In their November Illinois Bar Journal article, “A Palpable Conflict,” Anthony J. Longo and John M. Fitzgerald pit two ancient doctrines against each other: the law of the case vs. subject-matter jurisdiction. What happens, Longo and Fitzgerald ask, when subject-matter jurisdiction and the law-of-the-case doctrine clash? In other words, does the law-of-the-case doctrine really bar someone from relitigating the court’s subject-matter jurisdiction in a subsequent appeal? The authors, in their article, “A Palpable Conflict,” show that there is a split of authority on this issue. While the majority of reported Illinois decisions on this issue have held that the law-of-the-case doctrine indeed bars relitigating a court’s subject-matter jurisdiction, a minority of cases have found (or at least strongly suggest) that defects in subject-matter jurisdiction can indeed be raised at any time—including after the appellate court has already ruled that it does possess subject-matter jurisdiction.
