Outside Publication

Finding The Limits of Equitable Liberality: Reconsidering the Liberal Construction of Pro Se Appellate Briefs, Vermont Law Review Vol. 35


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.