In the American adversarial system, appellate courts are supposed to decide the issues that parties present to them. Only in narrow circumstances, such as subject-matter jurisdiction, may courts raise issues on their own motion (i.e., raise issues sua sponte). Yet appellate courts routinely act sua sponte in many areas, explaining it as part of their duty to 'do justice' or 'get the law right.' This practice is in tension with core values of the adversarial system—taking away the parties' control over the litigation, limiting due process, and reducing fairness. In an attempt to mitigate these harms, many courts have adopted the practice of ordering supplemental briefing on issues they raise sua sponte, implying that additional briefing will lead to a full, fair, and adversarial airing of the relevant arguments.
To read this complete article visit Journal of Appellate Practice and Process.
Visit us at mayerbrown.com
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2020. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.
