Finding the Limits of Equitable Liberality: Reconsidering the Liberal Construction of Pro Se Appellate Briefs
38 Pages Posted: 4 Sep 2011
Date Written: June 1, 2011
Abstract
The most basic function of the American state and federal judicial systems is clear: provide appropriate relief on the merits of valid claims. Given the procedural labyrinth and complexities of common law practice, securing such relief on the merits can prove to be quite a challenge for even the best lawyer. Thus, widespread efforts to reduce or even remove arbitrary obstacles from the path of pro se litigants - a class of court-users ill-equipped to handle many of the greatest difficulties of navigating the judicial forum - represent a logical and apparently equitable effort to further the fundamental drive towards merits resolutions. Still, these judicial efforts to assist pro se litigants operate in constant tension with the idea that all litigants are entitled to equal access to the courts and administration of judicial power.
This Article examines a very specific example demonstrating this tension and raising troubling constitutional concerns: the United States Courts of Appeals’ practice of liberally construing pro se briefing to avoid waiver or reach unbriefed arguments while dismissing or denying relief on the similarly situated claims of represented litigants. As implemented in a majority of the circuits, this practice - decoupled from any statutory mandate or rule of general applicability - affords pro se litigants enhanced appellate review without regard to their individual circumstances, sophistication, or reasons for proceeding pro se. Drawing from this examination, this Article explores a variety of options designed to encourage judicial efforts to protect pro se litigants on a more principled basis thereby affording equal protection to all court-users while advancing the goal of producing appropriate resolutions on the merits of valid claims.
Keywords: Liberal Construction, Appeals, Appellate, Appellate Procedure, Pro Se, Due Process, Equal Access
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