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In Steel Co. v. Citizens for a Better Environment, the United States Supreme Court, sua sponte, denounced the doctrine of "hypothetical jurisdiction," a doctrine that, in some circumstances, allowed courts to assume, arguendo, the existence of jurisdiction and to address the merit questions presented by cases. Several of the Justices distanced themselves from the denunciation, however, and despite the vociferousness of the position taken by the majority, even it found that there were exceptional circumstances in which the Court had acted properly (and presumably in which other courts would act appropriately) in assuming jurisdiction arguendo and addressing merits questions. The opinion left open a number of questions with which the federal courts and commentators have begun to grapple. In this Article, I focus on matters left unclear by Steel Co. and, in particular, on the effects of the Court's denunciation on the work of the federal appellate courts.

The first Part describes the Steel Co. opinion and highlights several of the questions it raised. Part II considers how the Court's denunciation of hypothetical jurisdiction has changed the appellate courts' approach to cases in which they find issues concerning the district courts' jurisdiction. It does not attempt to answer all of the interpretive issues left open by Steel Co., as that case applies to district court jurisdiction, nor does it tackle the myriad issues that courts will face in determining whether particular matters go to the district courts' "jurisdiction," for Steel Co.'s purposes. Part II does, however, focus, by way of example, on the primary area of controversy that arose in the wake of Steel Co. as it applies to district court jurisdiction: whether the Eleventh Amendment defense is jurisdictional in the sense that courts may no longer assume it to be inapplicable or unavailable, and may decide cases on their merits.

Part III initially provides a transition from appellate handling of issues of district court jurisdiction to issues of appellate jurisdiction. It begins by addressing the apparent tension between the Court's denunciation of hypothetical jurisdiction and its restriction of the scope of appellate jurisdiction when hearing interlocutory appeals, and stakes out a position on which matters of district court jurisdiction appellate courts may entertain upon interlocutory appeals. Part III then examines how appellate courts had employed hypothetical appellate jurisdiction and how the Court's seeming prohibition on hypothetical jurisdiction applies to matters of appellate jurisdiction. This undertaking requires consideration of the constitutional provisions, statutes, rules and doctrines that govern appellate jurisdiction and an evaluation of which requirements no longer may be assumed to be satisfied, to allow an appellate court to reach merits issues.

Finally, Part IV looks at the effect of Steel Co. on the kinds of issues that the courts of appeals are deciding. It then comments on the value of this effect.