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

59 Pages Posted: 23 Aug 2013 Last revised: 24 Apr 2014

See all articles by Jessica Berch

Jessica Berch

Arizona State University, Sandra Day O'Connor College of Law

Date Written: April 10, 2014


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 no-waiver 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 creation undermines the legitimacy of the courts and raises fairness and efficiency concerns, while providing few countervailing benefits. The federal courts would be better served to have in place a uniform statute that accounts for classes of exceptions, rather than permitting the courts to create ad hoc, after the-fact exceptions.

This Article advocates for the adoption of the American Law Institute’s 1969 proposal for a new subject-matter jurisdiction statute that provides that defects in statutory subject-matter jurisdiction may be waived if not asserted before trial or before any ruling that is dispositive of the merits. The proposed statute adopts many of the current exceptions created by the courts and offers the added benefit of providing concrete guidance for future cases, thereby ensuring that the courts are perceived as legitimate, neutral arbiters that provide fair, uniform adjudication to all litigants.

Keywords: Jurisdiction, Federal Courts, Subject-Matter Jurisdiction, Waiver

Suggested Citation

Berch, Jessica, Waving Goodbye to Non-Waivability: The Case for Permitting Waiver of Statutory Subject-Matter Jurisdiction Defects (April 10, 2014). 45 McGeorge L. Rev. 635 (2014). Available at SSRN: https://ssrn.com/abstract=2314633 or http://dx.doi.org/10.2139/ssrn.2314633

Jessica Berch (Contact Author)

Arizona State University, Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States
480-965-4859 (Phone)

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