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109 Cornell L. Rev. Online 1 (2024)

handle is hein.journals/clro109 and id is 1 raw text is: ESSAY A COMMON LAW FOR THE AGE OF AMICI: HOW THE PARTY-PRESENTATION PRINCIPLE CAN HELP IDENTIFY BINDING PRECEDENT David S. Coalet INTRODUCTION............................................................... 1 I. DICTA AND HOLDING ............................................. 2 II. THE PARTY-PRESENTATION PRINCIPLE ..................... 4 III. DICTA, PARTY PRESENTATION, AND AMICI ................ 6 C ONCLUSION ............................................................... 11 INTRODUCTION Two recent Supreme Court cases suggest an additional dimension for the traditional test that distinguishes dicta from holding. In the first, United States v. Sineneng-Smith,' the Ninth Circuit reversed a criminal conviction based on arguments made by amici appointed by that court. The Supreme Court then reversed 9-0, holding that the Ninth Circuit's handling of the case violated the party-presentation principle-the concept that courts rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.2 In the second, Dobbs v. Jackson Women's Health, one reason given by the Supreme Court for overruling Roe v. Wade3 was that Roe's trimester framework was never raised by any party in briefing that case.4 This Essay examines the connection between those two statements. It concludes that the party-presentation principle can provide useful insight for the process of distinguishing t Partner, Lynn Pinker Hurst & Schwegmann, LLP, Dallas, Texas. The title acknowledges GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982). The author thanks Kay Ridenour for her expert assistance. 1 140 S. Ct. 1575 (2020). 2 Id. at 1579. 3 410 U.S. 113 (1973). 4 142 S. Ct. 2228, 2266 (2022). 1

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