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51 Minn. L. Rev. 491 (1966-1967)
Beyond Bootstrap: Foreclosing the Issue of Subject-Matter Jurisdiction before Final Judgment

handle is hein.journals/mnlr51 and id is 507 raw text is: Beyond Bootstrap: Foreclosing the
Issue of Subject-Matter Jurisdiction
Before Final Judgment
Dan B. Dobbs*
I. THE PROBLEM OF BELATED DIRECT ATTACK UPON
SUBJECT MATTER JURISDICTION
Good judicial administration requires that all issues pre-
liminary to the merits of a dispute be raised and disposed of at
an early stage of litigation. It would be farcical to try a case
fully on the merits and then decide demurrers, objections to
venue, or motions to strike inappropriate pleadings afterwards.
Since the law is a ass only part of the time, it ordinarily re-
quires that all defenses and objections be raised at the beginning
of the trial and not at the end or in the middle; and if pos-
sible, these preliminary objections are decided first.' For
example, if the defendant believes that the court has no juris-
diction over his person, he must say so immediately if he ap-
pears in the case at all; if he does not object immediately, he
waives his objection.2
It is commonly said, however, that parties cannot consent
to jurisdiction of the subject matter;3 accordingly, the issue of
subject-matter jurisdiction may be raised at any stage of the
proceedings, even for the first time on appeal.4 Thus, failure
*  Visiting Professor of Law, University of Minnesota; Professor
of Law, University of North Carolina.
1. Federal practice is prescribed in Federal Rules of Civil Pro-
cedure, Rule 12(h). The 1966 amendments, however, make it easy to
postpone decision on preliminary questions. Likewise, if evidence in-
troduced without objection raises a new point, under the liberal amend-
ment rules, a failure to raise the point earlier may carry no adverse
consequences. FED. R. Civ. P. 15(b). If a cause of action is not stated
in the complaint, it may be attacked tardily. See LOUISELL & HAzARD,
PLEADING & PROCEDURE 197-98 (1962); FED. R. Civ. P. 12(h) (2).
2. FED. R. Civ. P. 12; see Chicago Life Ins. Co. v. Cherry, 244 U.S.
25 (1917); York v. Texas, 137 U.S. 15 (1890). Similarly the plaintiff may
be held to have waived any objections to jurisdiction over his person
because he has, by filing his complaint, submitted to the court's juris-
diction. Adam v. Saenger, 303 U.S. 59 (1938).
3. See 1 BARRoN & HOLTZoFr, FEDERAL PRACTICE & PROCEDURE § 21
(Wright ed. 1960); 1 MOORE, FEDRAL PRACTICE  f 0.60(4) (2d ed. 1959);
Dobbs, The Decline of Jurisdiction by Consent, 40 N.C.L. REV. 49 (1961).
4. This statement is made repeatedly by both courts and writers,
without qualification. The leading case is Mansfield, C. & L.M. Ry. v.
Swan, 111 U.S. 379 (1884), discussed in detail below. This paper, how-

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