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PLAYING GOD A CRITICAL LOOK AT SUA SPONTE DECISIONS BY APPELLATE

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PLAYING GOD A CRITICAL LOOK AT SUA SPONTE DECISIONS BY APPELLATE

2002] APPELLATE SUA SPONTE DECISIONS 1

    PLAYING GOD: A CRITICAL LOOK AT SUA

    *SPONTE DECISIONS BY APPELLATE COURTS

     *****ADAM A. MILANI AND MICHAEL R. SMITH

I. INTRODUCTION

    II. SUA SPONTE DECISIONS EFFECT ON THE DEVELOPMENT OF THE

    LAW AND INDIVIDUAL PARTIES

    A. Sua Sponte Decisions by Appellate Courts Include Some of the

    Most Far-Reaching Cases in American Law

    1. Erie

    2. Mapp

    B. Mistakes are Made

    III. THREE CRITICISMS OF SUA SPONTE DECISIONS BY APPELLATE

    COURTS

    A. Sua Sponte Decisions by Appellate Courts are Inconsistent

    with Fundamental Principles of Due Process

    1. Cases Addressing the Due Process Implications of Res

     * The title of this Article comes from an anonymous appellate judge who explained to an author why he did not like to decide issues sua sponte.

    We don‘t know enough about them. You’re playing God then because you haven’t had the

    benefit of the lawyers, the judge below, or the clients, or the evidence. You‘re just playing

    God without a record, and you have to assume a certain competence in your counsel. . . . I‘m loath to do it. I have done it, I guess I really don‘t like to do it because it‘s too dangerous.

    There‘s nothing worse than a lawyer being beaten by an assumption that simply is incorrect and wasn‘t raised.

    THOMAS B. MARVELL, APPELLATE COURTS AND LAWYERS: INFORMATION GATHERING IN THE

    ADVERSARY SYSTEM 122 (1978) (emphasis added) (ellipses in original).

     **. ASSISTANT PROFESSOR, MERCER UNIVERSITY SCHOOL OF LAW; J.D., DUKE

    UNIVERSITY; B.A., UNIVERSITY OF NOTRE DAME.

     ***. ASSOCIATE PROFESSOR, MERCER UNIVERSITY SCHOOL OF LAW; J.D., UNIVERSITY OF

    FLORIDA; B.A., FLORIDA STATE UNIVERSITY. PROFESSORS MILANI AND SMITH WOULD LIKE TO

    THANK LINDA EDWARDS AND ROBERT CHAPMAN FOR THEIR ENTHUSIASTIC SUPPORT AND

    THOUGHTFUL COMMENTS ON THIS PROJECT. THANKS ALSO TO JUDITH FISCHER, CINDY ARCHER,

    ROBERTA ROBINSON AND MARCIA MCCORMICK WHO PROVIDED US WITH HELPFUL INSIGHT AND

    IDEAS, AND DEAN LARRY DESSEM WHO SUPPLIED THE RESEARCH FUNDS THAT MADE OUR WORK

    POSSIBLE. ANY ERRORS OF COMMISSION OR OMISSION ARE OUR OWN.

    2 TENNESSEE LAW REVIEW [Vol. 69:XXX

    Judicata

    2. Nelson v. Adams USA, Inc.

    B. Sua Sponte Decisions by Appellate Courts are Inconsistent

    with the Adversary Process

    1. The Adversarial Clash

    2. Neutral and Passive Decision Makers

    3. Party Control of Litigation

    C. Sua Sponte Decisions by Appellate Courts Are an Abuse of

    Judicial Discretion

    RGUMENTS DEFENDING SUA SPONTE DECISIONS ARE IV. A

    UNPERSUASIVE

    V. RECOMMENDATIONS

    A. Appellate Courts that Identify an Issue Sua Sponte Should

    Request Supplemental Briefs and Arguments from Counsel

    1. Supreme Court Authority

    a. Dissents in Mapp and Erie

    b. Trest v. Cain

    c. Brown v. Board of Education.

    2. The Few Cases Justifying Sua Sponte Decisions Emphasize

    that the Parties Were Given an Opportunity to be Heard and

    They Declined

    B. Appellate Courts that Decide a Case Sua Sponte Without

    Hearing from the Parties Should Grant the Losing Party’s

    Request for Rehearing as a Matter of Right

    C. Attorneys in Subsequent Cases Should Argue that Sua Sponte

    Decisions Should, Like Dicta, Be Given Lesser Deference

    1. Dicta is Given Less Deference Because the Issue Was Not

    Fully Considered

    2. Sua Sponte Decisions Also Do Not Fully Consider an Issue

    a. Monell

    b. Church of the Lukumi Babalu Aye

    3. Courts Should Indicate When They Are Issuing a Sua

    Sponte Decision in Their Opinions

    VI. CONCLUSION

    I. INTRODUCTION

2002] APPELLATE SUA SPONTE DECISIONS 3

    The rule that points not argued will not be considered is more

    than just a prudential rule of convenience; its observance, at

    least in the vast majority of cases, distinguishes our adversary 1 system of justice from the inquisitorial one.

    Sound judicial decisionmaking requires ―both a vigorous

    prosecution and a vigorous defense‖ of the issues in dispute,

    and a constitutional rule announced sua sponte is entitled to less

    deference than one addressed on full briefing and argument. . . .

     I think a rule of law unnecessary to the outcome of a case,

    especially one not put into play by the parties, approaches

    without more the sort of ―dicta . . . which may be followed if 2sufficiently persuasive but which are not controlling.‖

    The heart of the American legal system is the adversary process in which trained advocates present the parties‘ facts and arguments to neutral decision makers. The fundamental premise of the adversary process is that these advocates will uncover and present more useful information and arguments to the decision maker than would be developed by a judicial officer acting on his own in an inquisitorial 3system. The adversary process is also said to ―promote[] litigant and 4societal acceptance of decisions rendered by the courts‖ because a

     1. United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring).

     2. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 572-73 (1993) (Souter, J., concurring in part and concurring in the judgment) (citations omitted).

     3. See STEPHAN LANDSMAN, READINGS ON ADVERSARIAL JUSTICE: THE AMERICAN

    APPROACH TO ADJUDICATION 35-39 (1988); Jerold H. Israel, Cornerstones of the Judicial

    Process, KAN. J.L. & PUB. POLY, Spring 1993, at 5; Ellen E. Sward, Values, Ideology and the

    Evolution of the Adversary System, 64 IND. L.J. 301, 316-19 (1989); see also Penson v. Ohio,

    488 U.S. 75, 84 (1988) (―This system is premised on the well-tested principle that truthas well

    as fairness—is ‗best discovered by powerful statements on both sides of the question.‘‖ (citations omitted)); Polk County v. Dodson, 454 U.S. 312, 318 (1981) (―The system assumes that

    adversarial testing will ultimately advance the public interest in truth and fairness.‖); Mackey v. Montrym, 443 U.S. 1, 13 (1979) (―[O]ur legal tradition regards the adversary process as the best means of ascertaining truth and minimizing the risk of error . . . .‖).

     4. LANDSMAN, supra note 3, at 33-34; see also George C. Christie, Objectivity in the Law,

    78 YALE L.J. 1311, 1329 (1969) (―[T]he primary social purpose of the judicial process is deciding

    disputes in a manner that will, upon reflection, permit the loser as well as the winner to feel that

4 TENNESSEE LAW REVIEW [Vol. 69:XXX

    party who ―is intimately involved in the adjudicatory process and feels that he has been given a fair opportunity to present his case . . . is likely 5 Indeed, the Joint to accept the results whether favorable or not.‖

    Conference on Responsibility of the American Bar Association and the Association of American Law Schools stated that ―[i]n a very real sense it may be said that the integrity of the adjudicative process itself 6depends upon the participation of the advocate.‖ Accordingly, most

    lawyers probably never think about the possibility that a court will decide a case on an issue that the court itself raises and which was neither briefed nor argued by the parties. But we all know it happens.

     We even have a name for such a decision: sua sponte.

    Translated from its original Latin, ―sua sponte‖ means ―on his or its 7own motion.‖ In the legal setting, sua sponte describes a decision or 8action undertaken by a court on its own motion as opposed to an

    action or decision done in response to a party‘s request or argument. As such, the concept of ―sua sponte‖ is an important exception to two basic principles of our adversary system of adjudication: (1) that the parties will control the litigation, and (2) that the decision maker will be 9neutral and passive. One of the clearest manifestations of these

    principles is that the parties themselves, not the decision maker, determine what issues will be adjudicated.

    In the context of judicial decision making, a court deviates from its traditional ―passive‖ role in the adjudicatory process when it raises an issue not identified by the parties but which it deems relevant to the legal controversy before it. Nonetheless, raising issues sua sponte is not 10an uncommon practice. In fact, legal scholars have identified several

he has been fairly treated.‖).

     5. LANDSMAN, supra note 3, at 34.

     6. Professional Responsibility: Report of the Joint Conference of the American Bar Association and the Association of American Law Schools, 44 A.B.A. J. 1159, 1160 (1958)

    [hereinafter Professional Responsibility].

     7. BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 838 (2d ed. 1995).

     8. BLACKS LAW DICTIONARY 1424 (7th ed. 1999); see also ROBERT J. MARTINEAU,

    MODERN APPELLATE PRACTICE: FEDERAL AND STATE CIVIL APPEALS 40 (1983).

     9. E.g., LANDSMAN, supra note 3, at 2-4.

     10. One study of 112 decisions issued by a state supreme court during a one-year period showed that 16 of the opinions ruled on issues not raised by the parties. THOMAS B. MARVELL,

    APPELLATE COURTS AND LAWYERS: INFORMATION GATHERING IN THE ADVERSARY SYSTEM 122

    (1978). But see Eric D. Miller, Comment, Should Courts Consider 18 U.S.C. ? 3501 Sua

    Sponte?, 65 U. CHI. L. REV. 1029, 1049 (1998) (―[I]t is unusual for courts to consider issues sua

2002] APPELLATE SUA SPONTE DECISIONS 5

    kinds of issues that are commonly raised by courts on their own. First,

     both trial and appellate courts often raise jurisdictional issues such as 11 standing, subject matter jurisdiction, and mootness sua sponte.

    sponte [and] rarer still when the issue is not jurisdictional.‖). Despite the frequency with which appellate courts raise issues sua sponte, few courts expressly state that they are doing so in their opinions. See MARVELL, supra, at 122, 328.

     11. MARVELL, supra note 10, at 124. Because of the constitutional limitations on their jurisdiction, federal courts are obligated to examine whether they have subject matter jurisdiction in a case. See, e.g., FED. R. CIV. P. 12(h)(3) (―Whenever it appears by suggestion of the parties

    or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.‖(emphasis added)); Juidice v. Vail, 430 U.S. 327, 331 (1977) (―Although raised by

    neither of the parties, we are first obliged to examine the standing of appellees, as a matter of the case-or-controversy requirement associated with Art. III . . . .‖); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (noting that ―we are obliged to inquire sua sponte

    whenever a doubt arises as to the existence of federal jurisdiction.‖); Mansfeld, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 382 (1884) (noting the existence of an ―inflexible‖ rule that ―without exception‖ requires the Court, on its own motion, to determine if jurisdiction is lacking).

    Two types of jurisdictional issues are raised sua sponte. First, basic jurisdictional requirements, such as diverse citizenship or the existence of a federal question, may be lacking. See, e.g., Florida v. Thomas, 532 U.S. 774 (2001) (dismissing certiorari for want of jurisdiction because the case did not involve a final judgment or decree of state‘s highest court as required by 28 U.S.C. ? 1257(a)); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 154 (1908) (finding no federal question); Mansfeld, Coldwater & Lake Michigan Ry. Co., 111 U.S. at 381

    (finding no diversity). Second, there may be no ―case or controversy‖ between adverse litigants

    as required under U.S. Const., art. III, ? 2. See, e.g., Reg‘l Rail Reorganization Act Cases, 419

    U.S. 102, 138 (1974) (―[B]ecause issues of ripeness involve, at least in part, the existence of a live ‗Case or Controversy,‘ we cannot rely upon concessions of the parties and must determine

    whether the issues are ripe for decision in the ‗Case or Controversy‘ sense.‖ (footnote omitted));

     Nashville, Chattanooga & St. Louis Ry. v Wallace, 288 U.S. 249, 260-62 (1933) (declining to hear a declaratory judgment action where the plaintiffs sought to invalidate a statute but did not allege that they had done or contemplated doing any of the acts prohibited by it).

    Although issues of mootness, ripeness, standing and appealability are frequently identified as jurisdictional, the decision to raise them sua sponte is also often based on prudential considerations. For example, courts are reluctant to determine whether parties are entitled to injunctive relief from administrative regulations unless the issue ―arise[s] in the context of a

    controversy ‗ripe‘ for judicial resolution‖ because the regulation‘s effects have been ―felt in a concrete way by the challenging parties.‖ Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 (1993) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)). The Court stated ―Even

    when a ripeness question in a particular case is prudential, we may raise it on our own motion, and ‗cannot be bound by the wishes of the parties.‘‖ Id. at 57 n.18 (quoting Reg’l Rail

    Reorganization Act Cases, 419 U.S. at 138); see also Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 122 S. Ct. 511, 514 (2001) (stating that a court is obliged to consider standing sua sponte even if the parties have not raised the issue); United States v. Hays, 515 U.S. 737, 742 (1995) (same).

    Another principle often invoked for raising an issue sua sponte is that courts should decide cases on non-constitutional grounds whenever possible. See, e.g., Reg’l Rail Reorganization Act

6 TENNESSEE LAW REVIEW [Vol. 69:XXX

     Second, appellate courts may decide sua sponte ―to consider a change in the controlling legal rule that had been accepted by the parties 12 In these situations, the courts address the and the trial court.‖

    sufficiency or legitimacy of the controlling law even though neither party requested it. Third, appellate courts sometimes raise an issue concerning an error committed by the lower court that the appellant did 13not identify.

    Cases, 419 U.S. at 138 (―[T]o the extent that questions of ripeness involve the exercise of judicial restraint from unnecessary decision of constitutional issues, the Court must determine whether to exercise that restraint and cannot be bound by the wishes of the parties.‖ (footnote omitted));

    Boynton v. Virginia, 364 U.S. 454 (1960) (deciding the case on statutory grounds even though the petition for certiorari presented only a constitutional question); see also Ashwander v. T.V.A.,

    297 U.S. 288, 346 (1936) (Brandeis, J., concurring) (explaining how ―[t]he Court developed, for

    its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision‖); Lisa A. Kloppenberg, Avoiding Constitutional Questions, 35 B.C. L. REV. 1003

    (1994) (analyzing the historical development and implementation of, and the justification for, the ―last resort rule‖).

     12. MARTINEAU, supra note 8, at 40; see also MARVELL, supra note 10, at 125. For

    example, one study showed that appellate courts raise issues not identified by the parties when the judges are engaging in their ―lawmaking function.‖ One author explains, ―Case-by-case

    adjudication can be a slow and an imperfect vehicle when developing the law, and judges may wish to cure quickly what they see as problems with the present law.‖ MARVELL, supra note 10,

    at 125.

     13. MARTINEAU, supra note 8, at 40. One scholar has noted that appellate courts raise issues not identified by the parties when the judges believe that failing to do so will result in an ―injustice.‖ MARVELL, supra note 10, at 125. The concern about ―injustice‖ is most commonly

    demonstrated when courts state they are deciding an issue not raised by the parties because there is evidence of ―plain error.‖ See, e.g., United States v. Gonzalez, 259 F.3d 355, 359 (5th Cir.

    2001) (―We may raise an issue sua sponte ‗even though it is not assigned or specified,‘ when

    ‗plain error is apparent. . . . [P]lain error . . . is defined as ‗(1) an error; (2) that is clear or plain;

    (3) that affects the defendant‘s substantial rights; and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings.‘‖ (citation omitted)). The Supreme Court stated,

    The Court has ―the power to notice a ‗plain error‘ though it is not assigned or specified.‖ ―In

    exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.‖

    Silber v. United States, 370 U.S. 717, 718 (1962) (citations omitted); see also Sutton v. State

    776 A.2d 47, 63 (Md. Ct. Spec. App. 2001) (―[A]n appellate court may recognize sua sponte

    plain error, that is, error which vitally affects a defendant‘s right to a fair and impartial trial.‖); Fed. R. Crim. P. 52(b) (―Plain errors or defects affecting substantial rights may be noticed although

2002] APPELLATE SUA SPONTE DECISIONS 7

    Much has been written on whether courts can or should raise 14 This Article, however, assumes that courts certain issues sua sponte.

    do have the authority to raise issues sua sponte and focuses instead on a different aspect of the sua sponte dilemmathe process of deciding

    issues that courts have identified on their own.

    Once a court raises an issue sua sponte, the court can go about deciding it in one of two ways. First, it can involve the parties and request that they submit briefs on the issue to assist the court in reaching a decision. In this context, while the issue may be raised sua sponte, the decision on the issue is made in accordance with principles and traditions of the adversarial system. Alternatively, the court can decide the issue on its own without input from the parties. In this context, the issue is not only raised sua sponte, but is also decided sua 15sponte. This Article‘s thesis is that the proper approach to deciding sua sponte issues is the former approachthe approach that involves

    the parties in the decision-making process.

    As the title suggests, this Article is limited to a critique of sua sponte decision making by appellate courts. While both trial and

    appellate courts raise and decide issues sua sponte, this Article focuses only on the latter. This limitation is more a matter of expedience than 16of relative importance. Many of the concerns expressed in this Article

they were not brought to the attention of the court..‖)

     14. For recent articles discussing whether courts should raise specific issues sua sponte, see,

    for example, F. Ryan Keith, Note, Must Courts Raise the Eleventh Amendment Sua Sponte?:

    The Jurisdictional Difficulty of State Sovereign Immunity, 56 WASH. & LEE L. REV. 1037 (1999);

    Michelle Lawner, Comment, Why Federal Courts Should Be Required to Consider State

    Sovereign Immunity Sua Sponte, 66 U. CHI. L. REV. 1261 (1999); Jeffrey C. Metzcar, Note,

    Raising the Defense of Procedural Default Sua Sponte: Who Will Enforce the Great Writ of Liberty?, 50 CASE W. RES. L. REV. 869 (2000).

     15. Bryan Garner, an expert on word usage in legal writing, states that the phrase ―sua

    sponte‖ refers to how an issue is raised and suggests that it is not proper to use the phrase ―sua sponte‖ to refer to how an issue was decided. GARNER, supra note 7, at 838. Despite Garner‘s

    admonishment, we use the phrase ―sua sponte decision‖ in this Article to refer to situations in which an issue was not only raised by the court but was also decided by the court alone, without the input of the parties.

     16. Some would argue that the topic of sua sponte decision making by appellate courts is more important than the topic of sua sponte decision making by trial courts because, as we will see, sua sponte decisions by appellate courts can have far-reaching consequences on the substantive law in this country. See infra notes 28 to 64 and accompanying text. Sua sponte decisions by trial courts, on the other hand, rarely have an impact beyond the specific parties involved. This Article‘s limited focus, however, was not based on this reasoning. The criticisms expressed in this

8 TENNESSEE LAW REVIEW [Vol. 69:XXX

    regarding sua sponte decision making would apply with equal force to both trial and appellate courts, but there are a number of concerns that 17 Rather than addressing these are unique to one or the other.

    differences, this Article excludes a discussion of trial courts and focuses only on the procedure by which appellate courts should decide issues raised sua sponte. In the end, we conclude that it is both illegal and imprudent for appellate courts to ―play God‖ and decide such issues without input from the parties who will be most directly affected by the courts‘ decisions.

    Part II of the Article discusses the effect of sua sponte decisions by appellate courts on both the development of the law and on individual

    Article focus primarily on the rights of individual parties and on the legitimacy of the adversarial system in general, rather than on the impact that sua sponte decisions have on substantive law. These criticisms apply with equal force to the sua sponte decisions of both appellate and trial courts.

     17. One of the main differences between sua sponte decision making by trial courts and sua sponte decision making by appellate courts is that there is substantially more case law addressing the propriety of trial courts raising and deciding issues on their own than there is case law addressing the propriety of such conduct on the part of appellate courts. In fact, numerous cases exist addressing the propriety of a trial court‘s sua sponte dismissal of a case without giving the

    plaintiff either notice or an opportunity to be heard. Such decisions are ―disfavored in federal practice‖ but ―[i]f it is crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile, then a sua sponte dismissal may stand.‖ Gonzalez-Gonzalez v. United

    States, 257 F.3d 31, 36-37 (1st Cir. 2001); see also Neitzke v. Williams, 490 U.S. 319, 327 (1989)

    (explaining that sua sponte dismissal under habeas corpus statute is warranted only if a complaint is ―based on an indisputably meritless legal theory . . . [or is] clearly baseless‖); Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (―[D]ismissal . . . without affording the plaintiff notice or an opportunity to amend is proper only ‗when it is ‗patently obvious‘ that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.‘‖); Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371, 377 (D.C. Cir. 2000) (―[A] sua sponte

    dismissal for failure to state a claim without leave to amend is reversible error unless ‗the claimant cannot possibly win relief.‘‖); Clorox Co. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000) (emphasizing that considerations of ―basic fairness,‖ as well as ―sound prudential reasons,‖ counsel against most uses of the power to dismiss cases sua sponte). But see Jefferson

    Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524, 527 (11th Cir. 1983). The court stated:

    Even if its claim ultimately has no merit, a party who brings a claim in good faith has a due

    process right to litigate that claim . . . . The order . . . sua sponte dismissing the case failed to

    give Wometco its due process rights to file a written response, present its arguments at a hearing, and amend its complaint.‖

    Id. As we will see later in this Article, there is a paucity of case law addressing the propriety of

    appellate courts deciding issues without the input of the parties.

2002] APPELLATE SUA SPONTE DECISIONS 9

    parties. Part III then makes three criticisms of such decisions. First, the decisions are inconsistent with the fundamental principles of due process that a party should have notice of and the opportunity to be 18heard on the determinative issue in the case. Second, sua sponte

    decisions by appellate courts are also inconsistent with the American judicial system‘s reliance on the adversary process because they are

    contrary to its (1) central premise that the adversarial clash provides a 19court with the best arguments and analysis on an issue, (2) emphasis 20on neutral and passive decision makers, and (3) commitment to party 21presentation of evidence and arguments. Finally, sua sponte decisions 22by appellate courts are an abuse of judicial discretion.

    Part IV of the Article explains why arguments defending sua sponte 23decisions are unpersuasive. Part V then makes three

    recommendations on how appellate courts can avoid the problems with sua sponte decisions and what they and future litigants should do if a court still chooses to issue such a decision. First, when appellate courts identify an issue not raised by the litigants, they should order supplemental briefing as a matter of course, so that the parties have an 24opportunity to be heard on the issue. Second, if an appellate court

    chooses to decide a case on an issue that it raised without hearing from the parties, it should grant the losing party‘s request for rehearing as a 25matter of right because the failure to do so violates due process.

    Third, if a court chooses not to grant a rehearing, attorneys in subsequent cases should argue that the sua sponte decision should, like dicta, be given lesser deference as precedent because a court cannot 26fully consider an issue without briefing and argument from the parties.

     This recommendation will be difficult to put into practice in many cases, however, because courts often do not indicate whether they are deciding a case on an issue raised sua sponte. Accordingly, appellate courts should identify when they are issuing a sua sponte decision and,

     18. See infra notes 90 to 137 and accompanying text.

     19. See infra notes 143 to 182 and accompanying text.

     20. See infra notes 183 to 198 and accompanying text.

     21. See infra notes 199 to 207 and accompanying text.

     22. See infra notes 208 to 229 and accompanying text.

     23. See infra notes 230 to 252 and accompanying text.

     24. See infra notes 253 to 299 and accompanying text.

     25. See infra notes 300 to 342 and accompanying text.

     26. See infra notes 343 to 346 and accompanying text.

10 TENNESSEE LAW REVIEW [Vol. 69:XXX

if they fail to do so, dissenting or concurring judges and justices should 27 indicate this in their opinions.

II. SUA SPONTE DECISIONS EFFECT ON THE DEVELOPMENT OF THE LAW

    AND INDIVIDUAL PARTIES

    A. Sua Sponte Decisions by Appellate Courts Include Some of the

    Most Far-Reaching Cases in American Law

    The impact of sua sponte decisions can be far-reaching. Indeed, two of the most significant cases in American civil procedure and 2829criminal procedureErie R.R. Co. v. Tompkins and Mapp v. Ohio,

     27. See infra notes __ to __ and accompanying text.

     28. 304 U.S. 64 (1938). See, e.g., JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE 200

    (3d ed. 1999) (referring to Erie as ―one of the most important cases at law in American legal history.‖ (footnote omitted)); Bradford R. Clark, Separation of Powers as a Safeguard of

    Federalism, 79 TEX. L. REV. 1321, 1412 (2001) (stating that Erie ―represents perhaps the most

    significant effort by the Supreme Court to prevent judicial lawmaking and uphold federal lawmaking procedures.‖); Stephen Gardbaum, New Deal Constitutionalism and the

    Unshackling of the States, 64 U. CHI. L. REV. 483, 551 (1997). The article states,

    Probably no single decision in the whole of Anglo-American legal history ever

    overturned so many prior decisions at a single stroke as Erie . . . . Overnight, whole

    treatises were rendered obsolete.‖ In abolishing the category of federal law that these

    treatises expounded, Erie reallocated lawmaking powers between state and nation,

    enhancing the scope and impact of state law as declared by state courts. Id. (quoting HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS

    IN THE MAKING AND APPLICATION OF LAW 1338-39 (William N. Eskridge, Jr. and Philip P. Frickey, eds. 1994)) (ellipsis in original); see also Frank I. Michelman, Property, Federalism, and

    Jurisprudence: A Comment on Lucas and Judicial Conservatism, 35 WM. & MARY L. REV. 301,

    319 (1993) (stating that Erie was the ―founding document of modern American judicial federalism . . . .‖).

     29. 367 U.S. 643 (1961). See, e.g., Earl C. Dudley, Jr., Terry v. Ohio, the Warren Court,

    and the Fourth Amendment: A Law Clerk’s Perspective, 72 ST. JOHNS L. REV. 891, 898 (1998)

    (describing Mapp as ―the opening move in the incorporation project‖—the incorporation of the

    Bill of Rights against the States through the Due Process Clause of the Fourteenth Amendment); David A. Harris, Particularized Suspicion, Categorical Judgments: Supreme Court Rhetoric Versus Lower Court Reality Under Terry v. Ohio, 72 ST. JOHNS L. REV. 975, 977 (1998). The

    author states that

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