The demise of hypothetical jurisdiction in the federal courts

It is a basic principle of federal judicial power that an Article III court may not adjudicate a dispute without first verifying its subject matter ju risdiction. By the mid-1990s, however, every federal court of appeals had a dopted the practice of hypothetical jurisdiction, which allowed a court to bypass subject matter jurisdiction and enter judgment on the merits, where jurisdiction appeared difficult but the merits could be easily resolved aga inst the party asserting jurisdiction. In 1998, the Supreme Court attempted to repudiate this practice. But the scope of the repudiation was not clear ly delineated, and the Court left unresolved a number of issues and left in tact several potential means of avoiding the repudiation. In this Article, Professor Idleman not only recounts the life and death of hypothetical juri sdiction, fron its emergence and unprincipled expansion in the lower courts to its attempted interment, but also examines what these developments reve al about the nature and character of the federal judiciary. In addition to detailing the circumstances, merits, and possible scope of the practice's r epudiation, the Article explains why the practice attracted the judicial fo llowing that it did, and why, despite the Court's efforts, the practice may persist in the jurisdictional decisionmaking of the federal courts. In so doing, the Article examines five possible techniques by which these courts may attempt to sidestep the repudiation. The Article also explores the deep er significance of both the doctrine and its repudiation, particularly in t erms of the institutional responsibility and jurisprudential methodology of the Supreme Court.