The Partially Prudential Doctrine of Mootness
61 Pages Posted: 30 Oct 2008 Last revised: 2 Oct 2015
Date Written: April 1, 2009
The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the "cases or controversies" clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model - which was first adopted by the Supreme Court less than 45 years ago - fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the "cases or controversies" clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider and resolve mootness issues based on practical considerations having nothing to do with the text of Article III, revealing an implicit understanding that federal courts have authority to decide moot cases independent of Article III considerations. Despite growing recognition that mootness doctrine is in a state of confusion, no one has yet articulated a theoretically coherent alternative, much less an alternative that also explains the manner in which federal courts actually apply mootness in close cases. The author argues that federal courts should - and in the most pertinent subset of cases, already do - apply mootness as a largely discretionary doctrine, and he offers the first sustained account of how this prudential doctrine of mootness operates in practice. Principally, courts apply two distinct doctrines of mootness - the first ("issue mootness") in circumstances where post-filing events moot the issue raised by the action, and the second ("personal stake mootness") in circumstances where post-filing events have mooted only the plaintiff's personal stake in that issue. Courts treat issue mootness as precluding federal jurisdiction, but treat personal stake mootness as supporting, but not requiring, dismissal. The ultimate decision whether to dismiss is driven by a number of prudential considerations largely independent of Article III. This partially prudential model of mootness has three advantages over the flawed Constitutional model: It is more theoretically consistent, it fits better with existing case law in the most important subset of mootness cases, and it is a step in the direction of a unified theoretical approach to questions of justiciability.
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