Important New Articles on Mootness and on Judge-Made Law

Anarba Groub

It’s the season for new formalist federal courts scholarship to appear on SSRN. I’ve previously mentioned my forthcoming piece on severability. But I’m also very proud to share two new pieces written by two of my recent students at Chicago, both important contributions to federal courts questions.

Here is Tyler Lindley, on the questions of whether “mootness” is a constitutional principle, akin to standing; and if so, on how the Court’s seemingly-prudential exceptions to mootness can be squared with Article III:

The Constitutional Model of Mootness

Article III limits the federal courts to deciding cases and controversies, and this limitation has given rise to the black-letter law of standing, ripeness, and mootness. But the law of mootness presents a puzzle: Over time, the Court has recognized various “exceptions” to ordinary mootness rules, allowing federal courts to hear arguably moot cases. On one hand, the Court consistently asserts that mootness doctrine, including its exceptions, is compelled by the original understanding of Article III. On the other hand, the scholarly consensus is that these exceptions are logically inconsistent with the Court’s claims about Article III and that their existence proves that mootness is fundamentally prudential, not constitutional.

This Article provides a coherent justification for the mootness exceptions. First, one set of exceptions are not really exceptions at all. 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. Second, the other set of exceptions, for class actions, are justified through a better understanding of the history of representative litigation. And that understanding also justifies the extension of the capable of repetition, yet evading review exception to non-parties who are similarly situated to the plaintiff. Modern mootness doctrine is therefore fundamentally consistent with the Court’s conception of the original understanding of Article III.

And here is Micah Quigley, on why it is unconstitutional for Article III courts to “make” law rather than to “find” it:

Article III Lawmaking

On the usual view, federal common law is judge-made by definition. Commentators and courts, of course, have long recognized the tension between judicial lawmaking and the Constitution’s scheme of separated powers. That concern is part of why federal common law governs only a few special areas. Yet within those areas, federal judges can and should act as lawmakers. Or so the story goes.

The Constitution says otherwise. Article III endows the judiciary with only the “judicial Power.” Historical evidence strongly suggests this phrase’s original meaning included no power to make law—not even common law. So if federal courts are to abide by the Constitution’s original meaning, they must quit making common law and start finding it instead.

If that is so, the courts need a lawfinding method. This Article—by looking to ancient principles of English law—provides one. Traditionally, common-law rules formed a web of continuous law; they enjoyed a measure of acceptance among the people; and they accommodated themselves to the nation’s extra-legal customs. Today’s federal courts can find law by identifying and applying rules that bear those same characteristics. Inversely, when courts fail to do so, they are likely attempting to make law.

This Article’s thesis and its lawfinding method have implications for the Supreme Court. The Court, its justices, and its doctrines sometimes operate on the assumption that judges can make common law. That this assumption usually goes unspoken does not make it constitutionally licit. 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 just great to see up-and-coming scholars making contributions in these areas!

Important New Articles on Mootness and on Judge-Made Law

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