Resource: Sua Sponte Actions in the Appellate Courts: The Gorilla Rule Revisited

This article builds on prior scholarship by arguing that allowing an appellate court to reach out and grant relief not requested, based on arguments not made, both disserves the litigants and exercises a power that appellate courts should be loath to use, and by focusing attention on recent cases which highlight the continuing problem. Part II of this Article discusses the historical development of American appellate procedure, including how sua sponte actions derived from equity rather than the common law. Part III reviews current Supreme Court and state court jurisprudence regarding appellate court sua sponte actions. Part IV considers the negative consequences of appellate court sua sponte actions, examining some particularly striking cases and the due process implications of courts making sua sponte decisions. Part V considers some practical reforms to appellate court procedure, designed to mitigate the negative consequences of sua sponte actions.