It is a basic axiom of American jurisprudence that legal issues are classified as either "jurisdictional" or "nonjurisdictional." If a rule or requirement is classified as jurisdictional, then "courts will interpret and apply it rigidly, literally, and mercilessly." Jurisdictional defects are absolutely fatal to a claim. Moreover, parties neither waive jurisdictional requirements nor consent to noncompliance with them. Parties can raise jurisdictional defects at any time in the litigation, including for the first time on appeal, and courts are obliged to raise such defects sua sponte, even after litigation on the merits. Finally, courts may not consider using equitable doctrines to bend jurisdictional rules under any circumstances.

But how are courts to know when a rule is jurisdictional? How are they to know when to apply a rule with jurisdictional rigidity? One answer is that a rule's jurisdictional status (its "jurisdictionality") should follow from the consequences of a rule: a court decides first that the rule should be applied rigidly and then labels the rule jurisdictional. The problem with this approach is that it turns the word "jurisdiction" into a legal "trope" - that is, a word that courts invoke as a convenient way of reaching certain consequences that have come to be associated with it. The word becomes "a hook that judges use when they want to achieve certain ends, like construing a rule strictly and literally, or raising a legal issue sua sponte, or engaging in collateral review of another court's judgment." The jurisdictional label thus becomes "only a conclusory label for a judicial refusal to act." This in turn leads to two problematic results. First, it leads to opaque court decisions. If jurisdiction is a trope, then courts can declare, essentially in a word ("jurisdictional!"), that a rule should be applied rigidly, without ever explaining why the rule should be applied rigidly. Moreover, and perhaps more problematically, when the jurisdictional label is an expedient tool of reaching harsh consequences, it allows courts to apply rules rigidly even where such consequences seem unfair and unnecessary. For example, the Sixth Circuit used the jurisdictional label to deny an appeal to a pro se litigant who submitted an otherwise timely and complete notice of appeal, but who signed the notice by typewriter instead of by hand. The Supreme Court used the jurisdictional label to deny certiorari to a litigant's petition that arrived at the courthouse two days late because a massive snow storm delayed the mail...