In various areas of procedural doctrine, courts must define the content of an “issue.” Consider a few examples.
The doctrine of collateral estoppel—also known as issue preclusion—is perhaps the most familiar. Under this doctrine, an “issue” of law or fact actually decided in one suit and essential to the judgment in that suit typically may not be relitigated in a later suit. Accordingly, courts assess whether issues advanced before them were advanced and decided in prior suits. This inquiry demands that courts define the scope of the issues presented in the two suits and then assess how they overlap.
A parallel inquiry arises in class actions. In order for a class action to be maintained under Rule 23, the “questions of law or fact common to class members predominate over any questions affecting only individual members.” Put another way, the “individual issues” among class members may not “overwhelm[] the common ones.” This predominance requirement echoes elements of issue preclusion: courts must define the issues that arise for different class members and evaluate their similarity.
Amicus curiae participation raises a similar set of questions. Typically, amici may advance novel “arguments” in support of existing “issues” raised by the parties, but they may not advance novel issues. When does a creative amicus cross the line from new argument to new issue? To answer this question, courts define the contours of the issues advanced by the parties and ask whether amicus submissions move beyond them.
The definition of an issue need not be identical in these three contexts. In this sense, it is quite different from a related concept: the idea of a case. Article III of the Constitution, of course, only extends the judicial power to “Cases” and “Controversies.” It follows that a central task of defining the judicial power—across doctrines like standing, ripeness, intervention, pendent jurisdiction, and the like—lies in defining the idea of a case. There is no comparable constitutional mooring for the idea of an issue. The aforementioned procedural doctrines, moreover, do not derive their requirements from some other articulation of the notion of an issue.
Nevertheless, the doctrines possess a common strand, and one that has grown increasingly tangled over time. Neither courts nor scholars have advanced a clear definition of an issue. In each of these doctrinal areas, courts speak in a vague and conclusory fashion, advancing decisions either by fiat or as all-things-considered pronouncements. The result is, at best, a lack of judicial accountability and, at worst, inconsistent decision making.
This Article begins the task of filling the resulting doctrinal void. It does so by exploring a fourth doctrinal area that requires precision about the idea of an issue: appellate preservation requirements.
