Legal Commentary

One of my future writing projects is to take all my writing on jurisdictionality confusion, rework it with a whole bunch of issues I have not yet considered, and turn it all into a book-length project. Part of that project is going to involve checking through all the possible, but unexpected, areas in which the issue could arise. For example, last week I was reading the transcript of the oral argument in Ortiz v. Jordan, a § 1983/qualified immunity case that the Court agreed to hear on the issue of whether a public official, having lost a summary judgment motion and having gone to trial, can appeal the summary judgment decision. The argument then turned to whether the issue was really about sufficiency of the evidence at trial and whether the defendant waived the issue by failing to raise a Rule 50(b) motion after the verdict.

At one point, Justice Alito and others pushed Ortiz's lawyer on whether Rule 50(b) was jurisdictional, insisting it was not, in light of recent cases distinguishing jurisdictional rules from procedural, claim-processing rules (about which I write more in a forthcoming essay). The petitioner's lawyer seemed surprised by the line of questioning and tried to get around the question by insisting that he was "making a distinction among jurisdiction and power"--the court of appeals had jurisdiction over the case, but lacked the power to review that issue. But Justice Ginsburg rightly pointed out that this distinction makes no sense, becuase "jurisdiction is power."

What the lawyer was looking to say, I think, is that the litigant cannot raise sufficiency of the evidence on appeal if she did not make a Rule 50(b) motion in the trial, so there is nothing for the appellate court to hear and resolve on this issue when it takes the case. It is not an absence of power in the appellate court to hear the issue, but an absence of a procedural right in the litigant to raise and present the issue. The court is unable to exercise adjudicative power it possesses, limited by the claim-processing rule that the parties control the issues presented for judicial resolution. Courts are necessarily reactive in this regard; their ability to exercise power rests on strategic and legal decisions by others.

Of course, this may simply turn on perspective--we can change how something is characerized simply by redefining it from one perspective to another. From the court's standpoint, it does lack power to hear a Rule 50(b) sufficiency issue if not raised below; the court cannot raise it sua sponte, so the party's waiver deprives the court of the abiltiy to hear and resolve the issue, which is not so different than saying the court lacks power to hear it. Or this is why, as I mention in the forthcoming piece, the line between jurisdiction and procedure is far more muddled, far more difficult to draw, and arguably less consequential. And it always turns on the conduct of some actor (litigant or court) within the litigation process, not conduct beyond the four walls of the courtroom. The difference may come down to something soft, such as the structural values underlying the particular rule.

Something more to think about.