Courts routinely choose to explicitly dismiss arguments and issues raised by parties, regardless of their merit, based on unexplained determinations that the briefing was bad. This practice, which I call abandonment by poor presentation, is sometimes justified by practicality, by pointing to federal and local rules, by waiver and forfeiture doctrines, and by the norm of party presentation. None of these justifications hold water. I contend that the real reason judges find abandonment by poor presentation is agenda control: judges rely on the practice as a means of retaining control over how they decide cases. This unexplained, poorly justified, and subjective practice creates a number of problems for litigants and the law. I propose a simple solution: judges should stop finding abandonment by poor presentation. As common as the practice is, it actually serves little purpose and can easily be avoided.
Benjamin D. Raker,
The Ambiguity and Unfairness of Dismissing Bad Writing,
69 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol69/iss1/6