Cesare Cavallini (Bocconi University – Department of Law) has posted Borrowed Robes: Comparative Insights on Sua Sponte Authority and Affirmative Defenses on SSRN. Here is the abstract:
Affirmative defenses are usually the responsibility of litigants; however, U.S. courts increasingly address them sua sponte under the “Gorilla Rule,” stepping in when issues are so obvious that they are overlooked. If unchecked, such interventions risk turning judges into de facto lawmakers, moving away from their neutral role, while appellate guidance offers mixed signals that can leave lower courts uncertain. Lessons from continental civil-law systems, where proactive judicial involvement is common but carefully limited, show a clear way forward: courts can fill procedural and substantive gaps decisively without overstepping their bounds. This approach corrects procedural stagnation and safeguards party autonomy. This Article argues that, in some cases, adopting structured sua sponte authority can be crucial for raising affirmative defenses, rather than merely optional. When properly calibrated, judicial initiative transforms perceived overreach into a principled tool, enabling courts to address essential issues parties fail to raise, uphold fairness, and deliver justice efficiently—all while respecting the adversarial process and constitutional limits.
Recommended.