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“But No One Argued That: Sua Sponte Decisions on Appeal”

National Foundation for Judicial Excellence By E. King Poor and James E. Goldschmidt

Below is an excerpt:

When appellate courts decide issues on their own, they may undermine the values of our adversary system. Sua sponte decisions need greater consistency to preserve those values.

It happens. It doesn’t happen in every appeal, or even often, but it does happen. Lawyers frame the issues for a reviewing court in their briefs. They present them again at oral argument. Then, months later, the court decides the case based on an issue that neither side ever mentioned.

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