While it has become popular to say that “judges should not make law” or “stick to the text” or some other non-falsifiable platitude, Sarah Cravens asks the question “What happens when the parties to an appeal simply miss the point?” in her article Involved Appellate Judging, which you can download here. The article includes case studies to illustrate different approaches, as well as an explanation of the underlying jurisprudential debates that might guide judges in this area.
While this article is probably worth reading, I was somewhat disappointed because it does not really give a straight answer, or any answer that could be used to, say, persuade a court that the plain-error standard of review is not what people think it is, or that an arguing that is not raised in an opening brief is not waived. However, her explanations of the jurisprudential approaches may give an appellate advocate enough to argue that his opponent misunderstands a standard of review or two.
And, for all of you who think that legal scholarship is inferior to “academic” scholarship, I give you Susan Herring, Searching for Safety Online: Managing "Trolling" in a Feminist Forum, 18 Info. Soc'y 371 (2002). HT AWC.