with whom HENDERSON, Circuit Judge, joins, dissenting:
A federal district judge — an exceptionally fine one, it so happens — has taken full command of a major chunk of District of Columbia government, the Child and Family Services Division of the Department of Human Services. Although the law in whose name he runs the department is local, not federal, no opinion of the district court or this court has ever performed the balancing required by United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139-40, 16 L.Ed.2d 218 (1966), for the exercise of pendent jurisdiction. The majority tells us that because of “law of the case,” this substitution of judges for elected government must continue into the indefinite future, without any court ever engaging in the balancing required by Gibbs. I think not. To me it appears that (1) law of the case does not bar one panel of the court from addressing a jurisdictional issue that a prior panel resolved only implicitly — without one word of discussion; and (2) the balancing required for pendent jurisdiction under Gibbs’s “second step” is in fact jurisdictional.
The majority’s statement of the history of the litigation prior to the now-vacated panel opinion, Maj. Op. at 1391-1393, is not inaccurate. But neither is it complete. First, the consent decree negotiated between the parties consists of a 90-page single-spaced code of operations. Thus the degree of federal judicial control is remarkable in its sweep and detail. The District negotiated the decree after and under the pressure of a district court decision on the merits, LaShawn A. v. Dixon, 762 F.Supp. 959 (D.D.C.1991), but before the Supreme Court’s decision in Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). As Suter rejected two of the holdings of the district court— that §§ 671(a)(9) & (a)(15) of the Adoption Assistance Act created rights enforceable under 42 U.S.C. § 1983 — with implications for the rest of the court’s statutory analysis, the judicial reasoning that compelled the District to embrace the consent decree was obviously vulnerable. Indeed, on the two specific provisions addressed in Suter, it was plainly unsustainable. Thus the District had, under pressure that was at least in part ill-founded, agreed to the most detailed imaginable federal judicial supervision of a major portion of its governance.
Second, the majority does not convey— indeed, it is hard to convey — how absent from the first panel opinion, LaShawn A ex rel. Moore v. Kelly, 990 F.2d 1319 (D.C.Cir. 1993) (“LaShawn /”), is any reference to or hint of the balancing required for pendent jurisdiction under the second step of Gibbs. The following is its entire discussion of pendent jurisdiction: *1399990 F.2d at 1326. The only language quoted from Gibbs relates exclusively to the first step required by that case; that quotation frames the panel’s own language (i.e., the non-quoted part), referring to the court’s “authority” to decide the ease, which echoes Gibbs’s observation that there is “power” in the court to hear the case if the first test is met — the common nucleus of operative facts. See Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138. Accordingly, we are not in any way here dealing with a question “not extensively discussed,” see Maj. Op. at 1394, but, so far as the balancing required by Gibbs’s second step is concerned, a question not discussed at all.
*1398Our authority to decide the case entirely on pendent state grounds is incontrovertible. The Supreme Court has held that “where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question ... the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 722, 86 S.Ct. 1130, 1137, 16 L.Ed.2d 218 (1966) (quoting Hurn v. Oursler, 289 U.S. 238, 246, 53 S.Ct. 586, 589, 77 L.Ed. 1148 (1933)).
*1399The status of jurisdictional issues under law of the case. There is, of course, no dispute that law of the case traditionally bars reconsideration even of an issue merely decided “by necessary implication,” subject to equally traditional exceptions for decisions found clearly erroneous or working manifest injustice, or, at least in some cases, undermined by an intervening change in controlling authority. Nor can it be doubted that LaShawn Ts instruction to the district court to go full speed ahead on the basis of District law resolved the Gibbs second step “by necessary implication.” After all, as jurisdiction is a necessary predicate to judicial action, regardless of whether any party has attacked jurisdiction, see, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990) (“federal courts are under an independent obligation to examine their own jurisdiction,” regardless of whether any party has raised the issue), any decision to reach the merits implicitly rejects any attacks on the court’s jurisdiction. Thus, despite the complete omission of any reference in the briefs in LaShawn I to Gibbs (or, so far as appears, to pendent jurisdiction at all), and the court’s complete non-discussion of Gibbs’s second step, by standard reasoning LaShawn I is properly said to have found, by necessary implication, that Gibbs’s second step was satisfied.
Jurisdictional issues are, of course, special in a number of regards. First, as already noted, a court is not only free but affirmatively obliged to raise the issue of its jurisdiction where it might be in question, even though the parties never dreamed of the issue. Second, judicial decisions implicitly rejecting attacks on a court’s jurisdiction (or that of a lower court), i.e., ones that proceed to the merits without discussion of jurisdiction, have no precedential force on the jurisdictional point. “When questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent ease finally brings the jurisdictional issue before us.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 119, 104 S.Ct. 900, 918, 79 L.Ed.2d 67 (1984) (“Pennhurst II”).
The first question before the court, then, is whether the special characteristics of jurisdictional issues require any special treatment for purposes of law of the case. This court once took a firm position that they did so — to the point of removing such questions from law-of-the-case analysis, Potomac Passengers Ass’n v. Chesapeake & Ohio R. Co., 520 F.2d 91, 95 n. 22 (D.C.Cir.1975), and the case was widely cited for that proposition.1 As the majority rightly observes, however, the Supreme Court expressed at least a degree of disapproval in a dictum:
There is no reason to apply law-of-the-case principles less rigorously to transfer decisions that implicate the transferee’s jurisdiction. Perpetual litigation of any issue— jurisdictional or nonjurisdietional — delays, and therefore threatens to deny, justice. But cf. Potomac Passengers Assn. v. Chesapeake & Ohio R. Co., ... 520 F.2d 91, 95 n. 22 [ (D.C.Cir.1975) ].
Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816 n. 5, 108 S.Ct. 2166, 2178 n. 5, 100 L.Ed.2d 811 (1988).
*1400Since Christianson, the cases have been more mixed,2 and are certainly consistent with the view, which I share, that Potomac Passengers overdid it. Christianson’s direct impact appears to have been slight, with courts applying its discussion of law-of-the-case doctrine relating to jurisdictional questions only in the precise context at issue there — application of a transferring court’s jurisdictional analysis in a coordinate court to which the case has been transferred.3 See, e.g., Ukiah Adventist Hospital v. FTC, 981 F.2d 543, 546 n. 4 (D.C.Cir.1992) (“Review of a transfer order [including jurisdictional grounds] in a transferee court is exceedingly limited.”) (dictum citing Christianson); Wang Laboratories v. Applied Computer Sciences, 958 F.2d 355, 358 (Fed.Cir.1992) (accepting case transferred by First Circuit, the court reasoned that “if the transferee court can find the transfer decision plausible, its jurisdictional inquiry is at an end”); Moses v. Business Card Express, 929 F.2d 1131, 1137 (6th Cir.1991) (upholding, under Christian-son, district court’s decision to apply law-of-the-ease principles to transfer decision made pursuant to forum selection clause; technically venue rather than jurisdictional issue). While post-Christianson decisions have sometimes applied law of the case to jurisdictional questions outside the transfer context, in doing so they have neither relied on the Christianson dictum nor even expressly considered whether jurisdictional issues called for special treatment. See McKesson Corp. v. Islamic Republic of Iran, 52 F.3d 346, 351 (D.C.Cir.1995); In the Matter of Memorial Estates, 950 F.2d 1364, 1367 (7th Cir.1991); Oneida Indian Nation of New York v. State of New York, 860 F.2d 1145, 1151 (2d Cir.1988).
Moreover, at least one circuit that once applied law of the ease to a jurisdictional issue without discussion later acknowledged the special character of such issues. In Di-Laura v. Power Authority, 982 F.2d 73, 77 (2d Cir.1992), the court held that a district court was not barred by law of the case from reconsidering its own non-final orders, noting that “subject matter jurisdiction is particularly suited for reconsideration.” (As Judge Winter noted in a separate opinion, however, the issue was in fact moot because what might have been law of the case for the district court could not have prevented review by the court of appeals, see id. at 81.) See also Matek v. Murat, 862 F.2d 720, 724 n. 1 (9th Cir.1988) (apparent dictum citing Potomac Passengers for the proposition that “[s]ubject matter jurisdiction, because of its intrinsic importance to the judicial power of the federal courts, is particularly suitable for reconsideration”).
One post-Christianson case, Wilmer v. Board of County Comm’rs of Leavenworth County, 69 F.3d 406 (10th Cir.1995), confronted a problem closely akin to ours. In a prior pass at the case, the majority had disregarded a jurisdictional issue that the dissent had “tentatively” raised. Id. at 410. Did this bar the panel from considering it? The court noted that since any merits decision implicitly rejects all jurisdictional attacks, application of law of the case as conventionally articulated would bar all consideration of such issues at any time after an initial final judgment, thereby conflicting with the directive of Rule 60(b)(4) of the Federal Rules of Civil Procedure to provide relief where the judgment is void, as well as the decisions that have applied that rule to overturn jurisdictionally defective final judgments. Id. at 409-10. Wil*1401mer concluded, therefore, that a jurisdictional issue could be examined where there had been no “actual determination” of the issue, id. at 409, and obviously did not regard the dissent’s raising the issue as satisfying that test, id. at 410, even though, under normal assumptions as to how courts work, that necessarily meant that the majority was fully aware of, and had rejected, the contention.
The line drawn in Wilmer seems to me sound. Indeed, I do not understand the majority to say that the “necessary implication” aspect of law of the case means that a court’s issuance of a final judgment, logically but not expressly based on a positive jurisdictional finding, precludes any later consideration of the issue. Its ruling, insofar as it proceeds under the assumption that Gibbs’s second step is jurisdictional (an assumption it ultimately rejects), must rest on the idea that LaShawn I “actually” decided that that step was satisfied. But this seems necessarily to rest on a very loose notion of “actual” decision, far looser than that applied by the court in Wilmer. The only evidence of actual decision of the issue in LaShawn I is what one might infer from its reference to Gibbs, coupled with our knowledge that Gibbs involves two steps, not one. But that amounts to no more than silent action, in the face of presumptive awareness of an issue, which Wilmer clearly regarded as being less than an “actual” determination.
Alternatively, perhaps the majority means that Gibbs is a unitary proposition. On this view, a citation to the ease and a quote from one of the operative passages articulating step one ipso facto constitute an “actual” determination of step two. The theory seems to me a bit metaphysical. If Wilmer is right, i.e., more is required to trigger law of the case than action on the merits coupled with a sign of judicial awareness of the jurisdictional issue, it must be because some more serious evidence of a mental connection with the issues is necessary. If so, then the idea that the steps of Gibbs are unitary seems to be simply a fiction to avoid the requirement that there be evidence of such a mental connection.
The actions of the Supreme Court suggest that mere implicit resolution of a jurisdictional issue should not be binding under law of the case. In Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) (“Pennhurst I”), the Court had cast doubt on the federal basis for a consent decree enforced against state officials, see id. at 18-27, 101 S.Ct. at 1540-45, and remanded the case to the court of appeals to determine the validity of the federal claims. The Court also remanded state law claims to determine “whether state law provides an independent and adequate ground which can support the court’s remedial order,” without significant discussion of the issue. Id. at 31, 101 S.Ct. at 1547.
On remand, the court of appeals recognized that the remand order necessarily implied that it would have jurisdiction to enter-the order on state law grounds alone. “Implicit in that direction is a holding that the plaintiffs’ federal law claims are of sufficient substance to support the exercise of pendent jurisdiction over that Pennsylvania law claim.” Halderman v. Pennhurst State School & Hospital, 673 F.2d 647, 650 (3d Cir.1982)4 The court of appeals then acted on the implied permission Pennhurst I had given and found that the Pennsylvania statute provided “adequate support for [the order] independent of federal law.” 673 F.2d at 656.
Again the Supreme Court reversed, holding that the Eleventh Amendment denies federal courts jurisdiction to order state officials to conform their conduct to state law. 465 U.S. at 117-21, 104 S.Ct. at 917-19. It brushed aside several earlier implicit rulings to the contrary in other cases, explaining that stare decisis principles did not bar its reconsideration of the jurisdictional issue. *1402Id. at 119, 104 S.Ct. at 918. The decision thus overrode law of the case in the interest of getting the jurisdictional issue right. While the majority did not explicitly address the problem of law of the case, the dissenters did, saying that in reversing the Third Circuit on the second round, “the Court casts aside [the] well-respected doctrine ... of law of the case.” 465 U.S. at 165, 104 S.Ct. at 943 (Stevens, J., with whom Brennan, Marshall, & Blackmun, JJ., joined, dissenting).
Despite the obviousness of the law-of-the-case issue and the dissent’s explicit discussion, the majority disregarded it. It may thus seem inconsistent for me to attach any importance to the Court’s action, in view of what I have said, in agreement with Wilmer, on the application of law of the case to undiscussed jurisdictional issues. But law of the case is not a jurisdictional issue; it merely “expresses the practice of courts,” Christianson, 486 U.S. at 817, 108 S.Ct. at 2178 (quotation omitted). Since implicit treatments of non-jurisdictional issues are precedents, see, e.g., Elcon Enterprises, Inc. v. WMATA, 977 F.2d 1472, 1484 (D.C.Cir.1992); King v. U.S. Dep’t of Justice, 830 F.2d 210, 224 (D.C.Cir.1987), it is appropriate to look to Pennhurst II as such. Given the merely “prudential” character of law-of-the-case restrictions, and the doctrine’s grounding in concerns of judicial economy, see, e.g., Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739-40 (D.C.Cir.1995), the Court’s action strongly suggests that law-of-the-case considerations, like those of stare decisis, give way to jurisdictional concerns where the initial decision has failed to address the issue explicitly.
The majority alludes briefly to law of the circuit, Maj. Op. at 1395-1396, but I think its role here is necessarily marginal. While for non-jurisdictional issues a court’s unspoken but necessary premise will often be taken as precedent, see Eicon Enterprises and King, supra, I do not read the majority as saying that should be true for jurisdictional decisions. Such a view would run squarely into Pennhurst II and kindred cases. Insofar as the majority is saying that the panel-to-circuit relationship calls for extra caution in reexamining once-resolved issues, I agree. It is more unseemly for one group of three members of a court to overturn another group of three than for a single judge, or group of judges, to reject his or their former position. The catch is in the phrase “once-resolved.” For the reasons already given, I do not believe that LaShawn I can be said ever to have resolved the issue of how Gibbs’s second step should apply to the present litigation.
Whether Gibbs’s second step is jurisdictional. When a federal court is presented with a combination of federal and state claims, it can adjudicate the state law claims only if that is consistent with the two-step analysis outlined in Gibbs. 383 U.S. at 725-27, 86 S.Ct. at 1138-40.5 The first step requires the court to evaluate the substantiality of the federal claim and whether the state and federal claims “derive from a common nucleus of operative fact.” Id. at 725, 86 S.Ct. at 1138. If these requirements are met, then “there is power in the federal courts to hear the whole.” Id. Then — and the analysis may vary at different stages of the litigation — the court is to balance several variables, such as the desirability of a “surer-footed reading of applicable law,” the possible predominance of the state-law issues, the degree to which they are tied to matters of federal policy, possible issues of federal preemption and chances of jury confusion. Id. at 726-27, 86 S.Ct. at 1139-40.
The majority concludes that if the first step is taken and there is “power” in the court, no jurisdictional issue remains. See Maj. Op. at 1396-1397. This of course encounters a non-trivial linguistic problem: Gibbs’s second step is expressly part of the determination of whether there is “pendent jurisdiction,” so one might think it followed, as a matter of ordinary language, that it was jurisdictional. It could, however, be a non-merits, non-jurisdictional inquiry, comparable to abstention and related doctrines. See, e.g., Burford v. Sun Oil Co., 319 U.S. 315, 317-18, 63 S.Ct. 1098, 1098-1100, 87 L.Ed. 1424 (1943); Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, *1403817-19, 96 S.Ct. 1236, 1246-47, 47 L.Ed.2d 483 (1976); Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494-95, 62 S.Ct. 1173, 1175-76, 86 L.Ed. 1620 (1942).
A natural place to start is with the origin, the way the Court spoke of Gibbs step two in Gibbs itself:
That power need not be exercised in every case in which it is found to exist____ Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law—
The question of power will ordinarily be resolved on the pleadings. But the issue whether pendent jurisdiction has properly been assumed is one which remains open throughout the litigation. Pretrial procedures or even the trial itself may reveal a substantial hegemony of state law claims, or likelihood of jury confusion, which could not have been anticipated at the pleading stage. Although it will of course be appropriate to take account in this circumstance of the already completed course of the litigation, dismissal of the state claim might even then be merited.
383 U.S. at 726-27, 86 S.Ct. at 1139 (emphasis added). And more recently the Court stated in Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988):
Under Gibbs, a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates that a ease properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the ease without prejudice.
Id. at 350, 108 S.Ct. at 619 (emphasis added).6 Thus the Court has imputed to the Gibbs step two inquiry a characteristic normally possessed by jurisdictional issues and rarely if ever by non-jurisdietional ones — the quality of being open to examination throughout the litigation.
Federal courts of appeals, including this circuit, have followed the Supreme Court’s lead and imputed to the Gibbs step two inquiry another characteristic of jurisdictional issues — that the court is obliged to raise it sua sponte. In Maguire v. Marquette University, 814 F.2d 1213, 1218 & n. 4 (7th Cir.1987), the district court had dismissed plaintiffs federal claim before trial and then proceeded to address a pendent state law claim on the merits. Although defendant did not raise a Gibbs step two issue on appeal, the Seventh Circuit declared that “because the rule is jurisdictional, we are obligated to raise it ourselves.” Id. at 1218 n. 4 (emphasis added). The court then vacated the district court’s dismissal of the pendent claim on the merits. This court has likewise treated Gibbs step two analysis as jurisdictional and raised the issue sua sponte. In Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354, 1361 (D.C.Cir.1990), the district court had previously dismissed both federal statutory and state contract claims brought under the Free Exercise Clause of the First Amendment. This coui’t held that the district court had correctly dismissed the federal statutory claims, but had incorrectly dismissed the state contract claims on First Amendment grounds. Without prompting, the court proceeded to hold that because the district court had properly dismissed the federal claim before trial, under Gibbs’s second step it should also dismiss the pendent state law claim unless it found diversity of citizenship. Id.
The majority dispatches Maguire and Minker by characterizing them as applica*1404tions of a newly coined Gibbs step one-and-a-half — cases where the federal claim survives step one but is dismissed before trial. Maj. op. at 1397 n.10. Thus, in its view, the Seventh Circuit’s and our treatment of that situation as jurisdictional can’t possibly mean that Gibbs step two is jurisdictional. But until the majority opinion, no one has perceived this circumstance as involving a special kind of Gibbs step; it is simply an instance of Gibbs step two so clear that any continued assertion of jurisdiction by the district court would be an abuse of discretion. See Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139.
The majority, if I read it correctly, says that Gibbs’s second step cannot be jurisdictional because it is “discretionary.” Maj. Op. at 1396-97. The analysis would be correct if the set of things that are “jurisdictional” could, as a matter of logic, not intersect with the sets of things that are “discretionary.” But that’s not true. Characterization of a matter as discretionary, at least in the Gibbs context, appears to reflect two closely related points. First, the analysis is highly case-specific, turning on a balance of issues that are typically fact-intensive and as to which the answers range along a spectrum rather than taking a simple yes/no form (e.g., the predominance of the state-law questions posed and the likelihood of jury confusion). See Gibbs, 383 U.S. at 726-27, 86 S.Ct. at 1139-40. Second, it follows that it will be difficult for appellate courts to articulate specific rules capable of guiding the trial courts, so that a deferential form of appellate review is suitable. See Mars Steel Corp. v. Continental Bank, 880 F.2d 928, 932-34 (7th Cir.1989) (en banc); Cooter & Gell v. Hartman Corp., 496 U.S. 384, 402, 110 S.Ct. 2447, 2459, 110 L.Ed.2d 359 (1990) (approving reasoning of Mars Steel Corp.). An issue with those characteristics can, without logical inconsistency, be jurisdictional as well. When an appellate court finds a district court has abused its discretion on Gibbs’s second step analysis, it can still — and I think should still — be understood as having resolved a jurisdictional issue. As I said before, what else could it be resolving?
Professor Shapiro, analyzing a very broad range of jurisdictional issues intertwined with discretionary choice (but not mentioning pendent jurisdiction), notes that in such cases there may be a question “whether the Court was construing the applicable statute as not conferring jurisdiction in the particular case, or was it relying on a discretion not to exercise jurisdiction that admittedly existed?” David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L.Rev. 543, 561 (1985). He thus divides the instances of jurisdiction-cum-discretion into two categories, the first jurisdictional (but with the decision recognized as having discretionary characteristics), the second a purely discretionary overlay on a choice of whether to exercise jurisdiction. He goes on to point out that the distinction may be important for purposes of practical matters such as “the ability of the court to raise a question sua sponte.” Id. at 562. Indeed. Here, the practical actions of courts — most specifically the Seventh Circuit in Maguire and ourselves (less explicitly) in Minker — mark Gibbs’s second step as jurisdictional.
Finally, the majority relies on language yanked out of context. It quotes Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974), for the proposition that
the view of “pendent jurisdiction as something akin to subject matter jurisdiction that may be raised sua sponte at any stage and that is capable of aborting prior federal court proceedings is a misreading of the law.”
Id. at 627, 94 S.Ct. at 1336, quoted by Maj. Op. at 1396. But there the majority was objecting to the dissent’s coming up with the idea of a remand to the district court for consideration of state law claims that the majority thought “were wholly tangential to the principal theme” of the lawsuit, id. at 624, 94 S.Ct. at 1335, and that had been dropped by plaintiffs at both stages of appellate review, id. Thus the Court was saying only that unlike issues of subject matter jurisdiction, state law claims that are susceptible of pendent jurisdiction are not on that account capable of being resurrected at any time, regardless of abandonment by the claimant.
*1405Accordingly, I believe the Gibbs step two balancing is properly regarded as jurisdictional and, for that reason, open to consideration in later phases of a lawsuit where it has not been mentioned before.
There remains the possibility that, if the above analysis is incorrect, LaShawn Fs silent resolution of the Gibbs step two issue was subject to the exception in law of the case for “clearly erroneous” prior decisions. As author of the panel opinion, I never suggested that LaShawn Fs resolution was clearly erroneous and would be most reluctant to impute any such error to my colleagues. Compare p. 1394 above (noting the unseemly character of overturning the opinion of a prior panel). Indeed, as my opinion for the panel made clear, there are strong values on both sides of the matter — among them two doctrines of judicial self-abnegation in favor of democratic political processes: deferring resolution of constitutional issues where possible, on the one hand, and keeping life-appointed federal judges from taking over the interpretation and application of democratically chosen local law, on the other. In any event, as LaShawn I never detectably addressed Gibbs’s second step I have no idea what Gibbs step two analysis might be at issue, and thus am ill-positioned to find error, much less clear error, in that decision.
Because I believe that law of the case does not bar later panels of a court from considering jurisdictional issues that a prior panel has resolved implicitly but not expressly, and that the second step required for pendent jurisdiction under Gibbs is indeed jurisdictional for purposes of that principle, I dissent.
. See, e.g., Green v. Dept. of Commerce, 618 F.2d 836, 839 & n. 9 (D.C.Cir.1980); Amusement & Music Operators Ass’n v. Copyright Royalty Tribunal, 636 F.2d 531, 532-33 & nn.2-4 (D.C.Cir.1980); Acton Corp. v. Borden, 670 F.2d 377, 379 n. 2 (1st Cir.1982); Crane Co. v. American Standard, 603 F.2d 244, 247 (2d Cir.1979); EEOC v. Neches Butane Products Co., 704 F.2d 144, 147 n. 2 (5th Cir.1983); Amen v. City of Dearborn, 718 F.2d 789, 794 (6th Cir.1983); Christianson v. Colt Industries Operating Corp., 798 F.2d 1051, 1056 (7th Cir.1986).
. Commentators have apparently not seen Christianson as wiping the slate clean. Wright and Miller said in 1981 that "[q]uestions of subject matter jurisdiction are particularly apt to be free of law of the case principles,” citing Potomac Passengers. Wright & Miller, Federal Practice and Procedure § 4478 at 799 n.32 (1981) (under the heading "Suitable to Reconsider"). "In addition to the great importance that is generally attributed to jurisdictional limits, such questions may at times involve matters of discretion that inherently require reexamination as a case progresses," id. (emphasis added), the latter phrase being apparently an allusion to step two of Gibbs. The 1996 Supplement to Wright & Miller does not modify that passage, 1996 Supplement at 704 n.32, and cites Christianson under the separate category of "Propriety of Transfer: Transferor reconsideration,” id. at 694-95 n. 26.
. The lone exception seems to be a case involving personal, not subject matter, jurisdiction. In the Matter of Oil Spill by the Amoco Cadiz Off the Coast of France on March 16, 1978, 954 F.2d 1279, 1292 (7th Cir.1992).
. When the majority in Pennhurst II overturned the Third Circuit's adjudication of the state law claims, the dissenters made the same point about Pennhurst I, saying that the majority was reversing "the Court of Appeals because it did precisely what this Court ordered it to do” — reinstate its prior judgment if state law provided an adequate and independent ground to support the remedial order. Pennhurst II, 465 U.S. at 126, 104 S.Ct. at 921-22 (Stevens, J., with whom Brennan, Marshall, & Blackmun, JJ., joined, dissenting).
. Because this litigation was commenced before December 1, 1990, the new supplemental jurisdiction statute, 28 U.S.C. § 1367 (Supp. V 1993), does not apply.
. Cf. Evans v. City of Chicago, 10 F.3d 474, 479 (7th Cir.1993) (en banc) (holding that mere consent of local officials, without a viable federal claim, could not justify continued enforcement of decree against city) ("[T]he court must ensure that there is a substantial federal claim, not only when the decree is entered but also when it is enforced, and that the obligations imposed by the decree rest on this rule of federal law rather than the bare consent of the officeholder.”) (emphasis added).