court judges) well known to practitioners and even discussed by law professors in class at times, but I'd have a hard time coming up with a reference where it was discussed. There is probably a law review article that discusses the practice somewhere. It also comes in several versions. One is to make copious findings of fact (especially on credibility) that are hard to reverse on appeal. A judicial finding that someone had an intent to defraud another party based upon his demeanor when he testified about that issue can overcome all sorts of technical objections to a claim in a lawsuit on a more strict liability basis like breach of contract. Another is to give a "soon to lose" party everything he wants procedurally, even when he isn't entitled to it so he can't appeal on procedural grounds. For example, a court might admit otherwise inadmissible evidence over the objection of the other party and then rule against the party seeking to admit that evidence anyway on the merits. Lawyers often assume that this is happening when a judge starts making blatantly incorrect rulings on procedural issues against them repeatedly in an otherwise strong case in a bench trial. A third is to provide an alternative holding that reaches the same conclusion in case for a different legal reason in the event that an appellate court does not agree with the primary holding. A fourth (mostly limited to appellate contexts) is to decide a case on grounds that make the case uninteresting to review on further appeal (e.g. finding that a factual conclusion is supported by evidence in the record, or that an issue wasn't preserved adequately in a trial court) or beyond the jurisdiction of other courts (e.g. deciding a case based upon state law so that the U.S. Supreme Court won't review it).
A judge has the authority to determine what law applies to a case and to instruct the jury accordingly, and also has the authority to determine which evidence is admissible. Presentation of a defense, in practice, involves presentation of evidence supporting a legal theory. In order to be admissible in evidence in an evidentiary hearing or trial, the evidence must be relevant to a legal theory that is in some way connected to the evidence. If no reasonable juror could make a ruling establishing that a legally recognized defense was established based upon the proposed evidence (especially if the proposed evidence is prejudicial to the prosecution case on the basis of reasoning that is not a legally valid defense) it can be excluded. For example, evidence in support of the theory that the defendant murdered the victim because the murder victim raped the defendant's sister six years ago, might very well sway a jury to acquit the defendant. So a defense attorney might want to make this argument. But, this is not a legally recognized justification for murder, so evidence in support of this defense would be excluded as irrelevant by the judge. In federal court, and in states with rules of evidence based upon the federal rules of evidence, the primary legal authority behind this is Rule of Evidence 402: Rule 402. General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible. Some states also have procedural notice requirements for certain kinds of affirmative defenses. For example, if someone is arguing an alibi, a notice of an intent to present this defense must be provided by the defense a certain number of days before trial, so that the prosecution can develop the very different in kind type of evidence needed to rebut that defense, rather than having someone acquitted due to surprise when rebuttal evidence exists but the prosecution doesn't know in advance to locate the necessary witnesses and evidence to rebut this kind of defense.
The main rules in a civil case are the rules of evidence, the rules of civil procedure, and a set of largely unwritten rules governing issues such as the order in which matters are presented in a trial and courtroom conduct. Basically, the rules of evidence are really a subset of a larger set of written and unwritten rules about courtroom conduct the unwritten parts of which are assumed to be known by people using them. Robert's Rules of Order do not apply to courtroom proceedings. The judge also has the "direct contempt" power to summarily punish disrespectful conduct in the courtroom without a trial, with fines or incarceration, even if it wouldn't be a crime outside the courtroom. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. If you are a party asking a question (or more likely an attorney for a party asking a question on behalf of a party) it is not improper to say, "I'm sorry, I couldn't hear you." It is also not generally improper for a non-questioning party to interject and state that they can't hear a witness to a judge. Obtain clarification of a statement. This can be done by a party only when it is the party's turn to cross-examine or redirect as the case may be. A judge can ask for clarification, but a party cannot do so when it is not their turn. Determine or clarify the purpose of an ongoing statement or line of questioning Generally the party not asking a question objects and the court asks the party asking the question to clarify the reason. Sometimes, in a jury trial, the party asked to clarify will say "may we approach the bench" and a private discussion will be held between counsel for both sides and the judge regarding an ongoing issue. Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") Lawyers are expected to know this for the most part without having to ask. Also, usually before the court starts to take evidence, and at breaks, the judge will ask "are there any preliminary matters that need to be addressed?" or "are there any procedural matters that need to be addressed?" and questions such as this can be raised at that time.
The future prospects are negligible, and the present status of such influence is non-existent. In a few cases, you may find an appellate decision citing some statement from a reputable law review. Here is an article that addresses such influences on SCOTUS (which, the authors note, have decreased over time). However, you are describing a wingnut legal theory, and courts do not rely on wingnut legal theories, they rely on what the actual law is.