It is basic hornbook law—affirmed by courts across time and space repeatedly and unequivocally—that subject-matter jurisdiction cannot be waived. However, in the context of a Rule 60(b)(4) motion seeking relief from a void final judgment after the time for appeal has expired, the onerous standard of review used by courts causes subject-matter jurisdiction to be practically—and frequently—waived in favor of the finality of the judgment. While an onerous standard is tolerable where the court issuing the judgment explicitly found subject-matter jurisdiction, an onerous standard is unacceptable where the court did not do so in light of the federal courts’ limited jurisdiction, and the normal standard for subject-matter jurisdiction used during litigation should be applied.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital