Matthew I. Hall · April 2009
77 GEO. WASH. L. REV. 562 (2009)
The law of mootness lacks a coherent theoretical foundation. On the one hand, mootness has been regarded—at least since 1964—as a limitation on federal court jurisdiction, mandated by Article III of the United States Constitution. Under this account, because mootness is a constitutional, and not merely a prudential, limitation on federal court jurisdiction, it is not waivable, may be raised at any point in the litigation, and must be raised by the Court sua sponte where circumstances suggest a possible mootness issue.
On the other hand, courts routinely hear moot cases where strong prudential reasons exist to do so—a practice that cannot be reconciled with the belief that mootness is a mandatory jurisdictional bar. So-called “exceptions” to the doctrine of mootness endow courts with extensive discretion about which moot claims they will dismiss and which they will choose to hear.
Courts and scholars refer to the doctrines under which courts elect to hear moot cases as “exceptions” to the mootness bar, but these exceptions do not “prove the rule”—they debunk it. The exceptions to mootness do not appear to be based on any interpretation of Article III’s Case or Controversy Clause—as they would be if mootness were actually applied as a constitutionally-mandated limit on federal court jurisdiction. Rather, as articulated and applied, they are based on prudential considerations, such as protection of judicial efficiency and authority, the preference for sufficiently-motivated parties, and avoidance of party gamesmanship. The frequent invocation of these exceptions by federal courts is thus hard to reconcile with the conventional understanding of mootness as a constitutionally-mandated jurisdictional bar.
All of this is symptomatic of a deep confusion at the core of the modern understanding of mootness. Mootness doctrine, as currently constituted, does not provide the analytic tools necessary to explain or predict the results in a large number of mootness cases. The doctrine that ostensibly governs mootness decisions does not appear to be driving the analysis, or the results, in the most important subset of mootness cases—those where the result may depend on whether the mootness bar is understood as a prudential or a constitutionally-mandated doctrine. Without waiting for theoretical justification for abandoning the constitutional account, many courts already treat mootness as discretionary in the subset of cases in which there are strong prudential arguments for hearing a case, notwithstanding its mootness.
This article addresses both the descriptive and normative gaps in the mootness scholarship. I introduce an analytical framework for understanding mootness doctrine that improves on both the constitutional model and prior scholarly reform proposals. Principally, the nature of the mootness bar as constitutional or prudential depends on whether the issue raised by the plaintiff’s claim—as opposed to merely the plaintiff’s personal stake in that issue—has been rendered moot. I argue that federal courts apply two very different sets of mootness rules in those two kinds of cases. Where the issue itself is moot—that is, where the alleged wrongful conduct is neither ongoing nor reasonably likely to recur as to anyone—the Case or Controversy Clause requires dismissal and prudential concerns have no application. In contrast, when it is only the plaintiff’s personal stake that is moot—because the harm is reasonably likely to recur only as to someone other than the plaintiff—the textual Article III argument for dismissal is far weaker, and consideration of discretionary factors becomes appropriate. I then derive from the case law a number of prudential factors that should—and do—guide courts in the exercise of their discretion whether to dismiss moot claims.
This model offers three principal advantages over both the constitutional model of mootness and prior reform efforts by scholars: (1) it is more theoretically coherent, (2) it better explains current judicial practice in a wider range of mootness cases, and (3) it moves mootness doctrine into closer alignment with related justiciability doctrines, and thus is a step in the direction of a unified theoretical approach to justiciability.
The argument proceeds in three parts. Part I describes the conventional understanding of mootness—as a jurisdictional doctrine mandated by Article III. Part II addresses the theoretical and descriptive shortcomings in the prevailing constitutional model of mootness, and shows the pressing need for a new model adequate to the task of both explaining the results in past cases and providing guidance for future cases. Part III then introduces and defends a new model of mootness, the elements of which are implicit in much of the mootness case law, but which has never been explicitly developed. This new model rests on a critical, but underappreciated, distinction between two types of mootness—the first involving issues that have become moot, and the second involving live issues raised by parties whose personal stake in the issue has become moot. This Part demonstrates that courts often treat issue mootness and personal stake mootness quite differently—invariably dismissing “issue moot” cases while treating as discretionary the decision whether to dismiss “personal stake moot” cases. Part III.B identifies and explains the factors that ought to—and in many cases already do—guide courts in exercising their discretion. Part III.C defends this prudential model of personal stake mootness by analogy to the doctrine of third-party standing—which has always treated as entirely prudential a court’s decision whether to permit plaintiffs to establish the justiciability of their claim by reference to the rights of third parties. Part III.D then defends the proposed model of mootness against the charge that it does not go far enough—that issue mootness, too, should be regarded as prudential rather than constitutional.
