Involved Appellate Judging
What happens when the parties miss the point? It is well established that if a party has failed to address an issue, either in a lower court or in an appellate brief, that party has waived the issue, and the court is under no obligation to consider it. This usual formulation of the principle focuses on the actions and the justified expectations of the parties, rather than those of the court. Thus it is clear that from the court's perspective, there is no obligation to consider an issue that has not been properly raised or preserved on appeal. It is not as clear, however, to what extent the court may choose to consider such an issue sua sponte. Even less clear, although perhaps more interesting, is the question of what the court should do when it notices that the parties have failed to raise a particular argument to support an already properly raised issue, or when the court sees an anterior issue that must logically be decided before reaching the issues the parties have properly raised, or even when the court sees a completely different framework in which to view the case.
That is, what happens when the parties simply miss the point? To what extent should the court involve itself in the process by adding to or refining the arguments the parties have made to support the issues they have raised on appeal? Is the role of an appellate judge simply to decide between or among the arguments set before it, implementing whatever rules of procedure apply? Or is it to reflect on the issue the parties have brought to the court and to reach the most correct resolution of that issue? This Article will ultimately conclude that, above all else, these questions need to be more carefully and openly examined by the appellate courts that deal with them. My own answer is that judges should at least be strongly encouraged to be more “involved” in the sense in which I will use that term in this Article--by using their discretion to improve the law by implementing the most correct reasoning. This Article concludes that judges serve in some respects as trustees or custodians of the law, and therefore have an active role to play in directing individual cases to the best and clearest conclusions.
Sarah M. R. Cravens, Involved Appellate Judging, 88 Marquette Law Review 251 (2004).