[pdabbadabba]

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.