The Constitutional Model of Mootness

Abstract

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 seeks to provide a coherent justification for the mootness exceptions within the constitutional model. First, some 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. And that harm might be sufficiently likely to occur when examined in the light of Bayes' Theorem. Second, the other 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 conceptually consistent with the Court's understanding of the original meaning of Article III.

Keywords: justiciability, federal courts, mootness, article III