Waving Goodbye to Non-Waivability: The Case for Permitting Waiver of Statutory Subject-Matter Jurisdiction Defects

It is axiomatic that defects in federal subject-matter jurisdiction may be raised at any time, even for the first time on appeal, and even if the parties involved in the cases do not dispute the federal courts’ power to decide the matters; likewise, subject-matter jurisdiction is deemed so important that federal courts should determine their jurisdiction before proceeding to other issues. These axioms are sometimes referred to as subject-matter jurisdiction’s “no-waiver rule” because they highlight the critical importance of the subject-matter jurisdiction inquiry. Recently, scholars have questioned whether the strict demarcation between jurisdictional and nonjurisdictional rules should be preserved, and whether it might make more sense to permit jurisdictional rules, at appropriate times, to take on certain nonjurisdictional attributes—such as the attribute of waiver. This Article engages with that scholarship with respect to the jurisdictional rules defining statutory subject-matter jurisdiction and the nonjurisdictional attribute of forfeiture or waiver and argues that efficiency, fairness, consistency, legitimacy, and transparency will all be enhanced if statutory subject-matter jurisdiction can, under certain circumstances, be waived. This Article further explains why such a change to the no-waiver rule will not adversely affect federalism values, as many courts and scholars opine. Despite the current no-waiver rule governing subject-matter jurisdiction, courts have waived, excused, or otherwise deferred the resolution of the subject-matter jurisdiction question until advanced stages of the proceedings. As courts create and expand these exceptions to the nowaiver rule and pretermit the subject-matter jurisdiction inquiry in order to tackle other (and often easier) issues, the gap between the “no waiver” rhetoric and actual application of that rule grows larger. This Article explores these exceptions and demonstrates that their ad hoc