We finally add a word about the approach taken by the Court of Appeals. Although we find its disposition to have been in error, we fully appreciate that it is an error shared among the circuits, and that it was caused in large part by imprecision in our prior cases. Our repetition of the phrase mandatory and jurisdictional has understandably led the lower courts to err on the side of caution by giving the limits in Rules 33 and 45 the force of subject-matter jurisdition. Convinced, therefore, that Robinson and Smith governed this case, the Seventh Circuit felt bound to apply them, even though it expressed grave doubts in light of Kontrick. This was a prudent course. It neither forced the issue by upsetting what the Court of Appeals took to be our settled precedents, nor buried the issue by proceeding in a summary fashion. By adhering to its understanding of precedent, yet plainly expressing its doubts, it facilitated our review.
Eberhart v. U.S., No. 04–9949 (U.S. Oct. 31, 2005), slip op. at 7–8.
Part of my theoretical work in civil procedure seeks to discern what "jurisdiction" really means. The decision in Eberhart—and most particularly the Court's praise of the Seventh Circuit's approach to that issue—points out why this is important. Or, in any event, one of many reasons why. More importantly, it points out one of the real weaknesses in American (and, for that matter, everyone's) jurisprudence: Poor writing. Although the Court said the problem "was caused in large part by imprecision in our prior cases," what it really meant was that the problem was caused by unclear writing in the precedents. That is not to say that never will the "imprecision" will result from unique facts, or changing circumstances, or evolving doctrine. This time, though, that is not the cause; instead, it was needless rhetorical flourishes by Justices Whittaker and Jackson.