Article III, Section 2, Clause 1 — Mootness

ArtIII.S2.C1.8.1 Overview of Mootness Doctrine

In addition to the other justiciability doctrines discussed above, the Supreme Court’s doctrine on mootness imposes another limitation on justiciability derived from Article III’s case-or-controversy requirement¹ on the federal courts’ jurisdiction to resolve disputes.² “It has long been settled that a federal court has no authority ‘to give opinions upon moot questions;’”³ that is, “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”⁴ “[A]n actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.”⁵ Thus, “if an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit[ ]’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.”⁶ The Supreme Court has justified the mootness doctrine on the ground that it “ensures that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties involved.”⁷

According to the Supreme Court, “[a] case that becomes moot at any point during the proceedings is “no longer a “Case” or “Controversy” for purposes of Article III,” and is outside the jurisdiction of the federal courts.”⁸ Because mootness is a jurisdictional limitation, a federal court can—and indeed must—dismiss a moot case even if none of the parties ask the court to do so.⁹ A question about mootness may, in other words, arise at any time during the lifespan of a case, even on appeal.¹⁰ In this respect, mootness “bears close affinity to” the other justiciability doctrines derived from Article III of the Constitution,¹¹ including standing¹² and the prohibition against advisory opinions.¹³ To the extent that the mootness doctrine regulates “the appropriate timing of judicial intervention,”¹⁴ mootness serves as the converse of the ripeness doctrine,¹⁵ which restrains the Judiciary from adjudicating a case before it develops into a live dispute.

The Supreme Court has steadily developed the substantive and procedural aspects of the mootness doctrine over the course of nearly a century and a half. The Court has ultimately settled on the following formulation of the doctrine: “If an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit[ ]’ at any point during litigation,” then—subject to certain exceptions analyzed below—“the action can no longer proceed and must be dismissed as moot.”¹⁶

ArtIII.S2.C1.8.2 Early Mootness Doctrine

The Supreme Court’s 1895 decision in Mills v. Green¹ was the first Supreme Court opinion that directly addressed the mootness doctrine.² Mills involved the election of delegates to a convention to revise South Carolina’s constitution.³ A South Carolina citizen filed suit, claiming that the state’s voter registration statutes unconstitutionally “abridg[ed], imped[ed], and destroy[ed] the suffrage of citizens of the state and of the United States.”⁴ While the case was pending on appeal, the date of the delegate election for the convention passed, the delegates were selected, and the constitutional convention had assembled.⁵ The Supreme Court therefore concluded that there was no longer any “actual controversy involving real and substantial rights between the parties” and dismissed the appeal accordingly.⁶ The Court explained that the Federal Judiciary’s “duty” under the Constitution was only “to decide actual controversies,” not “to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.”⁷ Applying that principle to the facts of the case before it, the Court emphasized that “the whole object of the [plaintiff ’s lawsuit] was to secure a right to vote at the election.”⁸ Because the Court could not retroactively make the plaintiff eligible to vote in an election that had already occurred, the Court concluded it was unable to grant the plaintiff the relief that he sought.⁹ Mills therefore firmly established the legal principle that otherwise justiciable cases may become nonjusticiable with the passage of time.¹⁰

Notably, the Mills Court did not expressly base its holding on Article III’s “case or controversy” requirement; nothing in Mills squarely suggested that the mootness doctrine was a constitutionally mandated limitation on the federal courts’ jurisdiction, as opposed to a self-imposed prudential restriction on the justiciability of disputes.¹¹ Thus, the Court applied the mootness doctrine articulated in Mills on various occasions throughout the early- to mid-twentieth century without explicitly suggesting that federal courts lacked the constitutional authority to adjudicate moot cases.¹² It was not until the Court’s 1964 decision in Liner v. Jafco, Inc.¹³ that the Court first explicitly acknowledged mootness’s constitutional dimension.¹⁴ The respondents in Liner had successfully convinced a state court to enter an injunction¹⁵ to prohibit picketing at a construction site.¹⁶ The petitioners thereafter appealed to the U.S. Supreme Court, contending that the state court lacked the authority to issue the injunction.¹⁷ While the case was pending, however, “construction at the site had been completed.”¹⁸ The Court therefore had to determine whether the completion of the construction project rendered the case moot.¹⁹

The Court answered that question in the negative.²⁰ The Court observed that the respondents had “filed a bond providing that, if the injunction action failed,” the respondents would have to pay the petitioners “all such costs, damages, interest, and other sums as may be awarded and recovered against the [respondents] in any suit or suits which may be hereafter bro[u]ght for wrongfully suing out said Injunction.”²¹ Because the petitioners could therefore potentially recover damages if “the injunction was wrongfully sued out,”²² the Court determined that Liner was “not a case where th[e] Court’s decision on the merits” would not “affect the rights of the litigants.”²³ The Court accordingly concluded that the case was not moot because the petitioners retained “a substantial stake in the judgment” that existed “apart from and [wa]s unaffected by the completion of construction.”²⁴

In reaching this holding, the Liner Court expressly stated that the mootness doctrine “derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.”²⁵ The Court’s decision to characterize mootness as a constitutional doctrine had significant practical and doctrinal implications. As the Court would explain in other opinions following Liner, a federal court lacks jurisdiction to adjudicate a moot case even if all parties consent because moot cases do not constitute justiciable “cases or controversies” within the meaning of Article III.²⁶ Thus, the Constitution requires the federal courts to raise and decide issues of mootness even if the parties have not raised the issue themselves.²⁷ Likewise, because mootness is a constitutional limitation on the federal courts’ jurisdiction, a court must also “address the question of mootness before reaching the merits” of the parties’ claims.²⁸ Moreover, the constitutional status of the mootness doctrine entails that Congress may not statutorily authorize federal courts to adjudicate moot cases.²⁹

ArtIII.S2.C1.8.3 Modern Mootness Doctrine

The Supreme Court has decided mootness issues in a wide array of contexts since the Supreme Court decided Liner in 1964.¹ As a result, the Court has developed a robust body of precedent governing when a case should (or should not) be dismissed as moot, as well as what procedures a federal court should follow after a case becomes moot.

ArtIII.S2.C1.8.4 General Criteria of Mootness

Under current law, “a case is moot when the issues presented are no longer ‘live’ or the parties lack a cognizable interest in the outcome.”¹ “[A]n actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.”² Thus, “[i]f an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit[ ]’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.”³ “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.”⁴ When (1) “it can be said with assurance that there is no reasonable expectation that the alleged violation will recur;” and (2) “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation,” then “the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.”⁵

Significantly, however, a case does not necessarily become moot simply because intervening events make it impossible for a federal court to issue the exact form of relief that the plaintiff requests.⁶ As long as the court retains the ability to “fashion some form of meaningful relief, “then that” is sufficient to prevent th[e] case from being moot.”⁷ To illustrate, “[i]f there is any chance of money changing hands” as a result of the lawsuit, then the “suit remains live.”⁸ Similarly, even if it is uncertain that the relief granted by the court will ultimately have any meaningful practical impact on the plaintiff, that does not itself render the case moot.⁹

Intervening circumstances that may render a case moot can result either from actions attributable to the litigants or from outside forces. For example, in the City News & Novelty, Inc. v. City of Waukesha case discussed in greater detail below, the Court ruled that an adult business’s challenge to a municipality’s decision to deny the business’s license became moot after the business chose to cease operations while the case was pending on appeal.¹⁰ A lawsuit predicated upon a federal statute may also become moot if Congress amends the statute while the suit remains pending.¹¹ A case may also become moot merely through the passage of time; for instance, the Court ruled in Camreta v. Greene that a child’s constitutional challenge to an elementary school’s methods of interviewing its students became moot after “the child [grew] up and moved across the country” and thus would “never again be subject to the . . . in-school interviewing practices whose constitutionality [wa]s at issue.”¹²

The Court’s 1974 opinion in DeFunis v. Odegaard illustrates how the aforementioned legal principles apply in practice.¹³ The petitioner in DeFunis applied for admission at a public law school.¹⁴ After the school rejected his application, the petitioner filed suit, “contending that the procedures and criteria employed by the Law School Admissions Committee invidiously discriminated against him on account of his race.”¹⁵ The trial court agreed and ordered the law school to admit the petitioner.¹⁶ The petitioner accordingly started taking classes at the law school while the case was on appeal.¹⁷ By the time the case reached the Supreme Court, the petitioner had almost completed his law degree,¹⁸ such that the petitioner stood to “receive his diploma regardless of any decision th[e] Court might reach on the merits of [h]is case.”¹⁹ Because the petitioner would “complete his law school studies at the end of the term . . . regardless of any decision th[e] Court might reach on the merits,” the Court concluded that the case was moot.²⁰

Because federal courts lack jurisdiction to adjudicate moot cases, a federal court can—and indeed must—dismiss a moot case even if none of the parties ask the court to do so.²¹ Moreover, because mootness deprives the courts of jurisdiction to hear a case, the Supreme Court has stated that litigants have “a ‘continuing duty to inform the Court’” of intervening events that could potentially render a case moot.²² “The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.”²³ As a result, a party may raise a mootness challenge at any time during the litigation, including for the first time on appeal.²⁴ “[A]n appeal should therefore be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant ‘any effectual relief whatever’ in favor of the appellant.”²⁵ “If a party to an appeal suggests that the controversy has, since the rendering of judgment below, become moot, that party bears the burden of coming forward with subsequent events that have produced that alleged result.”²⁶

The Supreme Court has developed several doctrines that govern how courts should dispose of cases that become moot during the pendency of an appeal.²⁷ When reviewing a lower court’s judgment, an appellate court has several potential options for resolving the case: it may affirm—that is, approve—the judgment;²⁸ it may reverse—that is, overturn—the judgment;²⁹ it may vacate the judgment—that is, nullify the judgment³⁰ and thereby “strip[ ] the decision below of its binding effect;”³¹ or it may remand the case to the lower court for further proceedings.³² As the Court explained in its 1950 opinion in United States v. Munsingwear, Inc., “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot” on appeal or before the Court has issued its “decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.”³³ Disposing of a moot case in this manner thereby “clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance.”³⁴ Put another way, the Munsingwear procedure for disposing of cases that become moot on appeal “prevent[s] a judgment, unreviewable because of mootness, from spawning any legal consequences,” and thereby ensures that the federal appellate courts, rather than individual litigants, have the last word on the answers to legal questions.³⁵

The Supreme Court has noted, however, “the decision whether to vacate” a moot case pursuant to Munsingwear “turns on ‘the conditions and circumstances of the particular case.’”³⁶ To that end, the Supreme Court has crafted several exceptions to the Munsingwear rule.³⁷ For one, the Supreme Court has specified that “vacatur is in order” under Munsingwear only when mootness occurs through “happenstance”—that is, “circumstances not attributable to the parties”—or “the ‘unilateral action of the party who prevailed in the lower court.’”³⁸ Thus, if a case becomes moot as a result of the parties’ mutual agreement to settle the case, the Court has held that federal courts should generally not vacate the judgment.³⁹ The Court has justified this exception by explaining that “where mootness results from settlement . . . the losing party has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the . . . remedy of vacatur.”⁴⁰ Such cases are therefore “not unreviewable, but simply unreviewed” as a result of the losing party’s “own choice.”⁴¹ Likewise, the Court has ruled that it is inappropriate to “clear[ ] the path for future relitigation of the issues between the parties”⁴² when the plaintiff renders the case moot by voluntarily agreeing to permanently withdraw its claims against the defendant.⁴³ In such instances, rather than wiping the slate clean in the manner contemplated by Munsingwear, the Court has ordered that the case be dismissed with prejudice to refiling so that “it cannot be resumed in this or any subsequent action.”⁴⁴ Dismissing the case with prejudice thereby “prevent[s] the regeneration of the controversy” if the plaintiff later changes its mind and attempts to relitigate the dismissed claims in federal court.⁴⁵

Nor does the Court follow its usual practice of vacating the judgment with directions to dismiss when a case has become moot due to an intervening change in the governing law.⁴⁶ Instead, the Court ordinarily “remand[s] for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully” to respond to the intervening change in law.⁴⁷ For instance, in Diffenderfer v. Central Baptist Church of Miami, Florida, Inc., the plaintiff challenged a Florida statute as unconstitutional.⁴⁸ While the litigation was pending, however, the Florida legislature repealed the challenged statute and enacted a new statute in its place.⁴⁹ “[R]ather than remanding the case to the District Court for dismissal” in the manner contemplated by Munsingwear, the Supreme Court “remand[ed] the case to the District Court with leave to the appellants to amend their pleadings.”⁵⁰ Resolving the case in this way thereby afforded the appellants an opportunity “to demonstrate that the repealed statute retain[ed] some continuing force or to attack the newly enacted legislation.”⁵¹

Finally, “[t]he Court’s treatment of cases that become moot on review from the lower federal courts” differs from its treatment of moot cases arising from state courts.⁵² The Court’s “regular practice in the latter situation has been to dismiss the case and leave the judgment of the state court undisturbed,” rather than to vacate the judgment in the manner contemplated by Munsingwear.⁵³ According to the Court, allowing state court judgments in moot cases to stand “evinces a proper recognition that in the absence of any live case or controversy, [the Court] lack[s] jurisdiction and thus also the power to disturb the state court’s judgment.”⁵⁴

ArtIII.S2.C1.8.5 Exceptions to Mootness Generally

Significantly, the Court has recognized several exceptions to the general mootness principles discussed above. These exceptions are known as the “voluntary cessation” doctrine¹ and the “capable of repetition, yet evading review” exception.² The Court has also developed special mootness principles that govern criminal cases³ and class action cases.⁴

ArtIII.S2.C1.8.6 Voluntary Cessation Doctrine

First, the Supreme Court has held that a party’s voluntary cessation of an unlawful practice will usually not moot its opponent’s challenge to that practice.¹ Thus, “a defendant cannot automatically moot a case by simply ending its unlawful conduct once sued.”² This exception to the mootness doctrine exists because if a litigant could defeat a lawsuit simply by temporarily ceasing its unlawful activities, there would be nothing to stop that litigant from engaging in that unlawful behavior again after the court dismissed the case³; the litigant would effectively “be free to return to [its] old ways.”⁴

The 1982 case of City of Mesquite v. Aladdin’s Castle, Inc. illustrates how this “voluntary cessation” doctrine applies in practice.⁵ The plaintiff in City of Mesquite challenged the constitutionality of a municipal ordinance.⁶ While the case was pending, however, the city repealed the offending provisions of the ordinance.⁷ The Court, explaining that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,” concluded that the city’s revision of the ordinance did not render the plaintiff ’s challenge moot.⁸ Because “the city’s repeal of the objectionable language” in the ordinance “would not preclude it from reenacting precisely the same provision” if the case were dismissed on mootness grounds, the Court concluded that it needed to “confront the merits of the” plaintiff ’s constitutional challenge.⁹

The DeFunis v. Odegaard case discussed above, by contrast, exemplifies when the voluntary cessation doctrine will not save a case from dismissal.¹⁰ To reiterate, the petitioner in DeFunis claimed that certain law school admissions practices and criteria discriminated against him on the basis of race.¹¹ While the case was pending, however, the petitioner began taking classes at the law school, and had almost completed his law degree by the time the case reached the Supreme Court.¹² The Court rejected the petitioner’s argument that the voluntary cessation doctrine rendered the case justiciable because the case’s mootness had “partially stem[med] from a policy decision on the part of the respondent Law School authorities” to allow the petitioner to complete his law school studies and receive his diploma.¹³ The Court emphasized that the respondents had not voluntarily ceased the allegedly discriminatory admissions practices that the petitioner challenged as unconstitutional; instead, the case became moot because the petitioner was just a few credits shy of completing his degree.¹⁴ In other words, the case was moot not because the school stopped engaging in allegedly unlawful activity, but rather because the petitioner would “receive his diploma regardless of any decision th[e] Court might reach on the merits of th[e] case.”¹⁵

The Court has clarified several other aspects of the voluntary cessation doctrine. For one, if it is “absolutely clear” that the allegedly wrongful behavior will not recur after the court dismisses the case, then a case can become moot notwithstanding a party’s voluntary cessation of that unlawful behavior.¹⁶ “The ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.”¹⁷ To illustrate, in Preiser v. Newkirk, a prisoner claimed that prison officials had unlawfully transferred him from a medium security institution to a more restrictive maximum security institution, and asked the court to order his return to the medium security prison.¹⁸ While the case was pending, however, officials transferred the prisoner back to the medium security institution, and then subsequently transferred him to an even less restrictive minimum security institution.¹⁹ According to the Court, these subsequent developments made it “clear that correction authorities harbor[ed] no animosity toward” the plaintiff, such that there was “no reasonable expectation that the wrong” challenged by the prisoner would “be repeated.’”²⁰ The Court therefore deemed the case nonjusticiable even though the prison officials themselves had rendered the case moot by transferring the prisoner to a less restrictive institution.²¹

Additionally, the voluntary cessation doctrine typically applies only when a party to the case voluntarily discontinues an allegedly unlawful action. If, instead, a case becomes moot because “of the voluntary acts of a third party non-defendant,” the voluntary cessation doctrine will usually not save that case from dismissal.²² For instance, in Iron Arrow Honor Society v. Heckler, the Secretary of the Department of Health, Education, and Welfare (Secretary) promulgated a regulation barring recipients of federal funding from “providing significant assistance to any . . . organization . . . which discriminates on the basis of sex.”²³ The petitioner, an all-male honorary organization at a public university, commenced a lawsuit seeking to prevent the Secretary from interpreting that regulation in a manner that would require the university to ban the organization from conducting activities on campus so long as it continued to exclude women.²⁴ While the lawsuit was pending, however, the university determined that no matter whether the Secretary’s regulation required the university to ban the organization, the university’s own non-discrimination code independently barred the organization from operating on campus until it discontinued its male-only membership policy.²⁵ Because no judicial ruling with respect to the Secretary’s interpretation of the regulation would have any effect on the university’s independent decision to ban the organization pursuant to its own non-discrimination policy, the Court concluded that “the dispute as to how the [r]egulation should be interpreted” was “classically ‘moot.’”²⁶ The Court concluded that the voluntary cessation doctrine did not save the case from dismissal, as it was “the voluntary acts of a third party non-defendant”—namely, the university—that rendered the case moot, rather than the voluntary acts of the Secretary herself.²⁷

Similarly, the voluntary cessation doctrine will not save a case from dismissal when it is the losing party, rather than the prevailing party, whose voluntary actions render the case moot during the pendency of an appeal.²⁸ Thus, in City News & Novelty, Inc. v. City of Waukesha, a retailer of sexually explicit materials challenged a municipality’s decision to deny its adult business license.²⁹ After the lower courts ruled against the retailer, the retailer asked the Supreme Court to review the judgment in the municipality’s favor.³⁰ While the appeal was pending, however, the retailer opted to close its business.³¹ The Court determined that the retailer’s decision to cease operations had rendered the case moot because the retailer no longer had any cognizable interest in the outcome of the case.³² Even though the circumstance rendering the case moot was the retailer’s voluntary decision to close its business, the Court nonetheless concluded that the voluntary cessation doctrine did not render the case justiciable.³³ The Court emphasized that because the lower courts had ruled against the retailer, the retailer “left the fray as a loser, not a winner.”³⁴ The Court reasoned that the retailer’s voluntary cessation of its business therefore did “not keep [its opponent] under the weight of an adverse judgment” or “reward an arguable manipulation of [the Court’s] jurisdiction.”³⁵

ArtIII.S2.C1.8.7 Capable of Repetition, Yet Evading Review

The Supreme Court has generally declined to deem cases moot that present issues or disputes that are “capable of repetition, yet evading review.”¹ This exception to the mootness doctrine applies “only in exceptional situations”² in which (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.”³ According to the Court, if this exception to mootness did not exist, then certain types of time-sensitive controversies would become effectively unreviewable by the courts.⁴

The classic example of a dispute that is “capable of repetition, yet evading review” is a pregnant woman’s constitutional challenge to an abortion regulation.⁵ Once a woman gives birth, abortion is no longer an option for terminating that particular pregnancy. However, litigation of national political significance can rarely be fully resolved in a mere nine months; “the normal 266-day human gestation period is so short that [a] pregnancy will come to term before” the parties and the court could realistically litigate a constitutional challenge to an abortion statute to its conclusion.⁶ Thus, if a challenge to an abortion regulation became moot as soon as the challenger gave birth, “pregnancy litigation seldom w[ould] survive much beyond the trial stage, and appellate review w[ould] be effectively denied.”⁷ Because the Supreme Court has decided that “[o]ur law should not be that rigid,” the Court ruled in its 1973 opinion in Roe v. Wade that “[p]regnancy provides a classic justification for a conclusion of nonmootness.”⁸ The Roe Court reasoned that, because “[p]regnancy often comes more than once to the same woman, and . . . if man is to survive, it will always be with us,” challenges to the constitutionality of abortion statutes usually will not become moot at the conclusion of an individual challenger’s pregnancy.⁹

The Court has deemed certain controversies “capable of repetition, yet evading review” outside the abortion context as well.¹⁰ For example, in Federal Election Commission v. Wisconsin Right to Life, Inc., an advocacy organization claimed that restrictions on “electioneering communications” established by the Bipartisan Campaign Reform Act of 2002 unconstitutionally prohibited the organization from broadcasting certain political advertisements shortly before the 2004 election.¹¹ Even though the case did not reach the Supreme Court until long after the 2004 election had passed, the Court nonetheless concluded that the case was not moot.¹² The Court reasoned that the organization “credibly claimed that it planned on running ‘materially similar’ future targeted broadcast ads” in advance of future elections,¹³ and the period between elections was too short to allow the organization sufficient time to fully litigate its constitutional challenges sufficiently in advance of the election date.¹⁴

By contrast, the Court determined that the constitutional challenge in the DeFunis case mentioned above was not “capable of repetition, yet evading review.”¹⁵ To reiterate, the petitioner in DeFunis claimed that certain law school admissions practices and criteria unconstitutionally discriminated against him on the basis of race.¹⁶ While the case was pending, however, the petitioner began taking classes at the law school, and was just about to receive his diploma.¹⁷ Unlike the challenger to the abortion statute in Roe, who could very well have become pregnant again in the future,¹⁸ the petitioner in DeFunis would “never again be required to run the gantlet of the Law School’s admissions process” once he received his juris doctorate.¹⁹ The DeFunis Court therefore concluded that the petitioner’s constitutional challenges were “not ‘capable of repetition’ so far as [the petitioner was] concerned.”²⁰ The Court further opined that challenges raised by other disappointed applicants would not evade future review either, as the Court had “no reason to suppose that a subsequent case attacking [the law school’s admission] procedures w[ould] not come with relative speed to th[e] Court.”²¹

ArtIII.S2.C1.8.8 Criminal Cases and Mootness

The Supreme Court has also articulated special mootness principles that apply in criminal cases.¹ Because criminal sentences are generally limited in duration, courts will sometimes be unable to rule on the merits of a criminal defendant’s appeal before that defendant’s sentence expires.² Thus, the Court has ruled that a criminal defendant who “wish[es] to continue his appeals after the expiration of his sentence must suffer some ‘continuing injury’ or ‘collateral consequence’ sufficient to satisfy Article III.”³ Put another way, if the defendant can point to some “disabilities or burdens (which) . . . flow from” his conviction even after his release from prison, then he retains “a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him” and therefore presents a justiciable controversy.⁴ If, by contrast, the defendant cannot make such a showing, then the expiration of the defendant’s criminal sentence will render the defendant’s appeal moot.⁵ Thus, in Carafas v. LaVallee, the petitioner faced lingering legal “disabilities or burdens” as a result of his conviction even though he had already “been unconditionally released from custody.”⁶ Specifically, the laws of the state in which the petitioner resided prohibited convicted felons from “engag[ing] in certain businesses,” “serv[ing] as an official of a labor union,” “vot[ing] in any election held in” his state of residence, and “serv[ing] as a juror.”⁷ The petitioner therefore retained “a substantial stake” in challenging the validity of his conviction so that he could engage in activities that his criminal record would otherwise prohibit.⁸ The Supreme Court thus determined that, “[o]n account of these ‘collateral consequences’” of his conviction, the petitioner’s case was “not moot.”⁹ “When the defendant challenges his underlying conviction,” the Supreme Court generally “presume[s] the existence of collateral consequences” sufficient to save the defendant’s appeal from dismissal on mootness grounds.¹⁰ The Court has justified this presumption on the ground that “most criminal convictions do in fact entail adverse collateral legal consequences.”¹¹ The Court has generally declined to presume, however, that collateral consequences will result from other types of criminal sanctions, such as a revocation of parole.¹²

ArtIII.S2.C1.8.9 Class Action Litigation and Mootness

The Supreme Court has also developed special mootness rules that apply in class action cases.¹ In a class action, the plaintiff² (known as the “class representative” or the “named plaintiff”) represents not only his own interests, but also the interests of other injured persons (the “class members”) who are similarly situated to the class representative but are not named as formal parties to the suit.³ Intervening events may sometimes render the controversy moot as to the named plaintiff but not as to the class members.⁴ For example, in the 1979 case of Bell v. Wolfish, several pretrial detainees initiated a class action lawsuit challenging the conditions of confinement at a custodial facility not only on their own behalf, but also on behalf of other detainees as well.⁵ However, the named plaintiffs were transferred or released from the facility while the case was pending, and therefore were no longer being subjected to the allegedly unlawful conditions of confinement by the time the Supreme Court took up the case.⁶ Although the named plaintiffs no longer had any personal stake in the outcome of the litigation, the class members who remain confined in that facility still potentially had live claims against the defendant.⁷ To address cases of this sort, the Court has ruled that a justiciable controversy may potentially exist “between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.”⁸ Put another way, “the termination of a class representative’s claim does not” necessarily “moot the claims of the unnamed members of the class.”⁹ The Court, applying that principle, has occasionally resisted efforts by defendants to moot a class action case by offering to pay the class representative’s entire individual claim over the class representative’s objection.¹⁰ According to the Court, allowing a class action case to become moot “simply because the defendant has sought to ‘buy off ’ the individual private claims of the named plaintiffs” would “frustrate the objectives of class actions” because it would “requir[e] multiple plaintiffs to bring separate actions, which effectively could be ‘picked off ’ by a defendant’s tender of judgment.”¹¹ The Court has explicitly declined to decide, however, whether other methods of mooting a class action could be permissible, such as by “deposit[ing] the full amount of the plaintiff ’s individual claim in an account payable to the plaintiff” and then successfully convincing the court to “enter[ ] judgment for the plaintiff in that amount.”¹² The lower courts have therefore “split on whether actual payment of full relief moots an individual’s claim.”¹³ “The Supreme Court has not yet resolved the split, and commentators disagree on how the Court will ultimately decide the unresolved . . . question.”¹⁴