It was the wrong thread

[Mmmm, Burger (C.J.)]

Originally Posted by Tyrone Slothrop

The fact that the argument wasn't raised in the trial court suggests that it wasn't a likely winner on the merits in the appellate court, no? Maybe this is just a procedural way to put a dog out of its misery.

Perhaps so. And they reviewed it anyway, just under a nominally different standard.

But it doesn't matter whether the court got it right or wrong--it's a question of efficiency and whether they've enhanced it or reduced it.