Mooting Unilateral Mootness

Scott T. MacGuidwin February, 2023

Several situations cause a case to be moot. These include settlement agreements, party collusion, changes in litigant status, and extrinsic circumstances thwarting the court from granting any relief. The final reason is unilateral mootness—when a defendant ends a lawsuit against a plaintiff’s wishes by giving them everything for which they ask. In practice, this allows defendants to strategically stop lawsuits when it is clear they are not going to win. By doing so, they prevent the court from handing down adverse precedent and preserve the opportunity to engage in similar behavior with impunity. Courts have established a series of mootness exceptions to limit such gamesmanship. These exceptions are based on vague standards, which do little to guide judges making mootness decisions. The result is that some cases are heard on the merits, while other, nearly identical ones are dismissed. Unilateral mootness fails as a prudential doctrine. It struggles to limit disparate outcomes, prevent defendant gamesmanship, or save judicial resources, and alternative solutions do not fully address these three problems. This Note argues that the best recourse is to scrap unilateral mootness completely. Barring a settlement, collusion, or impossibility of relief, judges should never dismiss a case as moot.

We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.
Chief Justice John Marshall¹

Introduction

Chike Uzuegbunam was a student who wanted to share his Christian faith with classmates at Georgia Gwinnett College.² Uzuegbunam regularly handed out religious literature and spoke with interested students at the campus’s outdoor plaza.³ A campus police officer told him to stop.⁴ School officials then informed Uzuegbunam that he needed to secure a permit to use one of two “free speech expression areas.”⁵ Combined, these zones accounted for only about 170 square feet of the eleven-million-square-foot campus.⁶ The zones were open for two or four hours per weekday and were entirely closed during the weekend.⁷ Undeterred, Uzuegbunam got a permit and went to a free speech zone to discuss his religious beliefs.⁸ Police stopped him after twenty minutes.⁹ The officer told Uzuegbunam that his speech was disturbing the peace and comfort of others.¹⁰ Disruptive speech violated the student code of conduct.¹¹ Uzuegbunam decided to sue.¹²

Uzuegbunam sued college officials in federal court, alleging multiple First Amendment violations.¹³ First, he argued that limiting students to tiny free speech zones violated his free speech rights in the traditional public forum of the campus outside of these zones.¹⁴ Next, he alleged that the school’s permit procedures were unconstitutional prior restraints.¹⁵ The school lacked standards by which permits would be granted.¹⁶ The school also lacked standards for campus officers to follow when silencing students.¹⁷ Then, Uzuegbunam alleged that banning speech that causes student complaints constitutes unconstitutional viewpoint discrimination.¹⁸ He sought an injunction to stop the university from enforcing the speech policy, a declaration that the actions violated the First Amendment, and an award for nominal damages.¹⁹

College officials, perhaps realizing they were wrong (or likely to lose), changed their free speech policies midway through the lawsuit.²⁰ The officials argued that with this policy change, Uzuegbunam received everything he wanted.²¹ They moved to dismiss the case as moot, and the district court agreed.²² Uzuegbunam appealed to the Eleventh Circuit, arguing that he was still entitled to nominal damages.²³ The Eleventh Circuit disagreed with Uzuegbunam, affirming the lower court.²⁴ To be clear, for the purposes of the appeal, Georgia Gwinnett College did violate Uzuegbunam’s First Amendment rights.²⁵ Without an injunction or reprimand from the Eleventh Circuit, the college would be free to later return to its original policy. If it did, Uzuegbunam could not sue it again. By the time of the Eleventh Circuit’s decision, he was no longer a student,²⁶ so he would not be affected by this new policy.

Mootness is a doctrine requiring judges to dismiss some cases rather than reach their merits. A case is moot when there are no live issues, parties lack a legally cognizable interest in the outcome, or a court cannot grant any relief.²⁷ Governments and large corporations use mootness as a tool to vacate unfavorable decisions and avoid precedent limiting their unlawful actions.²⁸ Mootness prevents plaintiffs from vindicating their rights and impact litigation attorneys from establishing favorable precedent.²⁹

The Supreme Court ultimately decided that Uzuegbunam’s nominal damages claim could prevent mootness.³⁰ While this is good news for students challenging First Amendment violations, the outcome is unsatisfying. What exactly constitutes nominal damages? Some courts have valued nominal damages as being worth a single dollar.³¹ Could defendants moot cases by paying plaintiffs this single dollar of “nominal damages”?³²

Uzuegbunam continues a long trend of courts establishing exceptions when a case would otherwise be moot.³³ These exceptions help individuals vindicate their rights. In practice, however, plaintiffs do not advance their cases evenly. Similarly situated plaintiffs face different outcomes within and among circuits. These disparate outcomes stem from the vague doctrinal standards embodied in the mootness exceptions. Vagueness is particularly concerning in the mootness context because it harms judicial legitimacy, encourages defendant gamesmanship, and reduces judicial efficiency.

This Note proposes a novel solution: when constitutionally permitted, eliminate the mootness doctrine entirely. These are cases in which the defendant acts to moot a case despite the plaintiff’s desire to continue litigating. I will refer to this as “unilateral mootness.”³⁴ Unilaterally moot cases should either be heard on the merits or dismissed on other grounds, such as collusion, standing, or ripeness. Eliminating unilateral mootness would allow plaintiffs to vindicate their rights equally. And it would better address the concerns underlying existing mootness exceptions while imposing fewer costs on the doctrine itself.

In Part I, I argue that unilateral mootness is not a constitutional requirement. In Part II, I describe how vague standards in mootness exceptions lead to disparate dismissals among similarly situated litigants. In Part III, I outline the harms of unilateral mootness to the public, litigants, and the judicial system. Finally, in Part IV, I conclude that alternative solutions fail to fully address the harms of unilateral mootness and do not provide meaningful benefits over eliminating mootness entirely.

I. Unilateral Mootness as a Prudential Doctrine

Given this Note’s goal of undermining the prudential bases of mootness, I must first show that dismissing moot cases is not a constitutional requirement.³⁵ Mootness as a prudential doctrine is not a novel concept.³⁶ This Note does not provide a full attack on the constitutional model of mootness. Instead, I aim to summarize prior arguments to establish a prima facie case that many moot cases do not constitutionally require dismissal. To do so, I first divide mootness into several discrete categories. Next, I show that the purported constitutional bases for mootness largely do not apply to unilateral mootness.

A. Categories of Mootness

Mootness arises in five situations: (1) the plaintiff agrees to end the lawsuit (voluntary dismissal); (2) the court can no longer grant any relief (defunct remedies); (3) the identity or motives of the litigants change in a way that undermines the adversarial process (collusion); (4) the status of the plaintiff changes, but not in a way that undermines the adversarial process (change in status); and (5) the defendant acts to end the lawsuit over the plaintiff’s objections (unilateral mootness). ³⁷ Cases often implicate several of these categories, adding to the confusion over the constitutionality of mootness. I will briefly describe each scenario.

The first case of mootness arises when the plaintiff agrees to end the lawsuit or abandons the case. This may arise from a lack of funds, a desire to stop litigating, or a settlement agreement. Dismissal in these cases should not be controversial—the parties have agreed to it. To put simply, there is no longer a controversy between the parties.³⁸

The second case arises when extrinsic circumstances prevent the court from granting any relief. This category comprises a narrow set of cases in which the sole remedy is impossible for a court to grant or an element is now impossible to satisfy.³⁹ Suppose a plaintiff crafts a worthless wooden duck, which is promptly stolen by the defendant.⁴⁰ The relevant statutes do not provide for any compensatory or nominal damages, only injunctive relief. Now suppose the duck burns in a fire. The judge cannot order the defendant to return the duck because the duck no longer exists. No relief is available, so the case is moot. Similarly, suppose a plaintiff sues for defamation and later dies. Defamation lawsuits often require the plaintiff to prove damage to reputation. The deceased, however, have no entitlement to their reputation.⁴¹ Because the plaintiff’s estate cannot prove this element, the plaintiff’s death will moot the case.

The third case of mootness arises when events occur midlawsuit that may undermine the adversarial process. Here, one party’s ability to effectively litigate the case comes into question. One example of such an event would be collusion between the parties.⁴² This can also occur when the identity or motives of a litigant change, such as during a change in presidential administration.⁴³ These cases are properly dismissed as moot, as they fail the adversity requirement of Article III.⁴⁴

The fourth case arises when the status of a party changes but not in a way that implicates adversity. Here, the identity or status of a plaintiff changes midlitigation such that they cannot recover from a favorable decision. But unlike in cases of collusion, the events have not changed the incentives of either party in a way that affects their adversity. For instance, in DeFunis v. Odegaard, a rejected law school applicant challenged the University of Washington’s affirmative action policy.⁴⁵ The university admitted him pursuant to a trial court injunction.⁴⁶ At the Supreme Court, the university confirmed that they would allow the student to complete his degree regardless of the decision.⁴⁷ The case was dismissed as moot because the student was no longer an applicant and “will never again be required to run the [gauntlet] of the Law School’s admission process.”⁴⁸ A favorable injunction would not benefit him, nor would a defeat harm him. As I will argue, these cases are not constitutionally required to be moot.⁴⁹

The final case is unilateral mootness. Here, the defendant acts to end the lawsuit over the plaintiff’s objections. Admittedly, in most cases, plaintiffs are elated when the defendant surrenders. The plaintiff, after all, receives exactly what they were asking for. But there is a subset of cases in which plaintiffs do not wish for the lawsuit to end this way. Conceptually, unilateral mootness can come in two varieties. I term the first variety “plaintiff madness.” Here, “the defendant unconditionally surrenders and only the plaintiff’s obstinacy or madness prevents her from accepting total victory.”⁵⁰ In this situation, the defendant either realizes their mistake or does not want to deal with the hassle of a lawsuit.

I term the second variety of unilateral mootness “defendant gamesmanship.” Here, the defendant strategically behaves to render a case moot, to vacate a prior unfavorable decision, or to preempt a near-certain unfavorable decision.⁵¹ Mootness exceptions ostensibly allow judges to dismiss cases of plaintiff madness while preventing defendant gamesmanship.⁵² But as this Note will show, the risks of plaintiff madness are small, and existing exceptions have largely failed to prevent defendant gamesmanship.

B. Unilateral Mootness Does Not Implicate Article III Adversity Concerns of Underincentivized Parties

Unilateral mootness does not require dismissal under Article III.⁵³ One purported constitutional basis for mootness stems from concerns about the adversity of the parties in the proceeding.⁵⁴ Under Article III, courts cannot adjudicate cases when parties are not adverse.⁵⁵ The Court has not clarified the definition of “adversity,” but it often requires that parties “continue to have a ‘personal stake’ in the ultimate disposition of the lawsuit.”⁵⁶ This “personal stake” is a “legally cognizable interest in the outcome.”⁵⁷ In other words, to prevent dismissal, a plaintiff must be able to recover some legal remedy from the judgment. If a defendant gives a plaintiff everything they seek, the latter cannot recover any damages from the lawsuit.⁵⁸ This is how unilateral mootness could implicate adversity.

Adversity, however, is better understood not as a personal stake but as a set of circumstances that guarantee three functional goals are met. These functional goals include verifying that the parties are incentivized to adequately argue and present the issues,⁵⁹ ensuring such issues are sufficiently concrete,⁶⁰ and limiting interference with the political branches.⁶¹ Barring collusion, these concerns are not implicated in unilateral mootness.

In cases of unilateral mootness, parties are still incentivized to argue and present the issues adequately. From the plaintiff’s perspective, unilateral mootness is when the plaintiff remains adverse to the defendant despite the defendant’s attempt to deprive the plaintiff of their legal interest in the case.⁶² These plaintiffs choose to endure the high costs of litigation to present their case before the court.⁶³ From the defendant’s perspective, things are more complicated. Suppose the defendant strategically ceases the challenged activity to render the case moot in the hopes of returning to the challenged conduct later.⁶⁴ Their motives for mooting the case are for personal gain. If this attempt were to fail, they would still fight tooth and nail to avoid losing. Now suppose the defendant realizes their mistake, voluntarily ceases the challenged conduct, expresses this to the plaintiff, and the plaintiff still wishes to litigate to spite the defendant. The defendant is unlikely to put up much of a fight. Nor will they sharply present the legal issues. Functionally, a defendant trying to make a case go away rather than effectively litigating is unlikely to create good precedent. These cases of plaintiff madness are more likely to implicate adversity concerns.

Adversity concerns for these cases, however, should not be overstated. The Federal Rules of Civil Procedure permit parties to stipulate to certain facts and interpretations of law when deciding a case.⁶⁵ Stipulations as to specific factual or legal conclusions do not implicate constitutional adversity concerns.⁶⁶ Stipulations do not collusively create precedent because these disputes were not litigated in the first place.⁶⁷ Similarly, such stipulations as to the proper disposition of the lawsuit would not create precedent. For the forlorn defendant facing a case of plaintiff madness, stipulating to every element of the plaintiff’s claim might be the fastest way to end the case.⁶⁸ This would also allow the defendant to avoid a loss at the appellate level. Stipulating mitigates functional fears of a nonconfrontational defendant creating bad law. Of course, when a defendant’s motives are aligned with the plaintiff’s in a collusive manner, a judge can still dismiss the case. ⁶⁹ In these cases, collusion, not unilateral mootness, is the reason for dismissal.

The requirement for a plaintiff to have a personal stake in the outcome of any case they bring is a recent invention of the mootness doctrine,⁷⁰ and there is no evidence the Framers imagined such a requirement.⁷¹ Recent cases have also put the personal stake requirement into question. In Uzuegbunam, the student plaintiff had graduated, so the Court used nominal damages to give him a continued personal stake in the university policy.⁷² The common law basis underlying Uzuegbunam suggests that nominal damages mirror their historical role in trespass actions.⁷³ But in these historical trespass actions, the personal stake that landowners had in nominal damages took the form of a court order proving ownership of the land.⁷⁴ The practical benefit was prospective relief, primarily preventing future claims of adverse possession.⁷⁵ Chike Uzuegbunam lacked any prospective relief and therefore also lacked a personal stake in receiving these nominal damages.⁷⁶ Even so, he advanced his case.

C. Unilateral Mootness Does Not Implicate the Concreteness Concerns of Advisory Opinions

Moot cases are often described as “advisory opinions.”⁷⁷ The modern understanding of the bar on advisory opinions includes functional concerns over the quality of these opinions. Advisory opinions lack the concreteness of a question “precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a [multifaceted] situation.”⁷⁸ Without a concrete factual basis, dealing with an abstract problem is likely to result in a worse solution, one which is ungrounded in reality.⁷⁹ Moot cases are not abstract. Once a court determines that a plaintiff has standing and the case is ripe, the situation is sufficiently concrete. Intervening events do not lead to abstract, pretended controversies, nor do they make the factual basis of the case less concrete.

D. Unilateral Mootness Does Not Implicate Separation of Powers Concerns

Mootness may be rooted in separation of powers concerns.⁸⁰ Judges are loath to provide opinions about the validity of executive or legislative actions in nonadversarial and nonjudicial settings, lest they become vetoes on the political process.⁸¹ Under this view, justiciability doctrines ensure that federal courts do not “intrude into areas committed to the other branches of government.”⁸² This concern of judges overstepping their role fails to justify unilateral mootness.

Suppose a government passes an unconstitutional law, and a court allows an aggrieved party to sue. This core power of judicial review does not infringe on the legislature’s powers. But if this same law were repealed, then the plaintiff could no longer sue, as they would lack standing. Why would judicial review infringe on the legislature’s powers after the law is repealed? While repeal may be a sign of the political process working properly, it could also indicate government gamesmanship. Government officials often repeal laws or accede to plaintiff demands as soon as a lawsuit is threatened for the express purpose of avoiding adverse precedent.⁸³ These same government actors often reengage in the same behavior as soon as the present plaintiff has been dealt with.⁸⁴ The need to address unconstitutional measures may have motivated some of the mootness exceptions.⁸⁵

Effective judicial review is a vital aspect of checks and balances.⁸⁶ By discarding a case as moot, federal courts fail to provide guidance to future litigants on whether future challenges could be mounted barring mootness.⁸⁷ Courts should be forthright if there is not any law to bear on a particular topic.⁸⁸ Courts should also be explicit if the judiciary cannot provide relief for other compelling reasons.⁸⁹

Cases of unilateral mootness, unlike other categories of mootness, have a weak constitutional basis. These cases lack the common constitutional rationales of other cases dismissed on justiciability grounds. Given this weak constitutional grounding, judges should hear moot cases unless dismissal serves prudential goals.

II. Vagueness in Mootness Doctrine Leads to Disparate Outcomes

Professor Lea Brilmayer suggests that mootness derives value by permitting a “smooth allocation of power among courts over time.”⁹⁰ She suggests that judges should not decide cases that are not adequately presented, including moot cases.⁹¹ Under this view, mootness plays a similar role to stare decisis. While stare decisis reflects the respect courts have for earlier decisions, mootness reflects the respect courts have for future decisions. This rationale is undercut by the disparate impacts caused by the vague standards in the mootness exceptions and uncertainty following the recent decision in Uzuegbunam.

A. Vague and Arbitrary Mootness Exceptions Lead to Disparities in Which Cases Are Heard on the Merits

To mitigate the harms mootness can cause plaintiffs, the Court has carved out four exceptions for otherwise moot cases: (1) collateral injuries after redressing the main injury; (2) issues that are capable of repetition yet evade review; (3) mootness caused by a defendant’s voluntary cessation; and (4) class actions.⁹² Each of these exceptions is based on vague standards that require judges to draw conclusions based on their perceptions of the litigants’ motives. As a result, two judges in the same circuit can reach different decisions based on identical facts.

The collateral consequences exception depends on judges’ perceptions of which collateral injuries are “significant.” The injuries capable of repetition exception similarly depends on judges’ predictions of whether harms are “likely to recur.” The voluntary cessation exception depends on judges’ perceptions of the defendant’s motives. And lastly, the “substantive” class action exception largely relies on the same vague standards of the other three primary exceptions.

1. Collateral Consequences

The collateral consequences exception to mootness occurs when a plaintiff suffers “collateral” harms even after the primary injury is remedied.⁹³ Cases should not be dismissed if a court’s decision is likely to have some future effect.⁹⁴ In Super Tire Engineering Co. v. McCorkle, the Court held that employers could challenge a state law permitting striking workers to receive welfare benefits, even after the strike.⁹⁵ This case was not moot because a court decision could affect future labor negotiations.⁹⁶ Similarly, in Carafas v. LaVallee, the Court permitted a criminal defendant to challenge his conviction even after he was released from custody.⁹⁷ The Court held that his designation as a felon imposed sufficient collateral consequences to stave off mootness.⁹⁸ This designation disenfranchised him, limited his employment opportunities, and prevented him from serving as a juror.⁹⁹ The Court in Sibron v. New York held that the prospect of character impeachment in future trials could stave off mootness.¹⁰⁰

Lower courts have not interpreted this decision exception as broadly. Many judges dismiss cases when collateral consequences seem unlikely to harm the plaintiff.¹⁰¹ The Seventh Circuit requires that collateral consequences have a “substantial adverse effect on the interests of the petitioning parties.”¹⁰² The D.C. Circuit has limited the reach of Super Tire to times when consequences stem from the “ongoing impact of state law.”¹⁰³ Each of these circuits’ vague standards does little to help judges in deciding which cases advance.

The Supreme Court’s efforts to clarify these vague standards have led to arbitrary distinctions. The Court in Lane v. Williams held that collateral effects are not sufficient when only “certain non-statutory consequences may occur,” including “the sentence imposed in a future criminal proceeding.”¹⁰⁴ It is hard to reconcile why impeachment of character can constitute a collateral consequence while effects on sentencing enhancements cannot.¹⁰⁵

2. Issues Capable of Repetition but Evading Review

Another mootness exception arises when an injury is too short lasting for a court to decide the case on the merits.¹⁰⁶ Two criteria must be met for this exception: “(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.”¹⁰⁷ Each of these two prongs is vague and has led to disparate outcomes.

a. Challenged Action Is Inherently Short-Lasting

For the first prong—whether a challenged action is inherently short lasting—judges must assess whether a particular case will be moot before the full appellate process is completed. This ultimately depends on two factors: (1) how long a controversy lasts and (2) how long cases take to litigate.

For the first factor, determining the duration of a controversy is often easy. A ten-day restraining order restrains for ten days.¹⁰⁸ Other cases are harder, requiring judges to examine how long categories of actions last on average.¹⁰⁹ This depends on how broadly one defines the category.

The second factor, the duration of litigation, is influenced by the court, the litigants, and the complexity of the case. The D.C. Circuit opted for a fixed time, deciding that “orders of less than two years’ duration ordinarily evade review.”¹¹⁰ Other courts analyze this factor by considering the average length of the appellate process.¹¹¹ This strange approach selectively dismisses cases based on how effectively the court manages its docket. It also ignores judges’ ability to speed up certain cases. The Supreme Court, for example, decided United States v. Nixon sixteen days after oral arguments.¹¹² Several circuits, recognizing this ability for expedited review, find cases moot when plaintiffs fail to ask for such review.¹¹³ This requirement puts plaintiffs in a tough spot. Plaintiffs may fear that expedited review will lead to less careful consideration of the facts and law. They must balance the risk of dismissal on mootness grounds with the risk of a rushed decisionmaking process.

b. Injury Likely to Happen to the Plaintiff Again

Nebraska Press Ass’n v. Stuart offers an example of the second prong: injuries likely to happen to the plaintiff again.¹¹⁴ There, a state court prohibited those attending a trial from reporting on the proceedings.¹¹⁵ By the time the Supreme Court heard the case, the gag order had ended.¹¹⁶ The case was not moot, however, because the defendant might have had his conviction reversed, and prosecutors might have sought similar gag orders.¹¹⁷ At other times, the Court has forecasted lower probabilities of future injuries. In City of Los Angeles v. Lyons, police stopped a Black motorist for a traffic stop. Despite the motorist “offer[ing] no resistance or threat whatsoever,” the police used a chokehold, “rendering him unconscious and causing damage to his larynx.”¹¹⁸ The Court, denying injunctive relief, held that the motorist did not “make a reasonable showing that he will again be subjected to the alleged illegality.”¹¹⁹ Justice Thurgood Marshall, in dissent, noted that this traffic stop occurred during a five-year period in which “LAPD officers applied chokeholds on at least 975 occasions, which represented more than three-quarters of the reported altercations.”¹²⁰ To get around these issues evading review, some circuits have allowed this exception to extend to others challenging the same policy after it becomes moot to the original plaintiff.¹²¹ Others have not.¹²²

One statute that often leads to disparate mootness outcomes is the Individuals with Disabilities Education Act (IDEA). IDEA and its predecessor, the Education of the Handicapped Act (EHA), both guarantee an “appropriate public education” for all disabled students.¹²³ School districts determine this appropriate education through individualized education programs (IEPs).¹²⁴ These IEPs are reviewed annually,¹²⁵ so challenges to these programs often implicate mootness. One such case is Honig v. Doe.¹²⁶ Jack Smith’s IEP recommended that he be placed on a half-day schedule.¹²⁷ Despite this IEP, the school assigned him to a full-day program, leading to behavioral challenges for Smith.¹²⁸ The school suspended him indefinitely.¹²⁹ During this period, another student, John Doe, sued another school on similar grounds for violating the EHA.¹³⁰ Fearing litigation, Smith’s school canceled his hearing and gave his grandparents the choice of a continued education at the school or home tutoring.¹³¹ They chose the latter option.¹³² Smith then joined Doe’s lawsuit.¹³³ Smith no longer faced expulsion or suspension proceedings, nor did he reside within the school district.¹³⁴ Yet the Court held that the case was not moot.¹³⁵ The Court noted that given Smith’s history of behavior, the inherent subjectivity with IEPs, and the possibility of harm in other school districts, injury was likely to reoccur.¹³⁶

Some circuits have rejected similar IDEA challenges if the legal controversy is too “sharply focused on a unique factual context.”¹³⁷ For instance, the D.C. Circuit held that a challenge to an IEP’s prescribed class sizes was moot when the IEP expired at the end of the school year.¹³⁸ Although the same class size problems were likely to arise in each subsequent year’s IEP, the challenge did not fit this mootness exception because each year would invoke “materially different factual context[s].”¹³⁹ Circuits with the distinction between “unique” and “broad” factual contexts do not share a test on differentiating between the two.¹⁴⁰ For this reason, other circuits reject this distinction.¹⁴¹

3. Voluntary Cessation

The voluntary cessation exception arises when the defendant ceases the challenged activity in a way that fails to make “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”¹⁴² This exception requires courts to analyze the defendant’s motives and to predict the future effect that dismissal will have on a defendant’s behavior. Vague standards within circuits have led to disparate outcomes for materially similar facts, and arbitrary distinctions between circuits have led to a disparate application of this exception.¹⁴³

Circuits face the unenviable challenge of establishing a neutral way of assessing the intent of defendants. The Fifth Circuit provides government defendants with a presumption of mootness and “solicitude” while simultaneously requiring them to surpass the “formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”¹⁴⁴ Plaintiffs can rebut this (contradictory) presumption of mootness with the Fenves test.¹⁴⁵ One aspect of this test requires a judge to assess the motives of the defendant by examining whether the timing of the voluntary cessation is suspicious.¹⁴⁶ Defendants act suspiciously, for example, by changing policies after losing in district court¹⁴⁷ or before oral argument.¹⁴⁸ Actions that lead to favorable vacatur are also suspicious.¹⁴⁹ Executive orders expiring on their own terms, however, are not suspicious.¹⁵⁰ While case law can provide more guidance over time, the stepwise procedure of assessing which defendants are suspicious gives judges a great deal of power in deciding which cases advance.

Because each circuit clarifies these vague standards differently, the circuits have begun to diverge. These circuit splits lead to disparate outcomes depending on where litigants file their cases. Consider prison litigation. The Fourth Circuit rejected a prison’s attempt to moot a deaf inmate’s disability rights challenge by providing him with a sign-language interpreter.¹⁵¹ Similarly, the Eleventh Circuit rejected a prison’s attempt to moot a Jewish inmate’s religious challenge to his meals by providing kosher diets to the prisoner’s unit.¹⁵² The First Circuit, on the other hand, held that a prison successfully mooted a Jewish prisoner’s case by providing him kosher meals, even if it did not implement any systemic policy changes.¹⁵³

4. Class Actions

Other mootness exceptions address the problem of defendants staving off class certification by mooting class representatives’ individual cases.¹⁵⁴ The class action exceptions arise when the class representatives’ claims become moot while other class members have nonmoot claims. Courts have established two types of exceptions to address this situation: a class certification exception to “enable a class action to continue notwithstanding the subsequent mootness of the class representative’s claims”¹⁵⁵ and substantive exceptions.¹⁵⁶

The class certification exception states that class actions are not moot so long as the class certification decision has been made.¹⁵⁷ This exception applies even if the class certification is rejected¹⁵⁸ and no other mootness exception applies.¹⁵⁹ Mootness, however, can still stymie class representatives. Courts have split as to whether precertification mooting of a plaintiff’s claim moots the class action.¹⁶⁰ Additionally, in the similar Fair Labor Standards Act (FLSA) context, plaintiffs cannot argue any class action exception for mootness, regardless of certification status.¹⁶¹ Lastly, the Court has “explicitly refused to address the lingering collateral question of whether a named plaintiff may appeal an adverse class certification decision after voluntarily settling his or her individual claim.”¹⁶²

Substantive exceptions largely mirror the exceptions applicable to individual claims, including issues capable of repetition but evading review¹⁶³ and voluntary cessation.¹⁶⁴ The exception for unaccepted Rule 68 offers will be discussed later in this Note.¹⁶⁵

B. Unpredictable Nominal Damages after Uzuegbunam

The common law dictates which remedies are appropriate in redressing a plaintiff’s injury.¹⁶⁶ These include compensatory damages, injunctions, prospective relief, and declaratory relief.¹⁶⁷ For a remedy to stave off mootness, it must redress the underlying injury. Awards such as attorneys’ fees¹⁶⁸ and costs of the lawsuit¹⁶⁹ are insufficient. Uzuegbunam left open the question of whether nominal damages are available when other relief can be established. Suppose a state employee is fired for his political speech. The employee sues, alleging a First Amendment violation. The government employer rehires the employee, fully compensates them with back pay, and stipulates that they will end this policy. Unlike in Uzuegbunam,¹⁷⁰ economic damages were available and paid to the plaintiff. Could the employee continue their lawsuit by arguing for nominal damages? Uzuegbunam allows for at least three possibilities.

Justice Brett Kavanaugh raised the first possibility in his concurrence in Uzuegbunam.¹⁷¹ Under this view, nominal damages are real injuries, though paltry ones worth only a dollar. So long as the state employer adds one dollar of nominal damages to a Rule 68 offer of back pay, or a Rule 67 deposit into court, the case should be dismissed.¹⁷² The government avoids unfavorable precedent for the low price of one dollar. But this approach undercuts the value of having nominal damages at all. Rather than acting as a tool to vindicate rights, nominal damages act as a trap for the unwary defendant who fails to add an extra dollar when fully compensating a plaintiff. After the Supreme Court’s decision in Uzuegbunam, school officials tried to dispose of Uzuegbunam’s case this way.¹⁷³ On remand, the district court rejected this attempt.¹⁷⁴

The second possibility is that nominal damages are available only when economic damages cannot be proven or are unavailable. This approach follows the common law reasoning of Uzuegbunam.¹⁷⁵ Historically, nominal damages served as a method of declaratory relief when “no general declaratory judgment act” existed.¹⁷⁶ One example of this was a completed trespass to property.¹⁷⁷ Owners would vindicate their rights by suing for nominal damages for the completed trespass to declare their property boundaries indirectly.¹⁷⁸ In the government employer hypothetical, the remedy of back pay and statutory damages precludes the possibility of nominal damages. The employee’s case would therefore be moot.

The third possibility is that nominal damages can stave off mootness even when other relief is available—which is supported by the discussion in Uzuegbunam regarding the concreteness of nominal damages.¹⁷⁹ This possibility endorses the impulse to provide nominal damages as a way for plaintiffs to vindicate their rights. Under an expansive view of nominal damages, any constitutional or statutory injury to a plaintiff could give rise to damages beyond purely economic damages.¹⁸⁰ No change in defendant behavior could moot the lawsuit, and cases of unilateral mootness would no longer be moot. The Tenth and Eleventh Circuits raised this fear of “mooting mootness” before Uzuegbunam.¹⁸¹ Less expansive views could prevent Uzuegbunam from mooting mootness, but this would lead to more disparate outcomes until the Court explains the meaning of “nominal damage.” In the government employer hypothetical, the case would not be moot so long as the plaintiff is entitled to nominal damages.

Overall, this third possibility seems to be the most likely outcome given the expansive language of Uzuegbunam. Because the Court has not yet clarified what constitutes nominal damages, this will be up to lower courts to determine. Nominal damages have opened another door to further judicial confusion and disparate outcomes.

Mootness doctrine treats similar litigants differently. The four mootness exceptions are based on vague standards, leading to uncertainty and disparate outcomes within and between circuits. The Supreme Court’s recent opinion in Uzuegbunam leads to more uncertainty as to which plaintiffs facing unilateral mootness can advance their claims. Current doctrine harms the public and plaintiffs.

III. Harms of Unilateral Mootness to the Public and Plaintiffs

The vagueness and resulting disparate outcomes in mootness doctrine harm judicial legitimacy. Unilateral mootness leads to government and corporate defendants engaging in gamesmanship. Unilateral mootness also costs more judicial resources than it saves.

A. Vague Standards and Disparate Outcomes Harm Judicial Legitimacy

Threshold determinations are easily manipulable, and many believe that they permit judicial activism.¹⁸² Vague standards exacerbate this problem.¹⁸³ Admittedly, the standards guiding standing and ripeness are also vague. But vagueness in mootness is especially harmful because it enables defendant gamesmanship midlawsuit—often only after it becomes clear that the defendant will lose.¹⁸⁴ Given that mootness is on weaker constitutional footing than these other doctrines,¹⁸⁵ curtailing vagueness by eliminating mootness raises fewer constitutional concerns. Lastly, unlike for issues of standing and ripeness, allowing more cases to reach the merits is likely to save judicial resources rather than open the floodgates.¹⁸⁶

Judges do their best to operate ethically and to not let their biases influence their legal decisionmaking.¹⁸⁷ Still, the presence of disparate outcomes reveals two closely related problems. First, dismissing moot cases deprives litigants, judges, and the public of the judge’s analysis of the merits. Second, these disparate outcomes may harm the public’s perception of the judiciary.

1. Dismissal of Moot Cases Stymies the Public from Assessing the Legality of These Cases on the Merits

Judges often reach different results in cases with similar facts. Much of jurisprudence is dedicated to the role that broad standards play in legal systems.¹⁸⁸ Vague mootness standards, however, differ from vague standards underlying the merits of the claim. Deciding cases on the merits benefits litigants, the public, and the judiciary.

Decisions on the merits assist both current and future litigants. Giving reasons on the merits shows current litigants respect.¹⁸⁹ It also informs future litigants of the legality of the challenged practices. If a decision favors the defendant, it reduces the chilling effect for future defendants and stops continued harassment by plaintiffs. Similarly, a decision favoring the plaintiff would deter the illegal activity and would permit future plaintiffs to use the case as precedent. Mootness is particularly harmful to plaintiffs in qualified immunity cases, which require plaintiffs to prove that a constitutional right is “clearly established” to advance their case.¹⁹⁰

Judicial reasoning on the merits is also valuable to present and future judges.¹⁹¹ One benefit of precedent is that it “allows each judge to build on the wisdom of others.”¹⁹² Judges often adopt reasoning from other circuits, states, or foreign systems.¹⁹³ Judges also use horizontal precedent to unveil and correct flawed lines of reasoning.¹⁹⁴

Finally, addressing a case on the merits provides many benefits to the public.¹⁹⁵ Unpopular decisions can spur legislative change. In Kelo v. City of New London, a homeowner challenged her city’s use of eminent domain, which forced her from her home to make way for a Pfizer research facility.¹⁹⁶ The Court held that economic revitalization justified the city using eminent domain to seize the homeowner’s “Little Pink House.”¹⁹⁷ This decision was wildly unpopular.¹⁹⁸ Soon after, President George W. Bush restricted the federal government’s use of eminent domain through an executive order.¹⁹⁹ Forty-seven states then enacted eminent domain reform laws.²⁰⁰ Asking the average voter to understand the intricacies of justiciability doctrine is unreasonable. Disposing of these cases on mootness grounds means they are never brought to light, denying the public an opportunity to respond.

2. Disparate Outcomes Resulting from Vague Mootness Standards Harms the Public Perception of Courts

Disparate dismissal of cases based on vague standards harms the public perception of the courts. Professor Ashley S. Deeks argues that the federal judiciary maintains legitimacy through reason-giving to the public.²⁰¹ She argues that because federal judges are unelected, they instead foster legitimacy through “highly developed norms and practices of reason-giving.”²⁰² Reason-giving builds legitimacy by showing that the decision was constrained by established legal principles.²⁰³ It also makes outcomes more palatable for the losing party.²⁰⁴ Decisions based on mootness are certainly reasoned decisions. But the nature of mootness decisions leads them to fail on both accounts. The vague standards and disparate outcomes show how unconstrained these decisions tend to be. The nature of threshold dismissals risks litigants feeling that their case was not heard.

The vague mootness standards do little to constrain judges. Reason-giving legitimizes the judiciary because it constrains decisionmakers.²⁰⁵ A reason “creates a kind of promise about future behavior, which itself serves as a constraint.”²⁰⁶ Although judges may feel constrained by the mootness standards, the evidence of disparate outcomes suggests a wide range of outcomes. Many judges also use mootness as a constitutional avoidance technique.²⁰⁷

Decisions based on mootness are unlikely to be palatable to the losing party. A decision on threshold considerations may lead the losing party to feel that they were not heard by the judge.²⁰⁸ Although judges are less likely than the general population to act on biases when factors like race are made explicit, they are still susceptible to using heuristics in making decisions.²⁰⁹ Further, public perception does not hinge on a judge’s actual biases. The presence of mootness exceptions may lead skeptics to believe judges are distorting the factors. Public perception is an important aspect of the proper functioning of legal systems. In the military context, even the appearance of impropriety may be sufficient to dismiss charges.²¹⁰ When possible, judges should say the quiet part out loud. Federal courts must prevent the perception of judges picking and choosing mootness exceptions to dispose of unfavorable cases.

B. Unilateral Mootness Permits Government Gamesmanship

Government actors often use mootness to evade unfavorable precedent. Indeed, governments have used mootness to infringe on individual liberties in cases across the political spectrum. Eliminating unilateral mootness would better allow the judiciary to check the other branches, better protecting individual liberties and minority interests.²¹¹

By mooting cases that are likely to lose on appeal, government defendants insulate their behavior from judicial review.²¹² Government defendants can lose a case, claim voluntary cessation prior to appeal, and vacate the unfavorable decision below.²¹³ The Court has held that the practice of vacating judgments on appeal is an “extraordinary remedy,”²¹⁴ which should only occur when the mooting event is “happenstance”²¹⁵ or the “unilateral action of the party who prevailed in the lower court.”²¹⁶ This language suggests that losers cannot vacate cases.²¹⁷ In practice, judges take a more flexible approach. The Supreme Court continues to vacate plaintiffs’ favorable decisions when they believe that no defendant gamesmanship is afoot.²¹⁸ When the Court is suspicious, it “remand[s] the case to the District Court with leave to the appellants to amend their pleadings.”²¹⁹ Lower courts do the same.²²⁰

Mootness has been used as a tool to silence the constitutional rights of incarcerated people.²²¹ Prison systems fight tooth and nail against pro se prisoners but often “cut and run” when these same prisoners retain effective counsel, offering settlements or fixing problems at the individual level.²²² In other instances, wardens transfer inmates to a different prison and promise not to transfer them back.²²³ Nonetheless, these cases are considered moot because the original prison’s maltreatment of these inmates is not “capable of repetition.”²²⁴

Mootness has also been used to silence the constitutional rights of firearm owners in New York City. In New York State Rifle & Pistol Ass’n (NYSRPA), the petitioners challenged a regulation restricting licensed gun owners from transporting firearms outside their homes.²²⁵ After the Court granted certiorari, the city amended the relevant laws, adding narrow exceptions for second homes and gun ranges.²²⁶ These, incidentally, were the locations where the petitioners wished to take their firearms.²²⁷ New York claimed the amendments were made in good faith.²²⁸ Last year, the LGBTQ-friendly city council made the puzzling move of repealing a ban on conversion therapy.²²⁹ One council member explained the strategy was to moot existing lawsuits and reinstate the measures once the makeup of the federal judiciary was more favorable.²³⁰ Ultimately, the Court dismissed NYSRPA as moot.²³¹

Eliminating unilateral mootness would protect plaintiffs from gamesmanship. Defendants could no longer vacate unfavorable decisions. Prisons could no longer avoid adverse court decisions by transferring prisoners back and forth. Additionally, the Court would either need to address the merits of the NYSRPA decision or use another method to sidestep a decision.²³² Such a decision would afford plaintiffs the relief they were seeking or put New York on notice that the Court considers these actions constitutionally questionable.

C. Unilateral Mootness Permits Corporate Gamesmanship

Unilateral mootness permits large corporations to evade precedent and class actions. One example includes collective actions under the Fair Labor Standards Act (FLSA). In Genesis Healthcare Corp. v. Symczyk, the Court held that these actions are not justiciable when the individual plaintiff’s claim is moot.²³³ There, the Court dismissed the action based on the lower court’s finding that the defendant’s settlement offer provided the plaintiff full relief.²³⁴ This decision endorsed the practice of defendants paying off individual plaintiffs to stave off FLSA collective actions. The Court held in Campbell-Ewald Co. v. Gomez that unaccepted settlement offers to named representatives cannot moot a putative class action.²³⁵ The case did not address, however, whether a class action or other collective action can be maintained if the named representative’s claim is mooted in some other method of precertification.²³⁶ Circuits continue to invoke Genesis Healthcare in the class action context, permitting defendants to moot cases by exploiting a question that Campbell-Ewald left unsolved: If a defendant deposits the full relief into the named plaintiff’s bank account, can the court enter judgment on this offer?²³⁷

Some circuits see these unsolicited payments by the defendant as gamesmanship.²³⁸ The D.C. Circuit, however, views a case as moot so long as a plaintiff has received full monetary damages, even if the named plaintiff refuses to cash the check.²³⁹ Some district court judges in other circuits have followed the D.C. Circuit’s lead.²⁴⁰ The Second Circuit, while refusing to moot cases for that reason,²⁴¹ does permit a court to enter judgment for the named plaintiff on an unaccepted settlement offer.²⁴² This approach still prevents class certification.²⁴³ The Ninth Circuit has held that depositing full relief in escrow does not constitute acceptance.²⁴⁴ But it regularly permits courts to enter judgment on unaccepted offers when the defendant “unconditionally surrenders and only the plaintiff’s obstinacy or madness prevents her from accepting total victory.”²⁴⁵

Permitting defendants to moot cases in this fashion presents several problems for plaintiffs. First, entering judgments on Rule 68 settlement offers allows companies to pick off individual plaintiffs to preempt class actions. Further problems arise when circuits moot these cases. When a case is mooted, defendants avoid adverse precedent. Because mootness does not constitute a “victory” under attorney fee-shifting statutes, some plaintiffs (or their attorneys) may lose more money in litigation than they receive from the defendant.²⁴⁶ Attorneys may be less willing to represent such plaintiffs if they cannot recover their fees from the defendant.

D. Unilateral Mootness Fails to Save Judicial Resources

Justiciability doctrines are often justified by concerns of judicial economy.²⁴⁷ Standing, for instance, permits courts to save their limited resources for disputes in which parties have concrete, redressable stakes in the outcome of their case.²⁴⁸ These concerns are misguided for mootness.

Unilaterally moot cases are often dismissed at the appellate stage after one or more judges have already decided the case on the merits. Often a great deal of judicial resources has already been used, and “abandonment of the case may prove more wasteful than frugal.”²⁴⁹ The judicial resources rationale certainly cannot explain the Court’s decision in NYSRPA; the litigants ultimately returned to the Supreme Court, succeeding on similar grounds as the first case.²⁵⁰ When judicial resources are a concern, strengthening standing or ripeness doctrines would be more effective in limiting cases than mootness.

Admittedly, dismissing a moot case shortly after a complaint has been filed may conserve resources. But even mooting cases at early stages may ultimately prove to be more costly. Many of these cases are later relitigated—at times by the same parties. In one case, the Trump Administration allowed a challenged Obama-era policy to expire midlitigation.²⁵¹ A court dismissed the case as moot, citing the recent change in presidential administration.²⁵² Soon after, the Biden Administration reinstated this same policy.²⁵³ This rigmarole took nearly a decade to resolve. Litigating the merits in the first instance would have been a far more efficient use of resources.

IV. Alternative Solutions Fail to Fully Address Vague Standards

While many scholars have proposed reforms to simplify mootness, these solutions fail to address the root of the problem: vague standards that lead to disparate outcomes and gamesmanship. The solution that best remedies the problems with current mootness doctrine and upholds the prudential goals of mootness is to eliminate the unilateral mootness doctrine.

A. Simplifying the Doctrine Is Not Enough

Many scholars and judges have proposed alternatives to simplify the mootness doctrine in hopes of improving judicial efficiency or remedying defendant gamesmanship. But these solutions fail to address disparate outcomes in lower courts and replace one vague factor-based test with another.

1. Abandoning Mootness at the Supreme Court

As discussed above, one problem underlying the prudential basis of mootness is that other justiciability doctrines are far more likely to save judicial resources.²⁵⁴ Chief Justice William Rehnquist’s solution was that the Supreme Court should abandon mootness.²⁵⁵ In his view, once a case has advanced to the Supreme Court, any possible gains of judicial resources are lost.²⁵⁶

This view fails to capture the potential judicial resources lost with mootness dismissals at lower courts. Consider a habeas corpus case at a federal appellate court. This case could have traversed state proceedings, the U.S. Supreme Court, state post-conviction review, the U.S. Supreme Court again, and a federal habeas corpus district court. Lower courts also face these judicial economy concerns.

Further, vague standards in threshold decisions are least relevant at the Supreme Court. The Supreme Court already has a great deal of discretion over which cases it hears through grants of certiorari. The specter of courts dodging certain cases through threshold determinations concerns lower courts because mandatory jurisdiction is more common.

2. Factor-Based Analyses of Mootness

Another problem of mootness is that litigants and the public are often deprived of precedent. Don Kates and William Barker suggest that judges should ask whether the resources required to decide an otherwise moot case are outweighed by prudential concerns.²⁵⁷ Kates and Barker would have judges look at the (1) probability of recurrence, (2) need for judicial review of controversies otherwise evasive of review, and (3) social costs of continued uncertainty in the law.²⁵⁸ They also suggest that the substantive area of law should play a role, with cases in certain areas of law being more easily mooted than others.²⁵⁹

The first two factors are largely incorporated into the current mootness doctrine, and they fail to provide clear guidelines for judges. The probability of recurrence factor asks judges to predict the future activity of others. Judges, however, often disagree when assessing these probabilities.²⁶⁰ As examples of cases where mootness might impose high social costs, Kates and Barker provide expressive conduct regulations,²⁶¹ habeas corpus cases,²⁶² and welfare proceedings.²⁶³ It is unclear why expressive claims are more important than any other moot cases. Which social costs are sufficiently weighty depends on the judge’s political or philosophical preferences. Such decisions are akin to judges picking out their friends at a cocktail party.²⁶⁴ Judges should not be the only ones to decide which social issues deserve immediate adjudication.

3. “Real Effects” Model of Mootness

One way to resolve gamesmanship is to simply ask whether resolution of the case will have some effect in the real world.²⁶⁵ Existing mootness exceptions already capture much of this understanding. For example, the “wrongs capable of repetition” exception stems from a view that others are “likely to be hurt in the future without a federal court ruling.”²⁶⁶ For voluntary cessation, cases are not moot because a favorable decision “will have the effect of preventing the defendant from reinstituting the challenged practice.”²⁶⁷ This model simplifies these exceptions by having judges decide cases on the merits when a decision could “have some effect—altering someone’s behavior, changing somebody’s rights or duties.”²⁶⁸

Defining this “real effect” is still vague. Under a broad view, the outcome of any lawsuit will change one’s rights or duties, as an unfavorable judgment will constrain the defendant. Even if a judge merely reaffirms a preexisting obligation, this could be construed as imposing a greater duty by making that obligation clearer. A narrower view could require a “tangible” change, such as exchanging goods or ceasing an activity one is performing. This view is complicated by the role of nominal damages after Uzuegbunam.

One option is for courts to follow the strategy used in defining injury-in-fact in prudential standing decisions: allowing for common law injuries and statutorily defined injuries to suffice. Ceding this decision to the legislature may reduce the specter of disparate judicial outcomes. Prudential standing doctrine suggests this may not be easy. One issue in standing doctrine is determining how clear a statute must be to define an injury or “real effect.” Given the lack of clarity present in prudential standing decisions, this change is unlikely to substantially remedy the disparate effects of the current model of unilateral mootness.

B. Expanding the Mootness Exceptions Is Unwise

Other solutions aim to clarify existing mootness exceptions. These could mitigate the disparate outcomes among circuits at the cost of the Supreme Court making these judgments. The benefit is that individual litigants would be treated alike. The cost is that classes of litigants may be treated differently than other, similarly situated groups.

1. Expanding Voluntary Cessation

One way to address government gamesmanship is to hold government actors to the same standard as private defendants in voluntary cessation cases. While the Supreme Court and some circuits have applied the same burden for all defendants,²⁶⁹ other circuits have applied a lower burden for government actors,²⁷⁰ assuming that these actors are more trustworthy than private defendants.²⁷¹ Proponents argue that government defendants are often more incentivized to engage in gamesmanship as they are repeat litigants that want to avoid adverse precedent.²⁷² One approach is to require both governments and private defendants to show that it is “absolutely clear” that the challenged conduct will not recur.²⁷³

Describing government action in voluntary cessation terms is strange. When describing an individual or a corporate defendant, the concept of voluntary cessation makes sense. An individual can swear under oath that they will not engage in a particular action again. Governments, however, are made up of groups of people. A government actor or legislature can agree not to undertake a certain action, but they cannot bind future legislatures. Police departments and government agencies settle cases all the time. But with voluntary cessation, no settlement is made, and a court never determines that the defendant did anything wrong. Even if a government actor could bind their successors, this action creates serious democratic concerns. Federal courts should not be able to bind governments for behaviors that have not yet been held to be unconstitutional. In short, government actors are constitutionally prohibited from committing to nonrepetition. No government defendant could ever satisfy the “absolutely clear” standard. This would permit plaintiffs to continue any lawsuit, even when the government actor stopped the challenged activity. Admittedly, this solves the problem of vague standards governing voluntary cessation. But in practice, this would hold governments to a more stringent standard than corporate defendants.

2. Expanding Collateral Consequences: Expressive Remedies

Other solutions addressing defendant gamesmanship expand the category of collateral consequences. These solutions allow plaintiffs to evade mootness by claiming that nominal damages or admissions of liability are necessary to remedy harms rooted in values such as dignity, respect, and vindication.²⁷⁴ The most comprehensive overview of an approach to expanding collateral consequences is Professor Rachel Bayefsky’s recent article on expressive remedies.²⁷⁵ Bayefsky characterizes dignitary harms as those that exclude or treat others as lesser.²⁷⁶ Practically, this could allow plaintiffs to recover attorneys’ fees for an otherwise moot case, so long as the remedy on the merits is an expressive one.²⁷⁷ These approaches are likely to exacerbate the problem of docket control, and they fail to clarify vague standards.

An expressive approach to justiciability would exacerbate the problem of docket overload. Allowing expressive or dignity harms as a redressable injury-in-fact would seem to implicate standing as well as mootness. Aspects of dignity and respect are an anomaly outside the discrete common law torts of defamation and battery.²⁷⁸ Without a limiting factor, anybody who perceives a wrong and demands an apology could get their day in court. A large number of damages express more respect for the plaintiff.²⁷⁹ This suggests that even favorable state court judgments could be subject to collateral attacks if the plaintiff feels undercompensated. Permitting expressive harms as injuries-in-fact is akin to an individual challenging a “disagreeable war.”²⁸⁰ Bayefsky curbs this docket overload problem by limiting dignity torts to a subset of dignity harms.²⁸¹ Reducing docket overload, however, exacerbates the vagueness problem.

Expressive approaches increase vagueness. Dignity and respect hold many contradictory definitions.²⁸² Bayefsky offers several factors to identify harms to dignity, including intentionality, relation of violation to disrespectful treatment, and identity of the parties.²⁸³ She instructs judges to examine the “costs and benefits of granting a particular remedy.”²⁸⁴ These standards are vaguer than those underlying the current mootness exceptions. To Bayefsky, dignity resonates in progressive “movements challenging racial injustice, unequal treatment of women, and stigmatization of same-sex relationships.”²⁸⁵ Other judges appeal to dignity when striking down pro-choice legislation as unconstitutional.²⁸⁶ Rather than dignity serving as an egalitarian tool,²⁸⁷ it may risk making more concrete and visible the inherent distinctions that exist in our society.²⁸⁸

C. Eliminating Unilateral Mootness Is the Best Solution

1. Mooting Mootness Is Good Policy

Eliminating unilateral mootness reduces vagueness, gamesmanship, and inefficiency. This change also simplifies the doctrine. Barring suspected collusion, the intent of the litigants would be irrelevant to the analysis. Judges would no longer need to assess whether an issue is “capable of repetition, but evading review.”²⁸⁹ Similarly, they would not need to assess the likelihood of a defendant returning to the challenged action. Special carve-outs for class actions would be unnecessary, as litigants would no longer require a continued personal stake in the litigation.

This also has several benefits over the alternatives. For one, it is easier to apply. Rather than assessing an array of factors, all cases of unilateral mootness will move forward.²⁹⁰ This approach is neutral. It does not treat any area of law or injury differently. Nor does it require line drawing, which could treat similarly situated classes of litigants differently.²⁹¹

This solution is not perfect. It would permit some cases of “plaintiff madness” (cases in which a defendant no longer wishes to litigate) to advance. For these cases, the defendant may stipulate to all the facts that the plaintiff requests to bring a quick end to the lawsuit. This would end the case without setting collusive precedent.

2. Mooting Mootness Does Not Impact Concerns over Adversity

As a point of clarification, this Note’s solution should be understood only as eliminating unilateral mootness when other grounds for mootness are not present. For instance, when a case implicates unilateral mootness and collusion, the case should still be dismissed on collusion grounds. These cases often arise when the parties’ motives or identities change. One example of this would be Biden v. Sierra Club (originally Trump v. Sierra Club).²⁹²

In Biden v. Sierra Club, an environmental group challenged the Department of Defense’s transfer of funds to build a wall on the U.S.-Mexico border.²⁹³ After the Ninth Circuit enjoined the Trump Administration from redirecting the funds, President Trump filed for writ of certiorari.²⁹⁴ One month later, President Biden, on the day of his inauguration, issued a proclamation cutting all funding to the border wall.²⁹⁵ Biden then moved to remove this case from the Court’s February argument calendar and hold it in abeyance, which the Court granted.²⁹⁶ The Court then granted his motion to vacate the Ninth Circuit’s decision.²⁹⁷ Had the Court denied this motion, President Biden would be in the strange position of defending a policy he does not support. Courts have several ways to reach the same result even without unilateral mootness.

To begin, the Court may dismiss the case if it doubts the government’s ability to adequately litigate the case. The Court has a broad power to vacate any judgment under certain circumstances.²⁹⁸ These circumstances include new federal statutes, changed factual circumstances, and confessions of error taken by the solicitor general or state attorneys general.²⁹⁹ This proposal would not deprive the Court of these tools. Lower courts also have a broad power to dismiss cases sua sponte on justiciability grounds.³⁰⁰ For lower courts, dismissal based on confessions of error should be limited to cases in which there is a serious risk of collusion, including situations in which the identity or motives of one party has changed in some significant way. Such cases may require vacatur—though collusion, not unilateral mootness, would be the grounds for vacating the decision below.

Moreover, the Court could halt proceedings until the necessary adversity returns. If litigants are at the trial stage, courts should stay the case and hold it in abeyance until such adversity is restored. Federal courts employ this procedure in habeas corpus cases when a petitioner has failed to exhaust all available state remedies.³⁰¹ This approach also mitigates the risks that plaintiffs cannot recover based on the statute of limitations or new standing issues. If the case is at the appellate stage, the court could dismiss the appeal and let the lower decision stand without disrupting or vacating the case.³⁰² If a future administration chooses to appeal the judgment, then they may do so. But this should not be objectionable to either party. The plaintiffs maintain their favorable judgment, one with which the defendants ostensibly agree. If the defendants disagree with this holding, then they are adverse and should fight it in court.

Proposed alternatives to scrapping unilateral mootness fail to capture the key problem of vague standards leading to disparate outcomes. These proposals only address a subset of these problems or replace vague standards with their own vague or policy-oriented alternatives. Eliminating unilateral mootness, on the other hand, clarifies standards in a neutral manner, which solves the disparate outcomes and gamesmanship present in current doctrine. Existing mechanisms would mitigate the risks of cases with inadequate adversity.

Conclusion

The judicially created concept of unilateral mootness has little basis in its alleged constitutional or prudential rationales. Instead, the doctrine leads to disparate outcomes for litigants, enables defendant gamesmanship, and incurs costs to the judicial system. Eliminating unilateral mootness addresses all these problems. Plaintiffs could fully litigate their cases, vindicate their rights, and memorialize their victories through precedent. Future litigants, judges, and the public would all benefit from the reasoning of these decisions. Mitigating these disparate outcomes would also improve public perceptions of the court. Deciding these cases would save judicial resources by preventing these similar cases from being fully relitigated each time the defendant engages in the challenged behavior. Lastly, this solution targets the worst forms of gamesmanship while leaving most justiciability doctrines in place. Unilateral mootness cannot be fixed. Scrapping it is the best option.

* J.D. Candidate, May 2023, University of Michigan Law School. Thank you to Professor Evan Caminker for his insightful and comprehensive feedback throughout the writing process and to Professor Daniel Deacon for his reactions to an early draft of this Note. I am immensely grateful for the work done by the Michigan Law Review editors, particularly Will Hanna, Noah Harrison, Hank Minor, Alex Noronha, Lara Ryan, and Annie Schuver. Finally, thank you to my wife Jennifer for her endless encouragement throughout the writing process.