Vanderbilt Law Review

First Page



One aspect of the appellate process that most bedevils judges and lawyers occurs when a party attempts to raise an issue in the appellate court that it did not present to the trial court. This question creates problems for the following reasons: (1) the general rule against considering new issues on appeal; (2) the perception that it is unfair to the appellant if the new issue is not considered, yet it is unfair to the appellee if the new issue is considered; and (3) the failure or inability of appellate courts to articulate any principled basis for determining when and under what circumstances a new issue will be considered. As a result, it is almost impossible to predict in a particular case whether or not the appellate court will consider a new issue raised by the appellant. This uncertainty reduces the value of being the successful party in the trial court and adds to the already overwhelming caseload of American appellate courts by encouraging appeals. Further, in many appeals, which would have been taken in any event, it can add two issues: whether or not to consider the new issue, as well as the merits of the issue itself. Legal scholars have paid little attention to the problem, not-withstanding the enormous implications of the decision whether or not to consider new issues on appeal. In fact, the only article on the subject was published over a half century ago. Since that time,courts increasingly are willing to consider new issues, bringing into question the continued validity of the general rule. The purpose of this Article is to reexamine the general rule against considering new issues on appeal, explore the many exceptions to it, and analyze whether courts should continue to apply the rule. The Article will also examine whether exceptions to the general rule should exist and, if so, which exceptions should be recognized and under what circumstances