TABLE OF CONTENTS INTRODUCTION 1008 I. THE AMBIGUITY OF THE TERM "ISSUE" IN RULES 50 AND 52 1012 A. The Text and Operation of Rules 50 and 52 1012 B. The Ambiguity of the Text of Rules 50 and 52 1014 II. THE "ISSUE" IN RULES 50 AND 52 IS A DISPUTE OF FACT 1019 A. Aligning the Text of Rules 50 and 52 with Judicial Interpretations 1020 B. Aligning the Text of Rules 50 and 52 with Their History and Purpose 1023 C. Aligning the Text of Rules 50 and 52 with Related Rules 1029 III. RESOLVING THE "ISSUES" IN RULES 50 AND 52 1033 CONCLUSIONS AND FUTURE DIRECTIONS 1038 APPENDIX--PROPOSED AMENDMENTS 1041
INTRODUCTION
The Federal Rules of Civil Procedure have issues--148 issues to be exact. (1) Although the Rules use the term "issue" throughout their text, they do not use it in the same way each time. Sometimes, the Rules use the term "issue" to mean "dispute of fact." (2) Other times, they use it to mean "controversy" or "send out." (3) And still other times, the meaning of the term "issue" is ambiguous. (4) There is nothing inherently amiss when a single text uses the same word in multiple ways. Indeed, words often are ambiguous or polysemous--that is, a single word often has multiple meanings or senses. (5) And when a word is ambiguous or polysemous, context normally helps the reader determine the meaning of a particular usage. (6) This is common not only in ordinary speech, but also in legal language. (7) No legal interpreter, for example, confuses a "claim" in the context of civil procedure with a "claim" in the context of the False Claims Act. (8) Rather, context tells the interpreter whether the text means a statement of facts that gives rise to a right to relief (9) or a demand on the public fisc. (10) Not surprisingly, therefore, the meaning of the term "issue" in the Rules often is made clear by surrounding context, minimizing any interpretive difficulty. (11)
But, sometimes clarifying context is missing from the Rules, making it a challenge to discern the meaning of the term "issue." This Article will consider the missing context and resulting ambiguity in the use of the term "issue" in two rules central to federal practice: Rule 50(a) and (b), Judgment as a Matter of Law, and the conceptually related Rule 52(c), Judgment on Partial Findings. (12) Because of formal amendments to the Rules, judicial interpretations, and the rise of textualism as a method of interpreting the Rules, the term "issue" in Rules 50 and 52, which once was clear, has been rendered ambiguous.
Fortunately, there is a relatively easy solution to this problem. Rules 50 and 52 can be amended to replace ambiguous uses of the term "issue" with language clarifying that the term means a dispute of fact. Amending the term "issue" to reflect this meaning would align the text of Rules 50 and 52 with the Supreme Court's consistent interpretation of their language. Moreover, this change would align the text of these rules with their history and purpose, which reflect a concern with the resolution of disputes of fact. Finally, this change would align the language of Rules 50 and 52 with other rules of civil procedure that embody analogous concepts. In order to assist the work of the Committee on Rules of Practice and Procedure and the Civil Rules Advisory Committee--the entities responsible for drafting amendments to the Federal Rules--this Article proposes specific language to amend Rules 50 and 52 along with proposed committee notes explaining these changes. (13)
Now is the right time to consider these modest but important changes to the Rules. Whether rightly or wrongly, (14) the Supreme Court increasingly interprets the Rules as if they were statutes, invoking principles of statutory interpretation (15) and applying textualist principles when interpreting them. (16) Most saliently, the Court often applies textual canons of interpretation that emphasize the text of the Rules and deemphasize other sources of meaning, like evidence of purpose or longstanding judicial interpretations. (17) This heightened emphasis on the text of the Rules threatens to force courts to choose between the text and, on the other hand, these other sources of meaning. Most saliently, textual canons of interpretation, (18) like the canons of consistent usage (19) and meaningful variation, (20) ask courts to assume that terms used in legal texts have one and only one meaning. In order to alleviate the risk that courts adopting textualist methods will have to choose between text and purpose, the text of Rules 50 and 52 should be amended to reflect the meaning they are meant to convey. (21) Accordingly, amending Rules 50 and 52 to ensure that, as far as is practicable, each term embodies one and only one concept will avoid a clash between textualist canons of interpretation and, on the other hand, longstanding interpretations and evidence of their purpose. More generally, the adoption of these changes will help the Advisory Committee accomplish its stated goal of making the Rules easier to understand and making their "style and terminology consistent throughout." (22) Perhaps ironically, the current, ambiguous text of Rules 50 and 52 was added specifically to make the language clear and accessible to nonlawyers. (23) Amending the Rules to eliminate ambiguous uses of the term "issue" in Rules 50 and 52 will advance the Advisory Committee's laudable goals of clarity, consistency of usage, and accessibility.
I. THE AMBIGUITY OF THE TERM "ISSUE" IN RULES 50 AND 52
A. The Text and Operation of Rules 50 and 52
The Rules use the term "issue" to mean different things in different places. Some of these uses are clear and require little extrinsic context to clarify their meaning. For example, Rule 4(b) provides that if a "summons is properly completed, the clerk must sign, seal, and issue it." (24) Here, as with most of its uses in the Rules, the term "issue" unambiguously means "send out"--as in, the clerk must send out a completed summons.
But, sometimes, the term "issue" is ambiguous--that is, it could have one of two or more different meanings in a given context. (25) Perhaps most consequentially, consider conceptually related Rules 50 and 52, both of which permit the court to grant judgment due to evidentiary insufficiency against a party who has been "fully heard on an issue" critical to its case. (26) In relevant part, Rule 50 provides:
(a)(1) If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. (27)
Rule 50 allows the court to grant judgment as a matter of law in a jury trial when there is insufficient evidence for the jury to reach a verdict for the nonmoving party. (28) Rule 50(a), which codifies the older directed verdict motion, (29) allows the court to grant judgment as a matter of law during trial, before a case is submitted to the jury. (30) Rule 50(b), which codifies the older motion for judgment notwithstanding the verdict, (31) is substantively identical to Rule 50(a), allowing a party to renew a previously made motion for judgment as a matter of law after a case has been submitted to the jury. (32) The purpose of both motions is the same: to allow the trial court to resolve disputes over claims or defenses when the evidence presented at trial admits of only one permissible outcome. (33) Accordingly, Rule 50 can help the court resolve litigation more quickly by terminating an unnecessary litigation. (34)
Rule 52(c) serves an analogous role in the context of bench trials. A Rule 52(c) motion, which permits the court to grant judgment on partial findings, provides, in relevant part:
If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. (35)
Rule 52(c) provides a mechanism for the court to enter judgment when the court can "appropriately make a dispositive finding of fact on the evidence." (36) Like Rule 50, Rule 52(c) is motivated by efficiency concerns: a court may grant the motion before all possible evidence has been introduced when the court determines that the additional evidence would not change the outcome. (37) But, unlike Rule 50, Rule 52(c) allows the court to make factual findings, including weighing witness credibility. (38) Rather than simply determining, as a matter of law, what a reasonable jury could or could not find, Rule 52(c) allows the trial court itself to make those findings of fact. (39)
B. The Ambiguity of the Text of Rules 50 and 52
Although Rules 50 and 52(c) are normally applied without much difficulty, the text of these rules is ambiguous because the term "issue," used in both rules, is susceptible of more than one meaning. (40) In ordinary (that is, nonlegal) language, "issue" often is used as an approximate and gentler synonym for more precise and pointed terms, like "subject, topic, consideration and dispute." (41) Indeed, as one scholar of the English language concluded after reviewing the myriad ways that the term is used, "issue" is drastically overextended and "should not be made to do any more work." (42) And the variety of ways that "issue" is used in legal language is so diverse as to be overwhelming. Black's Law Dictionary lists dozens of phrases that use the word "issue," noting that an "issue may take the form of a separate and discrete question of law or fact, or a combination of both." (43) And legal writers have long referred, alternately, to an "issue of fact," "issue of law," or...
