Important New Articles on Mootness and on Judge-made Law

This is the time of year for federal formalist courts to make their scholarship available on SSRN. My forthcoming article on seperability has been mentioned before. Two pieces I am proud to share with you are by my Chicago students. They both make important contributions to the federal court questions.

Tyler Lindley discusses whether or not “mootness”, a principle of the Constitution, is equivalent to standing. If so, how can the Court’s apparently-prudential exceptions regarding mootness be reconciled with Article III.

The Constitutional Model of Mootness

Article III restricts federal courts from deciding cases or controversies. This limitation led to the creation of the “black-letter law” of standing, ripeness and mootness. However, mootness law presents a problem. The Court has over time recognized different “exceptions” to the ordinary mootness rules, which allows federal courts the ability to hear potentially moot cases. The Court maintains consistently that the mootness doctrine (including its exceptions) is required by Article III’s original meaning. The scholarly consensus says that the Court’s assertions about Article III are inconsistent and that the existence of these exceptions proves that mootness, if not fundamentally prudential or constitutional, is the correct conclusion.

This Article provides a solid justification of the mootness exemptions. The first is that one exception does not necessarily mean there are any exceptions. Collateral consequences; voluntary cessation; and capable of repetition to the same plaintiff, yet evading review—these doctrines merely recognize a shift from a present harm to a potential future harm, which harm might be sufficiently likely to occur when examined in light of the Bayes Theorem. The second exception, which is for class actions, can be justified by a deeper understanding of the history and outcomes of representative litigation. This understanding justifies extension of the capable-of repetition, but evading review exception for non-parties that are in a similar position to the plaintiff. Therefore, modern mootness doctrine adheres fundamentally to the Court’s understanding of Article III.

Micah Quigley discusses why it is not constitutional for Article III courts that “make” rather than “find” law.

Art. III.

The usual view is that federal common law can be judge-made. Courts and commentators have recognized for a long time the tension between the Constitution’s separation of powers and judicial lawmaking. This is why the federal common law only governs a handful of special areas. However, these federal judges have the authority and responsibility to be legislators in those particular areas. This is the truth.

However, the Constitution does not say so. Article III grants the judiciary the only “judicial Power.” Historical evidence strongly suggests this phrase’s original meaning included no power to make law—not even common law. Federal courts must stop creating common law in order to follow the Constitution’s original meaning.

A lawfinding process is necessary for courts if that’s the case. This Article—by looking to ancient principles of English law—provides one. Common-law laws were a network of continuous law. They enjoyed some acceptance by the population and could adapt to any extra-legal requirements. Federal courts of today are able to identify and use the same rules in order to locate law. The reverse is true: courts who fail to recognize and apply these same features are more likely to try to make laws.

For the Supreme Court, this Article’s thesis (and its lawfinding process) have important implications. Court justices and doctrines often operate under the assumption that common law can be made by judges. This assumption is not constitutionally permissible simply because it goes unspoken. Accordingly, recognizing the need for lawfinding may help clarify a variety of (sometimes-surprising) doctrinal areas—from admiralty, to habeas corpus, to nondelegation, and more.

It’s great to see rising scholars contributing in this area.