Which begins:
This past term, the U.S. Supreme Court resolved a decadeslong circuit conflict in Dupree v. Younger, holding that purely legal issues resolved on summary judgment need not be reraised in post-trial motions under Federal Rules of Civil Procedure 50(a) and (b) in order to preserve those issues for appellate review.
And concludes:
Dupree has provided much needed uniformity regarding preservation of issues resolved on summary judgment, and its ruling should extend easily to the Rule 12 context. That means that a purely legal argument raised and rejected on the pleadings need not be reraised throughout the case simply to preserve appellate review. But the precise line between "purely legal" and mixed questions of fact and law is — as in the summary judgment context — not crystal clear, and counsel should carefully err on the side of asserting the argument before, during and after trial, so it is properly preserved for appeal.
Posts
