Note that this opinion rests almost entirely on the fact that Lavabit/Levinson failed to raise any of his legal arguments before the trial court. Any lawyer can tell you that, if you want a court of appeals to consider a legal issue, you have to raise it before the lower court first to give them a chance to rule and to develop a record for the court of appeals to review. I'm sure there are those out there who will want to make this into a major privacy ruling, but it just isn't.
No. The problem, though, is that it is difficult for a court of appeals to determine whether an unconstitutional act occurred when a party does not raise the concern before the lower court. A court of appeals does not collect evidence and is constrained by the factual record developed below. I don't think we would be better off if courts of appeals resolved a constitutional issues without the issue's having thoroughly investigated and litigated.
In considering this, remember that the record might sometimes be deficient in ways that the court of appeals cannot identify on its own. And it seems likely that inadequate development will cause courts of appeals to things wrong as often as it permits them to get things right despite the procedural "technicality."
Hm. Is there provision for, "Gee, it sure looks like important investigation may not have occurred in this case, perhaps it should be revisited"?
catch( DefenseDidNotDoSomethingImportantException e ){
Case.Retrial();
}
As a defendant (or coder), you don't want to have to rely on exception-handling to save you from error, but as a citizen, I'd like to prevent technicalities from blinding our judicial system to proper consideration of major issues. Technicalities are often there for a reason (as this one is), but that shouldn't stop us from getting at the heart of an issue.
That can sometimes happen. If it is very obvious that a legal mistake was made, it is possible for a court of appeals to remand the case for further investigation. The problem in this case was not only that issues were not raised, but that Lavabit actually conceded that the government was legally entitled to the information it requested.
The opinion itself actually gets into all of this in considerable detail. I highly recommend reading pages 20-40 -- especially pages 22-23 -- if you find these issues interesting. The opinion also points out that there is a certain value in opinions' being final. If the court of appeals will just overlook the fact that parties have not raised all their arguments before the lower court, what incentive will litigants have in the future to do so? District courts are real courts! A litigant should not feel free to treat the district court proceeding lightly (as Lavabit seems to have done) in the hopes that it can prevail before the "real" court of appeals. The opinion also points out that the identification of issues of major public concern is probably not something that the court can be trusted to do objectively.
Really, this is a case for legislation. The judiciary is responsible for comparing fact and action against agreed and applicable law. The "proper consideration of major issues" is why we have legislation: we're supposed to do this consideration before laws are passed. That's why it takes so much effort to pass a law; it provides time for such consideration. That's where the allowance for filibusters came from: if someone has another angle to bring to bear on a subject, you will goddamn consider it even if it takes a hundred hours.
The judicial system is thus, in a sense, the very exception-handling system you want. It's catching exceptions called "Oh shit, we didn't think of this case and we need to decide consequences now".
Which goes back to Chief Justice Roberts statement on the ObamaCare ruling.
“It is not our job to protect the people from the consequences of their political choices,”
Problem is that you can DOS the system this way. You do not want to incent the defense to make weak arguments so that they can try again with stronger arguments in the case of a mistrial.
Mechanically, the adversarial justice system means that yes, the justice system is liable to a failure mode where it will accept illegal acts for reasons that are more procedural than philosophical.
Remember that by the time a case reaches a court of appeals, with the government as a party, the U.S. itself must first decide its position is meritorious (it almost always has discretion to bring or defend a case). Then a district court also rules on it. So, for the district court to be reversed against the government, both the government lawyers and the district court must have been incorrect. This will not be an especially common occurrence even without the improper influence that you are insinuating. Given this posture, I find it remarkable, frankly, that the government loses appeals as frequently as it does. While it usually wins, it is hardly rare for them to lose.
