Scott C. Idleman, The Demise of Hypothetical Jurisdiction in the Federal Courts, 52 Vand. L. Rev. 235 (1999)
52 Vanderbilt Law Review 235 (1999)
This article examines the causes, nature, and potential demise of a federal judicial practice known as hypothetical jurisdiction, whereby a court renders a binding judgment in a case without first verifying that it has the power to do so. By the mid-1990s, every federal court of appeals had adopted the practice, despite the fact that it violated fundamental tenets of judicial power and, in some cases, the Constitution itself. In 1998, the Supreme Court attempted to repudiate this practice, but the scope of the repudiation was not clearly delineated and the Court left unresolved a number of questions and left intact several potential means of avoiding the repudiation. In addition to examining both these issues and the practice itself, I explain what the story of hypothetical jurisdiction reveals about the nature and character of the federal judiciary, as well as the institutional responsibility and jurisprudential methodology of the Supreme Court.
Idleman, Scott C., "The Demise of Hypothetical Jurisdiction in the Federal Courts" (1999). Faculty Publications. Paper 178.