Deconstitutionalizing justiciability: The example of mootness

Harvard Law Review

Volumn 105, Issue 3, 1992, Pages 605-669

  Lee, Evan Tsen ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 11944266258     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341536     Document Type: Article

References (390)

1. By collective rights, I mean rights that we normally think of as belonging more to identifiable groups than to individuals. See, e.g., Flast v. Cohen, 392 U.S. 83, 103 (1968) (recognizing the Establishment Clause right of taxpayers to challenge federal funding of instruction in religious schools); Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (establishing the Fourteenth Amendment right of public school children to attend nonsegregated schools). My proposal for a new mootness doctrine would apply to the vindication of individual rights as well as collective rights. However, I emphasize collective rights because deconstitutionalization would have a more profound effect in public interest litigation than in any other area.
2. I omit consideration of a fourth justiciability doctrine - the political question doctrine - because it raises different concerns. Cf. Gene R. Nichol, Jr., Abusing Standing: A Comment on Allen v. Wright, 133 U. PA. L. REV. 635, 644 (1985) ("At the jurisdictional stage, separation of powers interests have long been considered the bailiwick of the political question doctrine."). To borrow Professor Henry Monaghan's shorthand expressions for the justiciability doctrines, standing, mootness, and ripeness concern themselves with the "who" and "when" of adjudication in federal court, see Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363, 1364 (1973); the political question doctrine concerns itself with "what" is being adjudicated, see, e.g., Goldwater v. Carter, 444 U.S. 996, 1002-06 (1979) (plurality opinion) (holding that a challenge to presidential termination of a defense treaty was a nonjusticiable political question).
3. I omit consideration of a fourth justiciability doctrine - the political question doctrine - because it raises different concerns. Cf. Gene R. Nichol, Jr., Abusing Standing: A Comment on Allen v. Wright, 133 U. PA. L. REV. 635, 644 (1985) ("At the jurisdictional stage, separation of powers interests have long been considered the bailiwick of the political question doctrine."). To borrow Professor Henry Monaghan's shorthand expressions for the justiciability doctrines, standing, mootness, and ripeness concern themselves with the "who" and "when" of adjudication in federal court, see Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363, 1364 (1973); the political question doctrine concerns itself with "what" is being adjudicated, see, e.g., Goldwater v. Carter, 444 U.S. 996, 1002-06 (1979) (plurality opinion) (holding that a challenge to presidential termination of a defense treaty was a nonjusticiable political question).
4. See DAVID P. CURRIE, FEDERAL COURTS: CASES AND MATERIALS 61 (4th ed. 1900) (explaining that standing is concerned with "who is a proper party to litigate" and that ripeness is concerned with "when a proper party may litigate" (emphasis in original)).
5. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 2.4.1, at 98-99 (1989).
6. Historically, the broad perception among practitioners has been that state courts are less favorable forums than federal courts for the adjudication of public-law claims. This perception is so lasting that a veritable cottage industry of scholars has emerged to challenge or defend it. Compare, e.g., Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105, 1106 (1977) (arguing that federal courts are superior in adjudicating federal rights) and Martin H. Redisk Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 333-38 (1988) (arguing that life tenure and salary protections for federal judges make them more independent and therefore preferable for constitutional adjudication) with Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605, 637 (1981) (arguing that federal and state courts are essentially identical in their competence and enthusiasm for enforcement of constitutional rights) and Michael E. Solimine & James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 HASTINGS CONST. L.Q. 213, 214-15 (1983) (asserting that state courts are as likely as federal courts to vindicate constitutional rights). As more conservative appointments are made to the federal bench, federal courts may lose some of their perceived superiority in adjudicating public law claims. See Neuborne, supra, at 1121 n.59, 1125 n.74 (noting that a contraction of constitutional rights at the Supreme Court level would be reflected at the district court level). However, the federal courts will never lose their institutional advantages - life tenure and salary protection for judges. See Redish, supra, at 333-38.
7. Historically, the broad perception among practitioners has been that state courts are less favorable forums than federal courts for the adjudication of public-law claims. This perception is so lasting that a veritable cottage industry of scholars has emerged to challenge or defend it. Compare, e.g., Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105, 1106 (1977) (arguing that federal courts are superior in adjudicating federal rights) and Martin H. Redisk Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 333-38 (1988) (arguing that life tenure and salary protections for federal judges make them more independent and therefore preferable for constitutional adjudication) with Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605, 637 (1981) (arguing that federal and state courts are essentially identical in their competence and enthusiasm for enforcement of constitutional rights) and Michael E. Solimine & James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 HASTINGS CONST. L.Q. 213, 214-15 (1983) (asserting that state courts are as likely as federal courts to vindicate constitutional rights). As more conservative appointments are made to the federal bench, federal courts may lose some of their perceived superiority in adjudicating public law claims. See Neuborne, supra, at 1121 n.59, 1125 n.74 (noting that a contraction of constitutional rights at the Supreme Court level would be reflected at the district court level). However, the federal courts will never lose their institutional advantages - life tenure and salary protection for judges. See Redish, supra, at 333-38.
8. Historically, the broad perception among practitioners has been that state courts are less favorable forums than federal courts for the adjudication of public-law claims. This perception is so lasting that a veritable cottage industry of scholars has emerged to challenge or defend it. Compare, e.g., Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105, 1106 (1977) (arguing that federal courts are superior in adjudicating federal rights) and Martin H. Redisk Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 333-38 (1988) (arguing that life tenure and salary protections for federal judges make them more independent and therefore preferable for constitutional adjudication) with Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605, 637 (1981) (arguing that federal and state courts are essentially identical in their competence and enthusiasm for enforcement of constitutional rights) and Michael E. Solimine & James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 HASTINGS CONST. L.Q. 213, 214-15 (1983) (asserting that state courts are as likely as federal courts to vindicate constitutional rights). As more conservative appointments are made to the federal bench, federal courts may lose some of their perceived superiority in adjudicating public law claims. See Neuborne, supra, at 1121 n.59, 1125 n.74 (noting that a contraction of constitutional rights at the Supreme Court level would be reflected at the district court level). However, the federal courts will never lose their institutional advantages - life tenure and salary protection for judges. See Redish, supra, at 333-38.
9. Historically, the broad perception among practitioners has been that state courts are less favorable forums than federal courts for the adjudication of public-law claims. This perception is so lasting that a veritable cottage industry of scholars has emerged to challenge or defend it. Compare, e.g., Burt Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105, 1106 (1977) (arguing that federal courts are superior in adjudicating federal rights) and Martin H. Redisk Judicial Parity, Litigant Choice, and Democratic Theory: A Comment on Federal Jurisdiction and Constitutional Rights, 36 UCLA L. REV. 329, 333-38 (1988) (arguing that life tenure and salary protections for federal judges make them more independent and therefore preferable for constitutional adjudication) with Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605, 637 (1981) (arguing that federal and state courts are essentially identical in their competence and enthusiasm for enforcement of constitutional rights) and Michael E. Solimine & James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 HASTINGS CONST. L.Q. 213, 214-15 (1983) (asserting that state courts are as likely as federal courts to vindicate constitutional rights). As more conservative appointments are made to the federal bench, federal courts may lose some of their perceived superiority in adjudicating public law claims. See Neuborne, supra, at 1121 n.59, 1125 n.74 (noting that a contraction of constitutional rights at the Supreme Court level would be reflected at the district court level). However, the federal courts will never lose their institutional advantages - life tenure and salary protection for judges. See Redish, supra, at 333-38.
10. See Allen v. Wright, 468 U.S. 737, 751 (1984) ("The requirement of standing . . . has a core component derived directly from the Constitution."); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 81 (1978) (holding that the constitutional component of the ripeness requirement was satisfied); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam) (asserting that the "inability of federal [courts] 'to [adjudicate] moot cases derives from the requirement of Art. III'" (quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964))).
11. See Franks v. Bowman Transp. Co., 424 U.S. 747, 752-55 (1976).
12. My colleague Calvin Massey has recently likened Article III to a "hard outer shell" beyond which federal court jurisdiction may not be extended. Calvin R. Massey, Abstention and the Constitutional Limits of the Judicial Power of the United States, 1991 B.Y.U. L. REV. 811, 820.
13. 10 Compare, e.g., United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 683-90 (1973) (upholding law students' standing to challenge a railroad surcharge that might increase consumption of natural resources and ultimately spoil their recreational areas) with Sierra Club v. Morton, 405 U.S. 727, 741 (1972) (finding that a club had on standing to challenge the development of a ski resort in a national forest).
14. See Sapp v. Renfroe, 511 F.2d 172, 174-75 (5th Cir. 1975).
15. See Northern Va. Women's Medical Ctr. v. Balch, 617 F.2d 1045, 1049 (4th Cir. 1980).
16. See County of Los Angeles v. Davis, 440 U.S. 625, 627-30 (1979).
17. Owen M. Fiss. The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 9 (1979).
18. See infra Part IV.B.
19. See infra Part IV. C.
20. The argument that Congress should have primary control over federal jurisdiction has previously been made in several other doctrinal contexts. See Paul M. Bator, Congressional Power over the Jurisdiction of the Federal Courts, 27 VILL. L. REV. 1030, 1038-41 (1981) (contending that Congress has nearly plenary power to strip the lower courts of subject matter jurisdiction); Donald L. Doernberg, "You Can Lead a Horse to Water . . .": The Supreme Court's Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 CASE W. RES. L. REV. 999, 1020 (1989) (arguing that the Supreme Court has wrongly limited the reach of the general federal question statute); Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 114-15 (1984) (criticizing abstention doctrines as usurpation of the congressional prerogative to define federal jurisdiction); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1005-06 (1965) (arguing that Congress has plenary power to strip the Supreme Court of appellate jurisdiction). The congressional control argument has also been discussed in the justiciability context, albeit in somewhat piecemeal fashion. See David A. Logan, Standing to Sue: A Proposed Separation of Powers Analysis, 1984 WIS. L. REV. 37, 62-63 (arguing that the congressional control principle counsels recognition of standing to assert federal statutory causes of action); Monaghan, supra note 2, at 1376-79 (contending that federal courts should secure congressional authorization before entertaining "public actions"). For my response to Monaghan's argument, see note 59 below.
21. The argument that Congress should have primary control over federal jurisdiction has previously been made in several other doctrinal contexts. See Paul M. Bator, Congressional Power over the Jurisdiction of the Federal Courts, 27 VILL. L. REV. 1030, 1038-41 (1981) (contending that Congress has nearly plenary power to strip the lower courts of subject matter jurisdiction); Donald L. Doernberg, "You Can Lead a Horse to Water . . .": The Supreme Court's Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 CASE W. RES. L. REV. 999, 1020 (1989) (arguing that the Supreme Court has wrongly limited the reach of the general federal question statute); Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 114-15 (1984) (criticizing abstention doctrines as usurpation of the congressional prerogative to define federal jurisdiction); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1005-06 (1965) (arguing that Congress has plenary power to strip the Supreme Court of appellate jurisdiction). The congressional control argument has also been discussed in the justiciability context, albeit in somewhat piecemeal fashion. See David A. Logan, Standing to Sue: A Proposed Separation of Powers Analysis, 1984 WIS. L. REV. 37, 62-63 (arguing that the congressional control principle counsels recognition of standing to assert federal statutory causes of action); Monaghan, supra note 2, at 1376-79 (contending that federal courts should secure congressional authorization before entertaining "public actions"). For my response to Monaghan's argument, see note 59 below.
22. The argument that Congress should have primary control over federal jurisdiction has previously been made in several other doctrinal contexts. See Paul M. Bator, Congressional Power over the Jurisdiction of the Federal Courts, 27 VILL. L. REV. 1030, 1038-41 (1981) (contending that Congress has nearly plenary power to strip the lower courts of subject matter jurisdiction); Donald L. Doernberg, "You Can Lead a Horse to Water . . .": The Supreme Court's Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 CASE W. RES. L. REV. 999, 1020 (1989) (arguing that the Supreme Court has wrongly limited the reach of the general federal question statute); Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 114-15 (1984) (criticizing abstention doctrines as usurpation of the congressional prerogative to define federal jurisdiction); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1005-06 (1965) (arguing that Congress has plenary power to strip the Supreme Court of appellate jurisdiction). The congressional control argument has also been discussed in the justiciability context, albeit in somewhat piecemeal fashion. See David A. Logan, Standing to Sue: A Proposed Separation of Powers Analysis, 1984 WIS. L. REV. 37, 62-63 (arguing that the congressional control principle counsels recognition of standing to assert federal statutory causes of action); Monaghan, supra note 2, at 1376-79 (contending that federal courts should secure congressional authorization before entertaining "public actions"). For my response to Monaghan's argument, see note 59 below.
23. The argument that Congress should have primary control over federal jurisdiction has previously been made in several other doctrinal contexts. See Paul M. Bator, Congressional Power over the Jurisdiction of the Federal Courts, 27 VILL. L. REV. 1030, 1038-41 (1981) (contending that Congress has nearly plenary power to strip the lower courts of subject matter jurisdiction); Donald L. Doernberg, "You Can Lead a Horse to Water . . .": The Supreme Court's Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 CASE W. RES. L. REV. 999, 1020 (1989) (arguing that the Supreme Court has wrongly limited the reach of the general federal question statute); Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 114-15 (1984) (criticizing abstention doctrines as usurpation of the congressional prerogative to define federal jurisdiction); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1005-06 (1965) (arguing that Congress has plenary power to strip the Supreme Court of appellate jurisdiction). The congressional control argument has also been discussed in the justiciability context, albeit in somewhat piecemeal fashion. See David A. Logan, Standing to Sue: A Proposed Separation of Powers Analysis, 1984 WIS. L. REV. 37, 62-63 (arguing that the congressional control principle counsels recognition of standing to assert federal statutory causes of action); Monaghan, supra note 2, at 1376-79 (contending that federal courts should secure congressional authorization before entertaining "public actions"). For my response to Monaghan's argument, see note 59 below.
24. The argument that Congress should have primary control over federal jurisdiction has previously been made in several other doctrinal contexts. See Paul M. Bator, Congressional Power over the Jurisdiction of the Federal Courts, 27 VILL. L. REV. 1030, 1038-41 (1981) (contending that Congress has nearly plenary power to strip the lower courts of subject matter jurisdiction); Donald L. Doernberg, "You Can Lead a Horse to Water . . .": The Supreme Court's Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 CASE W. RES. L. REV. 999, 1020 (1989) (arguing that the Supreme Court has wrongly limited the reach of the general federal question statute); Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 114-15 (1984) (criticizing abstention doctrines as usurpation of the congressional prerogative to define federal jurisdiction); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1005-06 (1965) (arguing that Congress has plenary power to strip the Supreme Court of appellate jurisdiction). The congressional control argument has also been discussed in the justiciability context, albeit in somewhat piecemeal fashion. See David A. Logan, Standing to Sue: A Proposed Separation of Powers Analysis, 1984 WIS. L. REV. 37, 62-63 (arguing that the congressional control principle counsels recognition of standing to assert federal statutory causes of action); Monaghan, supra note 2, at 1376-79 (contending that federal courts should secure congressional authorization before entertaining "public actions"). For my response to Monaghan's argument, see note 59 below.
25. Although this essay is the first systematic attempt to show why the justiciability doctrines should not be seen as compelled by the "cases" and "controversies" language of Article III, see infra Part IV.A, others have foreshadowed the argument. See Fiss, supra note 14, at 36 (characterizing the use of the terms "cases" and "controversies" as "rather incidental"); Monaghan, supra note 2, at 1364 ("Article III's 'limitation' of the 'judicial power' to 'cases and controversies' has little necessary meaning; like most provisions of the Constitution, those words bear several interpretations.").
26. My argument that the advisory opinion doctrine should be viewed as having an Article III core with a large prudential curtilage, see infra Part IV. B, has not previously appeared in the literature. However, the best comprehensive treatment of the subject, see 13 CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3529.1, at 293-308 (2d ed. 1984), might be read as suggesting a similar approach.
27. I am not the first to differ with the due process rationale. See MARTIN H. REDISH, THE FEDERAL COURTS IN THE POLITICAL ORDER 101-02 (1991); Mark V. Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 HARV. L. REV. 1698, 1699 (1980).
28. I am not the first to differ with the due process rationale. See MARTIN H. REDISH, THE FEDERAL COURTS IN THE POLITICAL ORDER 101-02 (1991); Mark V. Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 HARV. L. REV. 1698, 1699 (1980).
29. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 406 n.11 (1980). Geraghty Presented the issue whether a plaintiff whose claim had become moot nonetheless could appeal the denial of class certification. The Court openly admitted that "the strict, formalistic view of Art. III jurisprudence, while perhaps the starting point of all inquiry, is riddled with exceptions" motivated by "practicalities and prudential considerations." Id.
30. For example, in Geraghty, the Court said: The dissent is correct that once exceptions are made to the formalistic interpretation of Art. III, principled distinctions and bright lines become more difficult to draw. We do not attempt to predict how far down the road the Court eventually will go toward Premising jurisdiction "upon the bare existence of a sharply presented issue in a concrete and vigorously argued case." Each case must be decided on its own facts. Id. (quoting id. at 421 (Powell, J., dissenting)).
31. See Honig v. Doe, 484 U.S. 305, 330 (1988) (Rehnquist, C.J., concurring); see also Gene R. Nichol, Jr., Moot Cases, Chief Justice Rehnquist, and the Supreme Court, 22 CONN. L. REV. 703, 705-06 (1990) (commenting on Chief Justice Rehnquist's opinion).
32. See Honig, 484 U.S. at 339-42 (Scalia, J., dissenting).
33. Others have previously argued for the deconstitutionalization of standing and ripeness, but on quite different grounds. See Fletcher, supra note 9, at 223 ("[S]tanding should simply be a question on the merits of plaintiff's claim."); Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. CHI. L. REV. 153, 180-83 (1987) (asserting that the rigidity of Article III jurisprudence cannot be reconciled with the flexibility needed in ripeness analysis).
34. Geraghty, 445 U.S. at 397 (quoting Monaghan, supra note 2, at 1384).
35. CHEMERINSKY, supra note 4, § 2.5.1, at 109; see also Honig, 484 U.S. at 317 ("That the dispute . . . was very much alive when suit was filed, or at the time the Court of Appeals rendered its judgment, cannot substitute for the actual case or controversy that an exercise of this Court's jurisdiction requires.").
36. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).
37. See Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442, 465 (S.D. Fla. 1980), modified sub nom. Haitian Refugee Ctr. v. Smith, 676 F.2d 1023 (5th Cir. Unit B 1982); 13A WRIGHT, MILLER & COOPER, supra note 19, § 3533.1, at 225-26.
38. See North Carolina v. Rice, 404 U.S. 244, 246 (1971) (holding that federal courts are "without power to decide questions that cannot affect the rights of litigants" at bar).
39. See infra pp. 623-25.
40. See Kremens v. Bartley, 431 U.S. 119, 134 n.15 (1977); Richardson v. Ramirez, 418 U.S. 24, 35-36 (1974).
41. DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam) (quoting DeFunis v. Odegaard, 507 P.2d 1169, 1177 n.6 (Wash. 1973)).
42. The nuptial metaphor is Gene Nichol's. See Nichol, supra note 25, at 156 (maintaining lat the "marriage of ripeness and article III is flawed").
43. 375 U.S. 301 (1964).
44. See id. at 302.
45. See id.
46. See id.
47. See Jafco, Inc. v. Liner, 49 L.R.R.M. (BNA) 2585, 2586 (1962).
48. See Liner, 375 U.S. at 303.
49. See id. at 304.
50. See id. at 305.
51. Id. at 306 (quoting St. Pierre v. United States, 319 U.S. 41, 42 (1943)).
52. Id. at 306 n.3.
53. See California v. San Pablo & Tulare R.R. Co., 149 U.S. 308, 314 (1893) ("[T]he Court is not empowered to decide moot questions.").
54. See Liner, 375 U.S. at 306 n.3 (citing Sidney A. Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U. PA. L. REV. 125 (1946); and Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U. PA. L. REV. 772 (1955)).
55. See Liner, 375 U.S. at 306 n.3 (citing Sidney A. Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U. PA. L. REV. 125 (1946); and Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U. PA. L. REV. 772 (1955)).
56. The Note stated: Under the Federal Constitution, the courts of the United States can render decisions only in "cases" and "controversies." However, these terms inherently are capable of many varying interpretations and have never been defined authoritatively. Hence, any restriction of judicial power created by construction of such terms may properly be termed self-imposed. Note, supra note 46, at 772 (footnote omitted) (emphasis added).
57. Diamond, supra note 46, at 125-26. As noted above, other scholars have rejected this unsupported assertion. See supra note 18.
58. See, e.g., DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam); North Carolina v. Rice, 404 U.S. 244, 246 (1971).
59. See REDISH, supra note 20, at 17; Wechsler, supra note 17, at 1005-06. A recent dissenting voice is that of Professor Barry Friedman, who argues that "[t]he congressional control approach is inconsistent with two hundred years of judicial and congressional action, and ought to be reassessed." Barry Friedman, A Different Dialogue: The Supreme Court, Congress and Federal Jurisdiction, 85 NW. U. L. REV. 1, 2 (1990). He proposes that it be replaced with a model under which "the contours of federal jurisdiction are resolved as the result of an interactive process between Congress and the Court on the appropriate uses and bounds of the federal judicial power." Id. at 2-3. I agree with Friedman's general proposition in favor of maintaining a dialogue between Congress and the courts. See infra pp. 614-15; see also Logan, supra note 17, at 41 ("In the context of evaluating standing when a plaintiff asserts a claim based upon the Constitution, . . . the Court has not been sensitive to the need for dialog and should be."). However, the dialogic approach and the congressional control approach (as properly understood) are not necessarily inconsistent. The presumption in favor of congressional control reserves an oversight role for Congress whenever the Constitution does not require otherwise. It allows federal appellate courts to act as "corporate officers" to manage the business of federal jurisdiction. See infra p. 615. This approach maintains the primacy of congressional oversight through a process of delegation and dialogue. Friedman's mistake is to assume that, because "officers" (that is, the courts) make more decisions than "directors" (that is, Congress), they are in charge. In reality, the directors do and should maintain the ultimate say.
60. U.S. CONST, art. III, § 2.
61. Id. art. I, § 8, cl. 9.
62. Id. art. III, § 1.
63. See Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938) ("There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States."); Kline v. Burke Constr. Co., 260 U.S. 226, 234 (1922) (holding that Congress may restrict lower federal courts' jurisdiction "at its discretion"); Sheldon v. Sill, 49 U.S. (8 How.) 440, 449 (1850) ("'The political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress . . . .'" (quoting Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 10 n.1 (1799))). It is generally accepted, however, that Congress may not restrict strip jurisdiction in a way that violates constitutional provisions such as the Due rocess Clause or the Equal Protection Clause. See CHEMERINSKY, supra note 4, § 3.3, at 165 n.4. It might be argued that the Framers' rejection of an explicit provision for congressional control of lower federal court jurisdiction proves that the Framers' intent was not to have congressional control. On August 27, 1787, at the end of a day in which many changes pertaining to the judiciary were made, the Convention (apparently without discussion) unanimously struck the following sentence from what would eventually become Article III: "The Legislature may assign any part of the jurisdiction above mentioned (except the trial of the President of the United States) in the manner, and under the limitations which it shall think proper, to such Inferior Courts, as it shall constitute from time to time." 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 187, 431 (Max Farrand ed., rev. ed. 1937) [hereinafter FARRAND]. This vote might be interpreted in either of two diametrically opposed ways. It might mean that the Convention did not want Congress to have control over the lower courts' jurisdiction, if indeed Congress should decide to create any. It could also mean that the Convention, having already settled on broad congressional discretion to create lower federal courts, simply thought the provision superfluous. The almost casual manner in which the Convention struck this sentence suggests a. stylistic concern, which tends to support the latter interpretation. However, in the absence of other evidence, I doubt that this particular action by the Convention can legitimately be used to support any proposition at all.
64. Professor Eisenberg has argued that Congress is required to vest the federal courts with jurisdiction to hear all constitutional claims, but he would not make any distinction between the Supreme Court or lower courts. See Theodore Eisenberg, Congressional Authority to Restrict Lower Federal Court Jurisdiction, 83 YALE L.J. 498, 504-09 (1974). Professor Amar has argued that Congress must vest the federal courts with the full Article III complement of federal question, admiralty, and ambassadorial jurisdiction, but he too insists on no particular allocation among the federal courts. See Akhil R. Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 206 (1985).
65. Professor Eisenberg has argued that Congress is required to vest the federal courts with jurisdiction to hear all constitutional claims, but he would not make any distinction between the Supreme Court or lower courts. See Theodore Eisenberg, Congressional Authority to Restrict Lower Federal Court Jurisdiction, 83 YALE L.J. 498, 504-09 (1974). Professor Amar has argued that Congress must vest the federal courts with the full Article III complement of federal question, admiralty, and ambassadorial jurisdiction, but he too insists on no particular allocation among the federal courts. See Akhil R. Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 206 (1985).
66. See CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 7-8 (1969).
67. See David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 580-87 (1985).
68. Professor Shapiro refers to this as "fine tuning." Id. at 574.
69. To the extent that I argue for the primacy of congressional control over the conditions under which the federal courts may exercise jurisdiction, I agree with Professor Monaghan. See Monaghan, supra note 2, at 1376-79. However, we differ on the ground rules governing the judicial-legislative dialogue. Monaghan would have the courts refuse to adjudicate cases brought by ideological plaintiffs absent congressional authorization. See id. at 1376 (citing Flast v. Cohen, 392 U.S. 83, 116 (1968) (Harlan, J., dissenting)). I would reverse the presumption; federal courts should proceed to the merits of any claim falling within a congressional grant of jurisdiction (subject to the usual prudential caveats) unless Congress has withdrawn jurisdiction over that particular class of cases. The presumption should be in favor of proceeding because it is logical that, in the abstract, Congress would want the courts' input on the shaping of their own agenda. The burden is always on those who would assert that Congress abjures the courts' participation in the shaping of any particular facet of their agenda. This is equally true whether or not the cases are brought by ideological plaintiffs.
70. See, e.g., Richard D. Freer, A Principled Statutory Approach to Supplemental Jurisdiction, 987 DUKE L.J. 34, 36-37 (offering a theoretical justification for pendent and ancillary jurisdiction despite the absence of explicit congressional authorization).
71. That the justiciability doctrines are judicially invented methods of narrowing jurisdictional grants does not at all mean that Congress should be denied control over their scope. Compare, for example, the broad power that Congress enjoys to create causes of action to challenge administrative agency action - and, therefore, to create "injury-in-fact" when it would not otherwise exist. A classic example is Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), in which a lawsuit was filed against realtors who were alleged to have "steered" racial minorities away from white neighborhoods. See id. at 373-74. One of the black plaintiffs was a "tester" (that is, she had no intention of renting or buying in the neighborhood but rather was there only to collect evidence of discriminatory behavior). In the absence of section 804 of the Fair Housing Act of 1968, 42 U.S.C. S 3604 (Supp. 1991), the tester would have suffered no cognizable injury-in-fact from the discriminatory steering. Section 8o4(d), however, created an enforceable right to be told the truth about housing availability. Because she had been lied to, the tester suffered cognizable injury to her statutorily-created rights. See Havens Realty, 455 U.S. at 373-74; see also Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973) ("Congress may enact statutes creating legal rights, the invasion of which creates standing, even thoueh no injury would exist without the statute."); Brandon v. Eckard, 569 F.2d 683, 687-88 (D.C. Cir. 1977) (holding that, in the Freedom of Information Act, 5 U.S.C. § 552 (Supp. 1991), Congress created standing in "any person" to challenge denial of access to information, irrespective personal interest in the requested information); Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432, 1474-80 (1988) ("[T]he best view is that article III permits Congress to create standing as it chooses."). It should be noted, however, that the Court may be ready to cut back on this broad power. See Gollust v. Mendell, III S. Ct. 2173, 2180 (1991) (expressing "serious constitutional doubt" whether Congress may create standing in the absence of "distinct and palpable injury" to the plaintiff).
72. 330 U.S. 501 (1947).
73. See id. at 512.
74. See id. at 507 & n.6.
75. See Shapiro, supra note 57, at 557.
76. See 28 U.S.C. § 1404(a) (1988).
77. id. § 1406(a).
78. Note, Forum Non Conveniens and American Plaintiffs in the Federal Courts, 47 U. CHI. L. REV. 373, 377 (1980).
79. Shapiro, supra note 57, at 545 ("[Judicial discretion] has ancient and honorable roots at common law as well as in equity.").
80. For my views on precedential constraint and its implications for vertical allocation of power among federal courts, see Evan T. Lee, Principled Decision Making and the Proper Role of Federal Appellate Courts, 64 S. CAL. L. REV. 235 (1991)
81. See Shapiro, supra note 57, at 574-77.
82. 74 U.S. (7 Wall.) 506 (1869). The facts of the case are set forth in Ex Parte McCardle (McCardle I), 73 U.S. (6 Wall.) 318, 320-21 (1868) (denying a motion to dismiss McCardle's appeal).
83. See McCardle I. 73 U.S. (6 Wall.) at 318.
84. See id.
85. See McCardle II, 74 U.S. (7 Wall.) at 508.
86. U.S. CONST. art. III, § 2.
87. See McCardle II, 74 U.S. (7 Wall.) at 512-14.
88. See id.
89. See id. at 515. McCardle had failed to plead the 1789 Act as a basis for jurisdiction. See Ex Parte Yerger, 75 U.S. (8 Wall.) 85, 104 (1869).
90. 75 U.S. (8 Wall.) 85 (1869).
91. See 2 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 496-97 (revised ed. 1937).
92. 28 U.S.C. § 1331 (1988).
93. U.S. CONST. art. III, § 2.
94. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 494-95 (1983).
95. 22 U.S. (9 Wheat.) 738 (1824).
96. See id. at 741. The Ohio officers were trying to enforce a tax against the bank, see id., contrary to McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
97. See Osborn, 22 U.S. (9 Wheat.) at 816, 819.
98. See id. at 818.
99. Id. at 823.
100. See id. at 828.
101. See id. at 875 (Johnson, J., dissenting).
102. See CHEMERINSKV, supra note 4, § 5.2, at 226.
103. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908).
104. Nor may the plaintiff sidestep this limitation by requesting a judicial declaration of the invalidity of a federal statute that could provide a defense. See, e.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 672-74 (1950).
105. See CHEMERINSKY, supra note 4, § 5.2, at 231, 237-41.
106. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813-17 (1986).
107. For an affirmative answer, see Paul J. Mishkin, The Federal "Question" in the District Courts, 53 COLUM. L. REV. 157, 160 (1953).
108. The rule has been savaged, see Donald D. Doernberg, There's No Reason for It; It's Just Our Policy: Why the Well-Pleaded Complaint Rule Sabotages the Purposes of Federal Question Jurisdiction, 38 HASTINGS L.J. 597, 662-63 (1987) (stressing the importance of federal courts ability to decide questions of federal law), as well as praised, see JACK H. FRIEDENTHAL, MARY K. KANE & ARTHUR R. MILLER, CIVIL PROCEDURE, § 2.4, at 23 (1985) (stressing the limited nature of federal subject matter jurisdiction).
109. The rule has been savaged, see Donald D. Doernberg, There's No Reason for It; It's Just Our Policy: Why the Well-Pleaded Complaint Rule Sabotages the Purposes of Federal Question Jurisdiction, 38 HASTINGS L.J. 597, 662-63 (1987) (stressing the importance of federal courts ability to decide questions of federal law), as well as praised, see JACK H. FRIEDENTHAL, MARY K. KANE & ARTHUR R. MILLER, CIVIL PROCEDURE, § 2.4, at 23 (1985) (stressing the limited nature of federal subject matter jurisdiction).
110. See Mishkin, supra note 97, at 160-63. Professor Mishkin notes that if the courts were to read the general federal question statute as broadly as the constitutional grant, they would be flooded with litigation only tangentially related to federal initiatives. See id. at 162. Thus, the narrow construction of the federal question statute is justifiable. Mishkin insists, however, that the narrow construction should not be frozen into the constitutional grant: "If Congress, in full awareness of the situation, had unequivocally called for such a result, then it would be the duty of the courts to obey." Id.
111. This was the argument rejected so decisively in Monroe v. Pape, 365 U.S. 167, 173-74 (1961). The Court recently reiterated its rejection of the argument. See Zinermon v. Burch, 110 S. Ct. 975, 982-83 (1990).
112. See Mitchum v. Foster, 407 U.S. 225, 242 (1972).
113. In fact, one need not resort to the extreme example given above. The Supreme Court has, under the aegis of "Our Federalism" abstention, held that the federal courts may not interfere with ongoing state judicial and certain administrative proceedings absent exceptional circumstances. See Younger v. Harris, 401 U.S. 37, 53-54 (1971). Professor Redish has forcefully argued that such abstention violates separation of powers principles. See REDISH, supra note 20, at 71-74.
114. One might argue that Congress always has the power simply to order the courts not to abstain in any particular area. This is certainly true, but the force of the argument is diminished by two factors. First, courts will always have the last word, in the sense that they can construe anti-abstention statutes narrowly. Second, courts do not always make it clear whether abstention is prudentially or constitutionally driven. For example, whether the Younger doctrine is federal common law or constitutional law is an open question. See CHEMERINSKY, supra note 4, § 13.2, at 627-28. But see Massey, supra note 8, at 812-13 (arguing that all the abstention doctrines should be considered constitutionally compelled).
115. How might Congress react if the Court were io deconstitutionalize justiciability? First, Congress might reaffirm the justiciability doctrines as they are presently constituted - that is, Congress might inject a "personal stake" requirement or reasonable facsimile into each of its jurisdictional grants. For example, Congress could limit the general federal question statute to "Hohfeldian" plaintiffs - those who have "personal and proprietary" interests, as opposed to ideological ones. See Flast v. Cohen, 392 U.S. 83, 119 n.5 (1968) (Harlan, J., dissenting). Indeed, Congress might restrict access to federal courts for public interest litigation even more than at present by defining "personal stake" in an especially narrow way - for example, by decreeing that an injured plaintiff lacks a "personal stake" in a controversy unless she can make a threshold showing that no other potential plaintiff's injury is as severe as hers. A second possibility is that Congress might write a "personal stake" requirement into the general federal question statute, 28 U.S.C. § 1331 (1989), but not into the civil rights jurisdictional statute, 28 U.S.C. § 1343(a)(3) (1989). A third possibility is that Congress might do nothing for the present and leave the courts to deal with public values litigation on a prudential basis until Congress became dissatisfied with their approach. Full examination of these options must await another occasion. All three options are permissible and tolerable but not equally desirable - the third option would be the wisest.
116. See, e.g., Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 571 (1984); Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 334 & n.6 (1980); County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).
117. Monaghan, supra note 2, at 1384.
118. See Flast, 392 U.S. at 100-01.
119. 410 U.S. 113 (1973).
120. See id. at 120.
121. See id. at 124-25.
122. Id. at 125.
123. See id.
124. Cf., e.g., Allen v. Wright, 468 U.S. 737, 755 (1984) (holding that mere membership in a racial group at which stigmatizing conduct is targeted is insufficient to confer standing); Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 488-90 (1982) (holding that neither citizenship nor status as a taxpayer in itself confers standing to challenge illegal government conduct); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 226-27 (1974) (same).
125. She might have had a personal stake in review of the statute if she had been faced with criminal prosecution, but the Court's opinion makes no mention of any such threat.
126. 445 U.S. 388 (1980).
127. See id. at 393.
128. See id. at 393-94.
129. See id. at 407.
130. See id. at 401-04.
131. See id. at 402.
132. See id.
133. Cf. International Primate Protection League v. Administrators of Tulane Educ. Fund, in S. Ct. 1700, 1704-05 (1991) (holding that the plaintiffs' right to sue in state court rather than in federal court conferred standing to challenge allegedly improper removal).
134. See Geraghty, 445 U.S. at 404 n.11.
135. Id. at 404 n.11.
136. See id. at 404-05 n.11 (citing Flast v. Cohen, 392 U.S. 83 (1968)).
137. See id. at 406 n.11 ("Each case must be decided on its own facts.").
138. Id. at 421 (Powell, J., dissenting).
139. ISA WRIGHT, MILLER & COOPER, supra note 19, § 3533.1, at 225-26 (footnotes omitted).
140. See PAUL M. BATOR, DANIEL J. MELTZER, PAUL J. MISHKIN & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 79-80 (3d ed. 1988) [hereinafter HART & WECHSLER (3d ed.)]. The dispute resolution model has also been referred to as the "private rights" model. See Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 276-81 (1990); cf. GRANT GILMORE, THE AGES OF AMERICAN LAW 109 (1977) ("The function of law . . . is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on whose soundness, it must be assumed, there is a general consensus among us.").
141. See PAUL M. BATOR, DANIEL J. MELTZER, PAUL J. MISHKIN & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 79-80 (3d ed. 1988) [hereinafter HART & WECHSLER (3d ed.)]. The dispute resolution model has also been referred to as the "private rights" model. See Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 276-81 (1990); cf. GRANT GILMORE, THE AGES OF AMERICAN LAW 109 (1977) ("The function of law . . . is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on whose soundness, it must be assumed, there is a general consensus among us.").
142. See PAUL M. BATOR, DANIEL J. MELTZER, PAUL J. MISHKIN & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 79-80 (3d ed. 1988) [hereinafter HART & WECHSLER (3d ed.)]. The dispute resolution model has also been referred to as the "private rights" model. See Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 276-81 (1990); cf. GRANT GILMORE, THE AGES OF AMERICAN LAW 109 (1977) ("The function of law . . . is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on whose soundness, it must be assumed, there is a general consensus among us.").
143. See MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS 1 (1981) ("So universal across both time and space is this simple social invention of triads that we can discover almost no society that fails to employ it.").
144. See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281. 1282 (1976) (observing that in the "received tradition" of civil adjudication, litigation is a contest between diametrically opposed unitary interests).
145. See id. at 1282-83 (describing the scope of relief as "derived more or less logically from the substantive violation").
146. The mere existence of a genuine dispute, however, may be insufficient to confer legitimacy on judicial action. Those who embrace the dispute resolution theory would say that such a dispute is a necessary but not sufficient precondition to the legitimate exercise of judicial power. But cf. REDISH, supra note 20, at 93 ("[I]t makes perfect sense to employ injury-in-fact . . . as a sufficient condition for the exercise of federal judicial power." (emphasis in original)). Redish rejects the dispute resolution model as an exclusive source of legitimacy in the exercise of judicial power.
147. Cf. PAUL M. BATOR, PAUL J. MISHKIN, DAVID L. SHAPIRO & HERBERT WECHSLER, HAST & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 81 (2d ed. 1973) [hereinafter HART & WECHSLER (2d ed.)] (suggesting that the case-specific justification for adjudication in Marbury v. Madison, 5 U.S. d Cranch) 137 (1803), extends to nonconstitutional cases as well).
148. S U.S. (1 Cranch) 137 (1803).
149. See id. at 177-79.
150. See id.
151. The "public values" model is also referred to as the "public law litigation" model, Chayes, supra note 131, at 1204; the "special function" model, Monaghan, supra note 2, at 1368-71; the 'judicial-political" model, REDISH, supra note 20, at 88, 103-06, and the "public action" model, Louis L. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 HARV. L. REV. 1265, 1267 (1961). I use the phrase "public values," Fiss, supra note 14, at 5, because it most directly links the structural characteristics of this type of litigation to its underlying justification, which is the function of giving meaning to public values. I do not mean to minimize the differences among these theories. For example, I read Fiss's theory as embracing the public values justification for adjudication to the exclusion of the dispute resolution model - a position that I believe goes too far. See Fiss, supra note 14, at 30-31. For a similar interpretation of Fiss's argument, see Steven D. Smith, Reductionism in Legal Thought, 91 COLUM. L. REV. 68, 78 (1991), in which Fiss is labeled a "reductionist." In contrast, the others clearly do not deny that dispute resolution continues to provide a justification for adjudication. See REDISH, supra note 20, at 93 ("No one could doubt that a fundamental Purpose of the exercise of judicial jurisdiction is to vindicate individual rights and claims."); Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. pA. L. REV. 1033, 1034 (1968) (conceding that the "central function of the courts is the determination of the individual's claim to 'just' treatment"); Monaghan, supra note 2, at 1392 n.176 (agreeing with Jaffe).
152. The "public values" model is also referred to as the "public law litigation" model, Chayes, supra note 131, at 1204; the "special function" model, Monaghan, supra note 2, at 1368-71; the 'judicial-political" model, REDISH, supra note 20, at 88, 103-06, and the "public action" model, Louis L. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 HARV. L. REV. 1265, 1267 (1961). I use the phrase "public values," Fiss, supra note 14, at 5, because it most directly links the structural characteristics of this type of litigation to its underlying justification, which is the function of giving meaning to public values. I do not mean to minimize the differences among these theories. For example, I read Fiss's theory as embracing the public values justification for adjudication to the exclusion of the dispute resolution model - a position that I believe goes too far. See Fiss, supra note 14, at 30-31. For a similar interpretation of Fiss's argument, see Steven D. Smith, Reductionism in Legal Thought, 91 COLUM. L. REV. 68, 78 (1991), in which Fiss is labeled a "reductionist." In contrast, the others clearly do not deny that dispute resolution continues to provide a justification for adjudication. See REDISH, supra note 20, at 93 ("No one could doubt that a fundamental Purpose of the exercise of judicial jurisdiction is to vindicate individual rights and claims."); Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. pA. L. REV. 1033, 1034 (1968) (conceding that the "central function of the courts is the determination of the individual's claim to 'just' treatment"); Monaghan, supra note 2, at 1392 n.176 (agreeing with Jaffe).
153. The "public values" model is also referred to as the "public law litigation" model, Chayes, supra note 131, at 1204; the "special function" model, Monaghan, supra note 2, at 1368-71; the 'judicial-political" model, REDISH, supra note 20, at 88, 103-06, and the "public action" model, Louis L. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 HARV. L. REV. 1265, 1267 (1961). I use the phrase "public values," Fiss, supra note 14, at 5, because it most directly links the structural characteristics of this type of litigation to its underlying justification, which is the function of giving meaning to public values. I do not mean to minimize the differences among these theories. For example, I read Fiss's theory as embracing the public values justification for adjudication to the exclusion of the dispute resolution model - a position that I believe goes too far. See Fiss, supra note 14, at 30-31. For a similar interpretation of Fiss's argument, see Steven D. Smith, Reductionism in Legal Thought, 91 COLUM. L. REV. 68, 78 (1991), in which Fiss is labeled a "reductionist." In contrast, the others clearly do not deny that dispute resolution continues to provide a justification for adjudication. See REDISH, supra note 20, at 93 ("No one could doubt that a fundamental Purpose of the exercise of judicial jurisdiction is to vindicate individual rights and claims."); Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. pA. L. REV. 1033, 1034 (1968) (conceding that the "central function of the courts is the determination of the individual's claim to 'just' treatment"); Monaghan, supra note 2, at 1392 n.176 (agreeing with Jaffe).
154. See Fiss, supra note 14, at 2. Fiss appears to use the terms "public values" and "constitutional values" interchangeably, but equating the two concepts may not be entirely accurate. Although the vast majority of our most important public values are embodied in the Constitution, a few are not (protection of the environment, for example).
155. See id. at 14.
156. Chayes, supra note 131, at 1284.
157. Arguably, if the Court continues to insist that injury is required for a plaintiff to have standing under Article III, it should also hold that the prohibition against third-party standing is constitutionally compelled. But this prospect bumps up against the currently existing exception for First Amendment overbreadth. See, e.g., Virginia v. American Booksellers Ass'n, 484 U.S. 383, 392-93 (1988); Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 634 (1980). This difficulty might be circumvented by adopting Monaghan's reasoning that the overbreadth doctrine is not truly an exception to the prohibition against third-party standing. Rather, because the litigant is challenging a statute as facially unconstitutional, she is actually asserting her own rights. See Henry P. Monaghan, Third Party Standing, 84 COLUM. L. REV. 277, 282-85 (1984). But see Richard H. Fallen, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 874 (1991) (arguing that the primary rationale underlying overbreadth doctrine is the Court's desire to lessen the chilling effect of broad statutes on First Amendment values, not its concern for an individual's entitlement "not to be sanctioned under an unconstitutional rule of law").
158. Arguably, if the Court continues to insist that injury is required for a plaintiff to have standing under Article III, it should also hold that the prohibition against third-party standing is constitutionally compelled. But this prospect bumps up against the currently existing exception for First Amendment overbreadth. See, e.g., Virginia v. American Booksellers Ass'n, 484 U.S. 383, 392-93 (1988); Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 634 (1980). This difficulty might be circumvented by adopting Monaghan's reasoning that the overbreadth doctrine is not truly an exception to the prohibition against third-party standing. Rather, because the litigant is challenging a statute as facially unconstitutional, she is actually asserting her own rights. See Henry P. Monaghan, Third Party Standing, 84 COLUM. L. REV. 277, 282-85 (1984). But see Richard H. Fallen, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 874 (1991) (arguing that the primary rationale underlying overbreadth doctrine is the Court's desire to lessen the chilling effect of broad statutes on First Amendment values, not its concern for an individual's entitlement "not to be sanctioned under an unconstitutional rule of law").
159. See CHEMERINSKY, supra note 4, § 2.3.4, at 72 & n.130.
160. See, e.g., Edmonson v. Leesville Concrete Co., in S. Ct. 2077, 2087-88 (1991) (citing Powers v. Ohio, in S. Ct. 1364, 1370 (1991)); CHEMERINSKY, supra note 4, § 2.3.4, at 73-77. The other two exceptions to the prohibition against third-party standing are when the litigant and the third party are in a close relationship and when the litigant challenges a statute on the grounds that it "substantially abridges the First Amendment rights of other parties not before toe court." Schaumburg, 444 U.S. at 634. Chemerinsky suggests that a fourth exception might be the doctrine allowing organizations to assert the rights of their members. See CHEMERINSKY, supra note 4, § 2.3.4, at 73 n.134, § 2.3.7, at 88-90.
161. 346 U.S. 249 (1953).
162. 405 U.S. 438 (1972).
163. See Barrows, 346 U.S. at 251.
164. See id. at 252.
165. See id. at 251.
166. See id.
167. See id. at 256-59.
168. See Eisenstadt, 405 U.S. at 443-46.
169. See id. at 446.
170. The Court has upheld the assertion of rights on behalf of others in three recent cases. See Edmonson v. Leesville Concrete Co., in S. Ct. 2077, 2087-88 (1991) (permitting a civil litigant to assert the rights of wrongfully excluded jurors); Powers v. Ohio, in S. Ct. 1364, 1370 (1991) (same for a criminal defendant); United States Dep't of Labor v. Triplett, no S. Ct. 1428, 1431-32 (1990) (permitting an attorney to assert his client's due process right to challenge restriction on attorney's fee awards).
171. The Equal Protection Clause applied to the case because judicial enforcement of the covenant by a state court would constitute state action under the Fourteenth Amendment. See Shelley v. Kraemer, 334 U.S. 1, 18-23 (1948).
172. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396-97 (1980); Roe v. Wade, 410 U.S. 113, 123 (1973) (citing Baker v. Carr, 369 U.S. 186, 204 (1962)).
173. See Roe, 410 U.S. at 123-25.
174. See Geraghty, 445 U.S. at 406 n.11 ("Our point is that the strict, formalistic view of Art. III jurisprudence, while perhaps the starting point of all inquiry, is riddled with exceptions.").
175. For a sample of the superlatives showered on the book over the years, see Akhil R. Amar, Law Story, 102 HARV. L. REV. 688, 688, 689, 714 (1989).
176. HART & WECHSLER (3d ed.), supra note 129, at 79; HART & WECHSLER (2d ed.), supra note 134, at 81.
177. 162 See id. (quoting Fiss, supra note 14, at 29-30).
178. Id. at 15 (citing Williams v. Zbaraz, 448 U.S. 358, 367-68 (1980); and Ellis v. Dyson, 421 U.S. 426, 434 (1975)).
179. See HART & WECHSLER (3d ed.), supra note 129, at 79-82.
180. One such question is whether "there [is] a danger . . . that [courts] will act on the basis of inadequate information or without adequate sensitivity to the particular situation." Id. at 81.
181. See id. at 82.
182. Id. (citing developments in class actions and in mootness and overbreadth doctrine).
183. This matter deserves fuller development, which I hope to provide in an article tentatively titled "The Contemporary Social and Political Logic of Adjudication."
184. This difficulty in cataloguing would have to be resolved at a practical level, and I hope to do so in the future in the article mentioned in note 168.
185. It is not clear whether Congress may regulate private activities that, if engaged in by the government, would violate due process or equal protection principles. See JOHN E. NOWAK, RONALD D. ROTUNDA & J. NELSON YOUNG, CONSTITUTIONAL LAW § 12.1, at 425 & n.20 (3d ed 1986) (citing United States v. Guest, 383 U.S. 745 (1966)). But that is really beside the point. For example, when Congress prohibits federal government entities from racial discrimination in hiring, it does much more than commit itself to "living by" the value of racial equality - it sends a clear message that racial discrimination in employment is morally unacceptable. When courts adjudicate under the antidiscrimination statute, they reinforce and give operational content to the moral lesson.
186. See, e.g., INGO MÜLLER, HITLER'S JUSTICE 219-30 (1991) (describing how the legal Positivism of German judges during the Nazi regime led them to carry out Hitler's worst Policies).
187. See, e.g., United States v. Klein, So U.S. (13 Wall.) 128, 146-47 (1872).
188. At least, there would be no justification for the courts to decline the jurisdiction in gross. They might refuse to issue injunctive relief in any particular case because of, for example, a failure to show irreparable injury. But cf. Douglas Laycock, The Death of the Irreparable Injury Rule, 103 HASV. L. REV. 688, 694-722 (1990) (arguing that the traditional notion of irreparable injury rarely affects the outcome of contemporary cases).
189. This idea is suggested by the work of Bruce Ackerman. See Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1051 (1984) ("[T]he Supreme Court does not act undemocratically when it looks backward to the legal principles enacted into our higher law by successful constitutional movements of the past.").
190. For a different, and perhaps mutually exclusive, reason to downplay the importance of the so-called "countermajoritarian difficulty," see Erwin Chemerinsky, The Supreme Court, 1988 Term - Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 74-77 (1989) (arguing) that judicial review may be irreconcilable with majority rule but is an integral part of democracy). The phrase "countermajoritarian difficulty" was coined in ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16-23 (2d ed. 1986).
191. For a different, and perhaps mutually exclusive, reason to downplay the importance of the so-called "countermajoritarian difficulty," see Erwin Chemerinsky, The Supreme Court, 1988 Term - Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 74-77 (1989) (arguing) that judicial review may be irreconcilable with majority rule but is an integral part of democracy). The phrase "countermajoritarian difficulty" was coined in ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16-23 (2d ed. 1986).
192. See supra note 61.
193. See California Bankers Ass'n v. Schultz, 416 U.S. 21, 71, 75 (1974) (ruling that a Fifth Amendment privilege claim was "premature"); Socialist Labor Party v. Gilligan, 406 U.S. 583, 587 (1972) (finding the record too "skimpy" to support adjudication on the merits). See generally CHEMERINSKY, supra note 4, § 2.4.3, at 107-09 (explaining how the "fitness" of a case for judicial review relates to the ripeness inquiry as a whole).
194. See supra pp. 609-10.
195. For example, Professor Currie seems inclined to extend standing doctrine beyond present constitutional parameters, but not ripeness or mootness. See David P. Currie, Judicial Review Under Federal Pollution Laws, 62 IOWA L. REV. 1221, 1277-78 (1977).
196. See Honig v. Doe, 484 U.S. 305, 329-32 (1988) (Rehnquist, C.J., concurring); United States Parole Comm'n v. Geraghty, 445 U.S. 388, 404 n.11 (1980).
197. Cf. Williamson v. Lee Optical, Inc., 348 U.S. 483, 489 (1955) (noting that legislative reform "may take one step at a time, addressing itself to the phase of the problem which seems most acute").
198. See infra Part V. A.
199. Of course, this would not be true if the case were mooted prior to the submission of any briefing of substance.
200. For a rare exception, see note 269 below.
201. 484 U.S. 305 (1988).
202. Id. at 330 (Rehnquist, C.J., concurring).
203. Id. at 339 (Scalia, J., dissenting).
204. See, e.g., North Carolina v. Rice, 404 U.S. 244, 246 (1971); Liner v. Jafco. Inc., 375 U.S. 301, 306 n.3 (1964); Williams v. Simons, 355 U.S. 49, 57-58 (1957) (per curiam) (memorandum of Douglas, J.).
205. See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1184 (1989) ("I am more inclined to adhere closely to the plain meaning of a text [than some other judges]."). See generally George Kannar, The Constitutional Catechism of Antonin Scalio, 99 YALE L.J. 1297, 1307 (1990) (labeling Justice Scalia a textualist).
206. See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1184 (1989) ("I am more inclined to adhere closely to the plain meaning of a text [than some other judges]."). See generally George Kannar, The Constitutional Catechism of Antonin Scalio, 99 YALE L.J. 1297, 1307 (1990) (labeling Justice Scalia a textualist).
207. Honig, 484 U.S. at 340 (Scalia, J. dissenting).
208. Id. at 339 (citing Flast v. Cohen, 392 U.S. 83, 95 (1968)).
209. 307 U.S. 433 (1939).
210. Id. at 460 (opinion of Frankfurter, J.). I assume that Justice Frankfurter surmised thence of English practice at Westminster by analogy to the Court's treatment of the right to jury trial "at common law" under the Seventh Amendment. The courts decided early that the "common law" referred to in the Seventh Amendment was that of England in 1791 (the date of the amendment's ratification), and not the common law of the several states. See FRIEDENTHAL, KANE & MILLER, supra note 98, S 11.4, at 483.
211. Justice Frankfurter's Coleman v. Miller opinion cited an early English analogue to the Political question doctrine, see 307 U.S. at 433, 460 n.1, but nothing analogous to standing, mootness, or ripeness.
212. See Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE L.J. 816, 819-27 (1969); Jaffe, supra note 138, at 1269-75. Each of these articles appears to have been at least partially in response to Justice Frankfurter's views on justiciability. See Berger, supra, at 816 & n.5; Jaffe, supra note 138, at 1267-69.
213. See, e.g., RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN 18-19 (1987). For a critique of Berger's "original intent" jurisprudence, see H. Jefferson Powell, The Modern Misunderstanding of Original intent, 54 U. CHI. L. REV. 1513 (1987).
214. See, e.g., RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN 18-19 (1987). For a critique of Berger's "original intent" jurisprudence, see H. Jefferson Powell, The Modern Misunderstanding of Original intent, 54 U. CHI. L. REV. 1513 (1987).
215. Berger, supra note 195, at 819.
216. Id. Prohibition was not the only prerogative writ by which a stranger could challenge the actions of judicial, quasi-judicial, or administrative functionaries. The writ of certiorari would issue to review "'proceedings of all jurisdictions erected by Act of Parliament . . . to the end that this court may see that they keep themselves within their jurisdiction.'" Id. at 820 (quoting Rex v. Inhabitants in Glamorganshire, 91 Eng. Rep. 1287, 1288 (K.B. 1702)). The functionaries subject to writs of certiorari were generally justices of the peace, who in addition to their judicial duties acted as local county administrators. They supervised road construction and maintenance, licensed alehouses, set wage-scales for laborers and apprentices, and administered the Poor Laws. See id. at 821. In one case, for example, certiorari was held a proper vehicle to review rate-setting for the repair of a county bridge. See id. at 820 n.28.
217. Id. at 819-20.
218. Jaffe, supra note 138, at 1269.
219. See id. at 1270.
220. The rationale was that a usurpation of jurisdiction constituted an encroachment on royal prerogative, and therefore "it made little difference who raised the question." Id. at 1274. Unlike prerogative writ applications made by parties to the underlying action, however, a stranger was subject to the court's discretion whether to proceed on the merits. See id.
221. Louis L. Jaffe, Standing to Secure Judicial Review: Private Actions, 75 HARV. L. REV. 255, 302 (1961).
222. Historical English practice appears to have been quite familiar with advisory opinions. In 1575, for example, the government summoned judges to court to advise as to the execution of penal statutes. See 4 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 75 n.4 (2d ed. 1937). Judges also gave instructions regarding the administration of the Poor Laws. See id. at 76 11.3. In 1601, the government called on the Chief Justice of the Queen's Bench and the Judge of Admiralty to enact rules for the trial of cases of assurance. See id. at 69 n.1; see also E.C.S. Wade, Consultation of the Judiciary by the Executive, 46 L.Q. REV. 169, 181 (1930) (describing the same practices). Thus, the advisory opinions practice seems fairly well established as of the early seventeenth century. Later in that century, Lord Coke remonstrated against governmental requests for advisory opinions, but apparently only because the Crown Was then using the device to delay or otherwise subvert judicial decisions likely to be unfavorable to the government. See id. at 181-82.
223. Historical English practice appears to have been quite familiar with advisory opinions. In 1575, for example, the government summoned judges to court to advise as to the execution of penal statutes. See 4 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 75 n.4 (2d ed. 1937). Judges also gave instructions regarding the administration of the Poor Laws. See id. at 76 11.3. In 1601, the government called on the Chief Justice of the Queen's Bench and the Judge of Admiralty to enact rules for the trial of cases of assurance. See id. at 69 n.1; see also E.C.S. Wade, Consultation of the Judiciary by the Executive, 46 L.Q. REV. 169, 181 (1930) (describing the same practices). Thus, the advisory opinions practice seems fairly well established as of the early seventeenth century. Later in that century, Lord Coke remonstrated against governmental requests for advisory opinions, but apparently only because the Crown Was then using the device to delay or otherwise subvert judicial decisions likely to be unfavorable to the government. See id. at 181-82.
224. See Jaffe, supra note 138, at 1269-75.
225. See H. Jefferson Powell, Rules for Originalists, 73 VA. L. REV. 659, 691 (1987) ("History never obviates the necessity of choice.").
226. 2 FARRAND, supra note 54, at 186.
227. Id. at 430.
228. Id.
229. See Honig v. Doe, 484 U.S. 305, 341 (1988) (Scalia, J., dissenting).
230. See Letter from Thomas Jefferson to Chief Justice John Jay and Associate Justices (July 18, 1793), in 3 CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY, 1782-1793, at 486, 486-87 (Henry P. Johnston ed., 1891) [hereinafter CORRESPONDENCE OF JOHN JAY]. The Justices declined to answer. See Letter from Chief Justice Jay to President Washington (Aug. 8, 1793), in 3 id. at 488-89.
231. See HART & WECHSLER (2d ed.), supra note 134, at 7 & nn.26-29.
232. Justice Scalia has traced justiciability to California v. San Pablo & Tulare R.R. Co., 149 U.S. 308 (1893). See Honig, 484 U.S. at 339-40 (Scalia, J., dissenting). For other examples of nineteenth century cases that address the issue of justiciability, see Chamberlain v. Cleveland, 66 U.S. (1 Black) 419, 425-26, (1862); and Lord v. Veazie, 49 U.S. (8 How.) 251, 254-56 (1850).
233. See Amar, supra note 55, at 240-46.
234. At least, it must be admitted that the text is ambiguous on this point. Amar has responded to this concern by citing Chief Justice Marshall's opinion in Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824), in which Marshall referred to the ambassadorial jurisdiction as being based on the character of the cause and not the character of the parties, see id. at 855. See Akhil R. Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. CHI. L. REV. 443, 491 n.216 (1989). It is difficult to assess how much weight should be given to Chief Justice Marshall's dictum. As evidence of the Framers' original intent, its value is diminished by the fact that it was written well after ratification. As an exercise in textual exegesis, it fails to explain why the text should be read that way.
235. See Amar, supra note 55, at 240.
236. Amar's theory may be slightly overdrawn. Congress enacted no enduring general federal question statute until 1875 (it first enacted such a statute in 1801, but the statute was almost immediately repealed). See FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT: A STUDY IN THE FEDERAL JUDICIAL SYSTEM 25 & n.69, 28 & n.79, 65 (1928). Yet under section 25 of the Judiciary Act of 1789, 1 Stat. 73, 85-87, the Supreme Court's appellate jurisdiction over state court judgments covered only cases in which the federal claim was denied, and therefore that provision left no federal court with jurisdiction over federal question cases brought in state court and decided in favor of the federal claimant. See HART & WECHSLER (3d ed.), supra note 129, at 386 n.41. It is possible, of course, that the first Congress was mistaken about the mandatory nature of the entire federal question jurisdiction. Perhaps the better view is that the two tiers of jurisdictional categories simply create differential presumptions about whether Congress should vest the jurisdiction in the federal courts. For example, there is a strong presumption in favor of Congress's vesting federal question jurisdiction in the federal courts, and the burden is on Congress to show a compelling justification for its failure to do so with respect to any part of the jurisdiction. In contrast, the presumption in favor of vesting the diversity jurisdiction in the federal courts is quite weak; hence. Congress need demonstrate very little justification for failing to vest any part of diversity jurisdiction in the federal courts. In any event, the possibility that Amar's theory may be overdrawn does not vitiate my point about cases and controversies.
237. Amar's theory has attracted both praise, see, e.g., HART & WECHSLER (3d ed.), supra note 129, at 386, and derision, see, e.g., Martin H. Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. PA. L. REV. 1633, 1635-47 (1990). Amar responds to his detractors in Akhil R. Amar, Reports of My Death Are Greatly Exaggerated: A Reply, 138 U. PA. L. REV. 1651 (1990). Professor William Fletcher has recently suggested a different meaning of the terms "case" and "controversy." According to Fletcher, "case" denotes both civil and criminal jurisdiction, and "controversy" denotes only civil. See William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REV. 263, 265-67 (1990) (citing 1 S. TUCKER, BLACKSTONE'S COMMENTARIES app. note E, at 420-21 (Philadelphia 1803)); William A. Fletcher, Exchange on the Eleventh Amendment, 57 U. CHI. L. REV. 131, 133 (1990). It is unclear why the Framers would have thought it necessary to stress that the judicial power was not intended to cover criminal actions "between two or more States," 'between Citizens of different Slates," or "between Citizens of the same State claiming Lands under the Grants of different States." Still, even if Fletcher is correct that the words "case" and "controversy" mean "civil-plus-criminal" and "civil only," the burden is on those who would read those terms as subsuming what we now call the justiciability doctrines to prove this additional meaning.
238. Amar's theory has attracted both praise, see, e.g., HART & WECHSLER (3d ed.), supra note 129, at 386, and derision, see, e.g., Martin H. Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. PA. L. REV. 1633, 1635-47 (1990). Amar responds to his detractors in Akhil R. Amar, Reports of My Death Are Greatly Exaggerated: A Reply, 138 U. PA. L. REV. 1651 (1990). Professor William Fletcher has recently suggested a different meaning of the terms "case" and "controversy." According to Fletcher, "case" denotes both civil and criminal jurisdiction, and "controversy" denotes only civil. See William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REV. 263, 265-67 (1990) (citing 1 S. TUCKER, BLACKSTONE'S COMMENTARIES app. note E, at 420-21 (Philadelphia 1803)); William A. Fletcher, Exchange on the Eleventh Amendment, 57 U. CHI. L. REV. 131, 133 (1990). It is unclear why the Framers would have thought it necessary to stress that the judicial power was not intended to cover criminal actions "between two or more States," 'between Citizens of different Slates," or "between Citizens of the same State claiming Lands under the Grants of different States." Still, even if Fletcher is correct that the words "case" and "controversy" mean "civil-plus-criminal" and "civil only," the burden is on those who would read those terms as subsuming what we now call the justiciability doctrines to prove this additional meaning.
239. Amar's theory has attracted both praise, see, e.g., HART & WECHSLER (3d ed.), supra note 129, at 386, and derision, see, e.g., Martin H. Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. PA. L. REV. 1633, 1635-47 (1990). Amar responds to his detractors in Akhil R. Amar, Reports of My Death Are Greatly Exaggerated: A Reply, 138 U. PA. L. REV. 1651 (1990). Professor William Fletcher has recently suggested a different meaning of the terms "case" and "controversy." According to Fletcher, "case" denotes both civil and criminal jurisdiction, and "controversy" denotes only civil. See William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REV. 263, 265-67 (1990) (citing 1 S. TUCKER, BLACKSTONE'S COMMENTARIES app. note E, at 420-21 (Philadelphia 1803)); William A. Fletcher, Exchange on the Eleventh Amendment, 57 U. CHI. L. REV. 131, 133 (1990). It is unclear why the Framers would have thought it necessary to stress that the judicial power was not intended to cover criminal actions "between two or more States," 'between Citizens of different Slates," or "between Citizens of the same State claiming Lands under the Grants of different States." Still, even if Fletcher is correct that the words "case" and "controversy" mean "civil-plus-criminal" and "civil only," the burden is on those who would read those terms as subsuming what we now call the justiciability doctrines to prove this additional meaning.
240. Amar's theory has attracted both praise, see, e.g., HART & WECHSLER (3d ed.), supra note 129, at 386, and derision, see, e.g., Martin H. Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. PA. L. REV. 1633, 1635-47 (1990). Amar responds to his detractors in Akhil R. Amar, Reports of My Death Are Greatly Exaggerated: A Reply, 138 U. PA. L. REV. 1651 (1990). Professor William Fletcher has recently suggested a different meaning of the terms "case" and "controversy." According to Fletcher, "case" denotes both civil and criminal jurisdiction, and "controversy" denotes only civil. See William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REV. 263, 265-67 (1990) (citing 1 S. TUCKER, BLACKSTONE'S COMMENTARIES app. note E, at 420-21 (Philadelphia 1803)); William A. Fletcher, Exchange on the Eleventh Amendment, 57 U. CHI. L. REV. 131, 133 (1990). It is unclear why the Framers would have thought it necessary to stress that the judicial power was not intended to cover criminal actions "between two or more States," 'between Citizens of different Slates," or "between Citizens of the same State claiming Lands under the Grants of different States." Still, even if Fletcher is correct that the words "case" and "controversy" mean "civil-plus-criminal" and "civil only," the burden is on those who would read those terms as subsuming what we now call the justiciability doctrines to prove this additional meaning.
241. Amar's theory has attracted both praise, see, e.g., HART & WECHSLER (3d ed.), supra note 129, at 386, and derision, see, e.g., Martin H. Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. PA. L. REV. 1633, 1635-47 (1990). Amar responds to his detractors in Akhil R. Amar, Reports of My Death Are Greatly Exaggerated: A Reply, 138 U. PA. L. REV. 1651 (1990). Professor William Fletcher has recently suggested a different meaning of the terms "case" and "controversy." According to Fletcher, "case" denotes both civil and criminal jurisdiction, and "controversy" denotes only civil. See William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REV. 263, 265-67 (1990) (citing 1 S. TUCKER, BLACKSTONE'S COMMENTARIES app. note E, at 420-21 (Philadelphia 1803)); William A. Fletcher, Exchange on the Eleventh Amendment, 57 U. CHI. L. REV. 131, 133 (1990). It is unclear why the Framers would have thought it necessary to stress that the judicial power was not intended to cover criminal actions "between two or more States," 'between Citizens of different Slates," or "between Citizens of the same State claiming Lands under the Grants of different States." Still, even if Fletcher is correct that the words "case" and "controversy" mean "civil-plus-criminal" and "civil only," the burden is on those who would read those terms as subsuming what we now call the justiciability doctrines to prove this additional meaning.
242. This construction is not impossible, however. For example, the affirmative grant of congressional power to "regulate commerce" has also been construed to operate as a prohibition on certain state regulatory power in the absence of congressional action. When Congress regulates a particular area of commerce, contrary state regulations are invalidated under the Supremacy Clause. When Congress is silent, and when the courts interpret that silence as the manifestation of a decision to leave the area unregulated, state regulations must be invalidated under the "dormant commerce clause" doctrine. See NOWAK, ROTUNDA & YOUNG, supra note 170, § 8.1, at 260-62. But this analogy is imperfect, because in the case of the Commerce Clause, the Court is construing an affirmative grant of power to one institution as a restriction on a different, rival institution (the states), not as a restriction on the institution being empowered.
243. Little has been written about the problem of advisory opinions by federal courts. The germinal work is Felix Frankfurter, A Note on Advisory Opinions, 37 HARV. L. REV. 1002 (1924). which spawned some debate, see E.F. Albertsworth, Advisory Functions in Federal Supreme Court, 23 GEO. L.J. 643 (1935); George N. Stevens, Advisory Opinions - Present Status and an Evaluation, 34 WASH. L. REV. 1 (1959). The best contemporary treatment is 13 WRIGHT, MILLER & COOPER, supra note 19, § 3529.1, at 293-308.
244. Little has been written about the problem of advisory opinions by federal courts. The germinal work is Felix Frankfurter, A Note on Advisory Opinions, 37 HARV. L. REV. 1002 (1924). which spawned some debate, see E.F. Albertsworth, Advisory Functions in Federal Supreme Court, 23 GEO. L.J. 643 (1935); George N. Stevens, Advisory Opinions - Present Status and an Evaluation, 34 WASH. L. REV. 1 (1959). The best contemporary treatment is 13 WRIGHT, MILLER & COOPER, supra note 19, § 3529.1, at 293-308.
245. Little has been written about the problem of advisory opinions by federal courts. The germinal work is Felix Frankfurter, A Note on Advisory Opinions, 37 HARV. L. REV. 1002 (1924). which spawned some debate, see E.F. Albertsworth, Advisory Functions in Federal Supreme Court, 23 GEO. L.J. 643 (1935); George N. Stevens, Advisory Opinions - Present Status and an Evaluation, 34 WASH. L. REV. 1 (1959). The best contemporary treatment is 13 WRIGHT, MILLER & COOPER, supra note 19, § 3529.1, at 293-308.
246. See CHEMERINSKY, supra note 4, § 2.2, at 45 ("[I]n order for a case to be justiciable and not an advisory opinion, there must be substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect.").
247. See infra pp. 645-47.
248. See infra pp. 647-51. It is not really accurate to call this a "set" of cases at all; it is actually a disorganized cluster of sets of usages.
249. See Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-14 (1948); Schneiderman v. United States, 320 U.S. 118, 168 (1943) (Rutledge, J., concurring); United States v. Ferreira, 54 U.S. (13 How.) 40, 52-53 (1851); Hayburn's Case, 2 U.S. (2 Dall.) 409, 409-10 & n.2 (1792).
250. See 3 CORRESPONDENCE OF JOHN JAY, supra note 211, at 486-89 (1891) (describing the Supreme Court's refusal to answer legal questions propounded by Secretary of State Thomas Jefferson); see also Coleman v. Miller, 307 U.S. 433, 459-60 (1939) (Black, J., concurring) (stating that, because Congress enjoys "exclusive power over the [constitutional] amending process," judicial decision would constitute an advisory opinion).
251. See Harris v. Reed, 489 U.S. 255, 277 (1989); Mills v. Rogers, 457 U.S. 291, 305 (1982); Fay v. Noia, 372 U.S. 391, 429-30 (1963); Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945).
252. See Grove City College v. Bell, 465 U.S. 555, 579 (1984) (Stevens, J., concurring); Shaffer v. Heitner, 433 U.S. 186, 220 (1977) (Brennan, J., concurring in part and dissenting in part); Evans v. Newton, 382 U.S. 296, 313 (1966) (Black, J., dissenting); Culombe v. Connecticut, 367 U.S. 568, 636 (1961) (Warren, C.J., concurring).
253. See cases cited infra note 271.
254. See United Pub. Workers v. Mitchell, 330 U.S. 75, 89-90 (1947).
255. See Boston Fireftghters Union, Local 718 v. NAACP, 468 U.S. 1206, 1209-10 (1984) (Blackmun, J., dissenting); City of Los Angeles v. Lyons, 461 U.S. 95, 129 & n.20 (1983) (Marshall, J., dissenting).
256. See, e.g., Boston Firefighters Union, 468 U.S. at 1209-10 (Blackmun, J., dissenting) (arguing that ruling in a moot case would amount to an advisory opinion, which would be barred by Article III); Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 127 (1974) (Stewart, J., dissenting) (arguing that the Article III bar to advisory opinions precludes the Court from deciding issues that do not directly affect the rights of the parties).
257. 2 U.S. (2 Dall.) 409 (1792).
258. Act of Mar. 23, 1792, ch. XI, 1 Stat. 243.
259. Recall that the circuit courts were then trial courts consisting of two Supreme Court justices and one district court judge. See FRANKFURTER & LANDIS, supra note 217, at 11 & n.26.
260. See Act of Mar. 23, 1792, ch. XI, § 2, 1 Stat. at 244.
261. Id.
262. Id. § 4, 1 Stat. at 244.
263. See Hayburn's Case, 2 U.S. (2 Dall.) at 409-10.
264. The Circuit Court for the District of New York stated that "neither the secretary at war, nor any other executive officer, nor even the Legislature, are authorized to sit as a court of errors on the judicial acts or opinions of this court." Id. at 410 n.2 (the court consisted of Chief Justice Jay, Justice Cushing, and District Judge Duane). The Circuit Court for the District of Pennsylvania, noting that its decision would have been subject to revision and control by an officer in the executive branch, stated that this was "radically inconsistent with the independence of that judicial power which is vested in the courts." Id. at 411 n.2 (the court consisted of Justices Wilson and Blair and District Judge Peters). The Circuit Court for the District of North Carolina - which had no application for pension benefits before it - opined that the statute "subjects the decision of the court to a mode of revision which we consider to be unwarranted by the constitution." Id. at 412 n.2 (the court consisted of Justice Iredell and District Judge Sitgreaves).
265. 54 U.S. (13 How.) 40 (1851).
266. See id. at 46-47.
267. Id. at 52.
268. Id. at 51.
269. See id. at 47.
270. 333 U.S. 103 (1948). In this case, the issue was whether the federal courts could review review orders of the Civil Aeronautics Board granting or denying air routes for a foreign air carrier or granting or denying foreign air routes for a citizen carrier. The statute provided that these orders were to be submitted to the President and were unconditionally subject to the President's approval. The Court of Appeals had held that judicial review of the orders would not offend the President's discretion as long as the President had an opportunity to review the court's final judgment. The Supreme Court held that there could be no judicial review of the board orders. The Court rejected the idea that allowing the President to review final judgments was a constitutionally permissible method of preserving presidential prerogative in the face of judicial review: Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government. To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form. . . . This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action. Id. at 113-14.
271. Professor Chemerinsky cites Hayburn's Case to support the proposition that an advisory opinion is any decision without real-world effect. See CHEMERINSKY, supra note 4, § 2.2, at 45 In my view, the holding of the case does not warrant so broad an extrapolation. The judges concerned themselves only with lack of worldly effect brought on by legislative revision of the judgment.
272. Letter from Chief Justice Jay and Associate Justices to President Washington (Aug. 8, 1793). in 3 CORRESPONDENCE OF JOHN JAY, supra note 211, at 488.
273. United States v. Sharpe, 470 U.S. 675, 726 n.17 (1985) (Stevens, J., dissenting) (emphasis added)
274. 13 WRIGHT, MILLER & COOPER, supra note 19, § 3529.1, at 296.
275. Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935).
276. 463 U.S. 1032 (1983).
277. Id. at 1042 (quoting Herb v. Pitcairn, 324 U.S. 117, 125 (1945)).
278. See, e.g., CHEMERINSKY, supra note 4, § 10.5.1, at 535 ("The precise legal basis for the doctrine is uncertain, but most commentators regard it not as constitutionally required, but instead as a prudential rule of judicial self-restraint.").
279. See Richard A. Matasar & Gregory S. Bruch, Procedural Common Law, Federal Jurisdictional Policy, and Abandonment of the Adequate and Independent State Grounds Doctrine, 86 COLUM. L. REV. 1291, 1301-10 (1986).
280. See 16 CHARLES A. WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER & EUGEME GRESSMAN, FEDERAL PRACTICE AND PROCEDURE 5 4021, at 688-89 (1977).
281. 13 WRIGHT, MILLER & COOPER, supra note 19, § 3529.1, at 298.
282. 297 U.S. 288, 341-56 (1936) (Brandeis, J., concurring).
283. See id. at 346 n.4.
284. Id. at 345-46 (emphasis added).
285. See id.
286. Id. at 346.
287. Id. (quoting Liverpool, N. Y. & Philadelphia Steamship Co. v. Comm'rs of Emigration, 113 U.S. 33, 39 (1885)).
288. 367 U.S. 568 (1061).
289. Id. at 635-36 (Warren, C.J., concurring).
290. See cases cited supra notes 229, 230 and infra note 271.
291. See supra p. 640.
292. 268 This is the sort of wrinkle that causes me to refrain from calling for the deconstitutionalization of ripeness and standing without a full analysis of those doctrines.
293. An example of such a case is a plaintiff who wants to engage in activity she believes will soon be criminalized but dies while the litigation is pending.
294. See, e.g., Preiser v. Newkirk, 422 U.S. 395, 401-02 (1975).
295. See, e.g., North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam); Benton v. Maryland, 395 U.S. 784, 788 (1969); St. Pierre v. United States, 319 U.S. 41, 42 (1943) (per curiam).
296. See Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 HARV. L. REV 297, 306-10 (1979) [hereinafter Brilmayer, Perspectives]. This article elaborates on the "due process" argument introduced in R.L. Brilmayer, Judicial Review, Justiciability and the Limits of the Common Law Method, 57 B.U. L. REV. 807, 808 (1977) [hereinafter Brilmayer, Limits]. Professor Brilmayer's argument should not be mistaken for one based on due process per se. Rather, she argues that some of the most important policies underlying Article III are functionally similar to due process principles.
297. See Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 HARV. L. REV 297, 306-10 (1979) [hereinafter Brilmayer, Perspectives]. This article elaborates on the "due process" argument introduced in R.L. Brilmayer, Judicial Review, Justiciability and the Limits of the Common Law Method, 57 B.U. L. REV. 807, 808 (1977) [hereinafter Brilmayer, Limits]. Professor Brilmayer's argument should not be mistaken for one based on due process per se. Rather, she argues that some of the most important policies underlying Article III are functionally similar to due process principles.
298. For a list of the prerequisites to class certification in federal court,
299. The adequacy of representation requirement "obviously has a due process dimension to it." Id. at 730. The other two requirements, in turn, also are aimed at assuring adequacy of representation. See id. at 727 ("Class membership offers some assurance that the representative will adequately protect the interests of the absent class members."); id. at 729 (characterizing the typicality requirement as "practically indistinguishable" from the adequacy of representation requirement).
300. See Payne v. Tennessee, in S. Ct. 2597, 2609-10 (1991) ("[W]hen governing decisions are unworkable or are badly reasoned, 'this Court has never felt constrained to follow precedent.' . . . Stare decisis is not an inexorable command . . . ." (citations omitted)).
301. Professor Brilmayer has acknowledged the problem. See Brilmayer, Limits, supra note 272, at 823 ("[E]ven absent res judicata considerations the precedential significance of a decision for later cases may be substantial."). But see Brilmayer, Perspectives, supra note 272, at 307 ("[O]f course, the impact of stare decisis is less dramatic than that of res judicata.").
302. The terms "Hohfeldian" and "non-Hohfeldian" are used to denote the "distinction between the personal and proprietary interests of the traditional plaintiff, and the representative and public interests of the plaintiff in a 'public action.'" Flast v. Cohen, 392 U.S. 83, 119 n.5 (1968) (Harlan, J., dissenting). Professor Jaffe adopted the terms from WESLEY N. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter W, Good ed., 1978).
303. See Brilmayer, Limits, supra note 272, at 824 ("As the link between the interest asserted and the type of judicial intervention requested becomes attenuated, the risk of broadly phrased challenges increases . . . ."); Brilmayer, Perspectives, supra note 272, at 309 ("Isn't there a danger that by seeking to change the law too rapidly an ideological plaintiff will take greater risks by framing the issues in a broader, more controversial, manner?").
304. One might argue that non-Hohfeldian plaintiffs can balance the potential of sweeping victory against the risk of loss, but Hohfeldian plaintiffs care only about the risk of losing and cannot weigh that risk against the potential of a sweeping, precedent-setting victory. Thus, the ideological plaintiff may be more inclined to take some marginally greater risks in fashioning her arguments.
305. See Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U. L. REV. 337, 361 & n.100 (1978). The authors note some scholarly opinion to the effect that the ABA Code of Professional Responsibility might require counsel in such a situation to withdraw from the representation altogether. See Developments in the Law - Class Actions, 89 HARV. L. REV. 1318, 1593 & n.67 (1976). The possibility of restructuring the class into sub-classes with independent representation, however, should not be ignored. See, e.g., Rental Car of N.H., Inc. v. Westinghouse Elec. Corp., 496 F. Supp. 373, 384 (D. Mass. 1980); see also Developments in the Law - Class Actions, supra, at 1593-94 (discussing sub-classing as a possible solution to the problem of conflict of interest within a class).
306. See Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U. L. REV. 337, 361 & n.100 (1978). The authors note some scholarly opinion to the effect that the ABA Code of Professional Responsibility might require counsel in such a situation to withdraw from the representation altogether. See Developments in the Law - Class Actions, 89 HARV. L. REV. 1318, 1593 & n.67 (1976). The possibility of restructuring the class into sub-classes with independent representation, however, should not be ignored. See, e.g., Rental Car of N.H., Inc. v. Westinghouse Elec. Corp., 496 F. Supp. 373, 384 (D. Mass. 1980); see also Developments in the Law - Class Actions, supra, at 1593-94 (discussing sub-classing as a possible solution to the problem of conflict of interest within a class).
307. If a defendant to an action for equitable relief voluntarily discontinues the activity that gave rise to the plaintiff's claim, the case will effectively be mooted. The Court has long recognized, however, that if, absent an adjudication on the merits, the defendant would be "free to return to his old ways," United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953), a federal court may nevertheless hear the technically moot case on its merits, unless "the defendant can demonstrate that 'there is no reasonable expectation that the wrong will be repeated,'" id. at 633 (quoting United States v. Aluminum Co. of Am., 148 F.2d 416, 448 (2d Cir. 1945)). Under a related exception, federal courts may hear seemingly moot cases that involve issues "capable of repetition, yet evading review." Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). This doctrine usually applies to cases in which a challenged action is likely to be repeated with respect to the plaintiff at bar and yet would continue to evade substantive judicial review by its cessation or expiration prior to litigation. See Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). A third doctrine, the "continuing impact" exception, allows federal courts to hear cases in which the injury that the plaintiff originally claimed has been redressed but the now-abated injury continues to harm the plaintiff. See David H. Donaldson, Jr., Comment, A Search for Principles of Mootness in the Federal Courts: Part One - The Continuing Impact Doctrines, 54 TEX. L. REV. 1289, 1308-19 (1976).
308. Cf. Corey C. Watson, Comment, Mootness and the Constitution, 86 NW. U. L. REV. 143, 165-66 (1991) (advocating retention of constitutional limits on mootness but recognizing the "need to adapt to the ever-changing forms of litigation . . . represented in the prudential and public law models").
309. Unlike Chief Justice Rehnquist and Dean Nichol, see Honig v. Doe, 484 U.S. 305, 331-32 (1988); Nichol, supra note 23, at 715-19, I do not confine my argument for a prudential mootness doctrine merely to cases mooted while pending before the United States Supreme Court. Rather, I argue that the prudential analysis should extend to cases mooted while pending in any federal court. Thus, a district court might conclude that the prechtsive value of a particular decision on the merits justifies proceeding even though the case is technically moot In contrast, the precedential value of a district court decision is minimal, see infra note 360, and therefore will seldom justify reaching the merits of a case that has been mooted white pending before a district court. Still, the district court must bear in mind that cases with a broad enough or deep enough impact are likely to be appealed and perhaps granted review before the Supreme Court.
310. See supra note 283.
311. See Fiss. supra note 14, at 29-30.
312. For a similar approach, see REDISH, supra note 20, at 105-06, which argues that courts should dismiss constitutional cases as moot only when the absence of a real controversy would render a decision "unenforceable and hypothetical" and the plaintiff's lack of a personal stake makes her an inadequate representative for similarly situated constitutional rightholders.
313. This inquiry forms an integral part of the test for ripeness. See CHEMERINSKY, supra note 4, § 2.4.3, at 107-09.
314. Typicality is one of the prerequisites for the maintenance of a class action. See FED. R. CIV. P. 23(a)(3).
315. Quality of counsel is a factor in determining whether named representatives can fairly and adequately protect the interests of absent class members. See FRIEDENTHAL, KANE & MILLER, supra note 98, § 16.2, at 730.
316. See United States v. Johnson, 319 U.S. 302, 304 (1943) (stating that a court may not "safely proceed" to judgment in the absence of a true adversarial posture between the parties).
317. See Sapp v. Renfroe, 511 F.2d 172, 174 (5th Cir. 1975).
318. See id.
319. See id.
320. See id.
321. See id. at 174-75.
322. The complaint apparently did not specifically request money damages. However, the Court of Appeals appears to have assumed that his request for "further relief as is just and proper" included a claim for money damages. Id. at 176 11.3.
323. See Sapp v. Renfroe, 372 F. Supp. 1193, 1193 (N.D. Ga. 1974).
324. See Sapp, 511 F. 2d at 174.
325. See Sapp, 372 F. Supp. at 1196.
326. See id.
327. Sapp, Sapp, 511 F.2d at 175.
328. See id. at 175.
329. See id.; supra note 283 (describing the exception).
330. See Sapp, 511 F.2d at 175-76.
331. See id. at 176.
332. See , supra note 283.
333. DeFunis v. Odegaard, 416 U.S. 312, 319 (1974).
334. Cf. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 633-34 (1943) (striking down a public school flag salute requirement because it compelled "affirmation of a belief").
335. Plaintiff's counsel, Elizabeth Rindskopf, was a prominent civil rights attorney in Atlanta. Three years earlier, she had argued and won cases in the United States Supreme Court. See Gooding v. Wilson, 405 U.S. 518, 518 (1972); Bell v. Burson, 402 U.S. 535, 535 (1971).
336. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 365-72 (1978).
337. Sapp v. Renfroe, 372 F. Supp. 1193, 1196 (N.D. Ga. 1974).
338. Cf. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) ("Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.").
339. See Sapp, 372 F. Supp. at 1195.
340. One might object that my proposal is improperly result-oriented. For my response, see pages 662-63 below.
341. See Northern Va. Women's Medical Ctr. v. Balch, 617 F.2d 1045, 1048 (4th Cir. 1980).
342. See id.
343. See id.
344. See id.
345. VA. CODE ANN. § 18.2-72 (Michie 1988).
346. See Balch, 617 F.2d at 1048.
347. See id. at 1049.
348. See id. at 1047.
349. See id. at 1049.
350. SCP id.
351. See id. at 1048.
352. Id.
353. See supra note 283.
354. United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953).
355. Id. at 633 (quoting United States v. Aluminum Co. of Am., 148 F.2d 416, 448 (zd Cir. 1945)).
356. See, e.g., Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975); DeFunis v. Odegaard, 416 U.S. 312, 316-17 (1974); WRIGHT, MILLER & COOPER, supra note 19, § 3533.7, at 354 & n.9.
357. See SUP. CT. R. 19.
358. Elsewhere I have argued that the same consideration should drive decisions about what standard of review to use for district court findings on so-called "mixed" questions of law and fact. See Lee, supra note 70, at 284-91.
359. 440 U.S. 625 (1979).
360. See id. at 628.
361. See id.
362. See id.
363. See id. at 628-29.
364. See id. at 629.
365. See id.
366. Section 1981 states: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981 (1988).
367. See Davis, 440 U.S. at 629.
368. See id. at 629-30.
369. See Davis v. County of Los Angeles, 566 F.2d 1334 (gth Cir. 1978).
370. See Davis, 440 U.S. at 627.
371. Id. at 631-32.
372. Id. at 633.
373. See id. at 637 (Powell, J., dissenting). Chief Justice Burger joined Justice Powell's dissent. Justice Stewart, joined by then-Justice Rehnquist, also dissented on the grounds that the case was not moot. See id. at 635 (Stewart, J., dissenting).
374. See id. at 642-43 (Powell, J., dissenting).
375. Id. at 643 (citing NLRB v. Raytheon Co., 398 U.S. 25 (1970); and NLRB v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271 (1938)).
376. At least four Justices would have struck down the remedy as overbroad: Chief Justice Burger and Justices Stewart, Powell, and Rehnquist. See Davis, 440 U.S. at 636 (Stewart, J., dissenting); id. at 647 n.12 (Powell, J., dissenting).
377. See Davis, 440 U.S. at 626 n.*.
378. See BICKEL, supra note 175, at 143-56.
379. See Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 13-16 (1964) (criticizing Bickel for tolerating unprincipled Court action in its exercise of certiorari jurisdiction); Herbert Wechsler, Book Review, 75 YALE L.J. 672, 674-76 (1966) (same).
380. See Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 13-16 (1964) (criticizing Bickel for tolerating unprincipled Court action in its exercise of certiorari jurisdiction); Herbert Wechsler, Book Review, 75 YALE L.J. 672, 674-76 (1966) (same).
381. Professor Redish shares this view. See REDISH, supra note 20, at 98.
382. This is all the more true now that virtually all of the Court's mandatory jurisdiction over appeals from the lower federal courts has been repealed. See Act of June 27, 1988, Pub. L. No. 100-352, 102 Stat. 662.
383. I am aware of the furor that dismissals of certiorari have stirred up within the Court from time to time. See generally Richard L. Revesz & Pamela S. Karlan, Nonmajority Rules and the Supreme Court, 136 U. PA. L. REV. 1067, 1082-95 (1988) (examining cases in which the Court explicitly addressed the conflict between the power to dismiss and the "Rule of Four"). Justice Douglas was particularly insistent that Justices who had originally voted to deny certiorari should not later vote to dismiss as improvidently granted over the dissents of those who originally voted to grant. See United States v. Shannon, 342 U.S. 288, 298 (1952) (Douglas, J., dissenting); see also James F. Blumstein, The Supreme Court's Jurisdiction - Reform Proposals, Discretionary Review, and Writ Dismissals, 26 VAND. L. REV. 895, 930 (1973) (arguing that dismissal of certiorari as improvidently granted is indefensible when four Justices dissent). Nonetheless, the Court has repeatedly dismissed certiorari over the dissents of four Justices. See, e.g., Triangle Improvement Council v. Ritchie, 402 U.S. 497 (1971) (per curiam); Hanner v. DeMarcus, 390 U.S. 736 (1968); NAACP v. Overstreet, 384 U.S. 118 (1966); Hammerstein v. Superior Court, 341 U.S. 491 (1951). Justice Stevens has taken the most tenable position on this subject: The decision to decide a constitutional question may be the most momentous decision that can be made in a case. Fundamental principles of constitutional adjudication counsel against premature consideration of constitutional questions and demand that such questions be presented in a context conducive to the most searching analysis possible. . . . If a majority is convinced after studying the case that its posture, record or presentation of issues makes it an unwise vehicle for exercising the 'gravest and most delicate' function that this Court is called upon to perform, the Rule of Four should not reach so far as to compel the majority to decide the case. New York v. Uplinger, 467 U.S. 246, 251 (1984) (Stevens, J., concurring). Although I would disavow any "dispute resolution" overtones in his discussion, I believe that allowing the majority to control the disposition is essential to the Court's fulfillment of its critical function under the "Public values" model of adjudication.
384. I am aware of the furor that dismissals of certiorari have stirred up within the Court from time to time. See generally Richard L. Revesz & Pamela S. Karlan, Nonmajority Rules and the Supreme Court, 136 U. PA. L. REV. 1067, 1082-95 (1988) (examining cases in which the Court explicitly addressed the conflict between the power to dismiss and the "Rule of Four"). Justice Douglas was particularly insistent that Justices who had originally voted to deny certiorari should not later vote to dismiss as improvidently granted over the dissents of those who originally voted to grant. See United States v. Shannon, 342 U.S. 288, 298 (1952) (Douglas, J., dissenting); see also James F. Blumstein, The Supreme Court's Jurisdiction - Reform Proposals, Discretionary Review, and Writ Dismissals, 26 VAND. L. REV. 895, 930 (1973) (arguing that dismissal of certiorari as improvidently granted is indefensible when four Justices dissent). Nonetheless, the Court has repeatedly dismissed certiorari over the dissents of four Justices. See, e.g., Triangle Improvement Council v. Ritchie, 402 U.S. 497 (1971) (per curiam); Hanner v. DeMarcus, 390 U.S. 736 (1968); NAACP v. Overstreet, 384 U.S. 118 (1966); Hammerstein v. Superior Court, 341 U.S. 491 (1951). Justice Stevens has taken the most tenable position on this subject: The decision to decide a constitutional question may be the most momentous decision that can be made in a case. Fundamental principles of constitutional adjudication counsel against premature consideration of constitutional questions and demand that such questions be presented in a context conducive to the most searching analysis possible. . . . If a majority is convinced after studying the case that its posture, record or presentation of issues makes it an unwise vehicle for exercising the 'gravest and most delicate' function that this Court is called upon to perform, the Rule of Four should not reach so far as to compel the majority to decide the case. New York v. Uplinger, 467 U.S. 246, 251 (1984) (Stevens, J., concurring). Although I would disavow any "dispute resolution" overtones in his discussion, I believe that allowing the majority to control the disposition is essential to the Court's fulfillment of its critical function under the "Public values" model of adjudication.
385. Because the statute represents official policy, the municipality can be sued directly. See Moncll v. Department of Social Servs., 436 U.S. 658, 691 (1978).
386. There is some authority for the proposition that, in the absence of an authoritative higher court ruling, a federal district court should follow the decisions of other federal district courts within the same state. See In re McKee, 416 F. Supp. 652, 654-55 (E.D. Ark. 1976). The weight of the authority, however, is to the contrary. See United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 572 (7th Cir. 1987); Starbuck v. City & County of San Francisco, 556 F.2d 450, 457 n.13 (gth Cir. 1977); State Farm Mut. Auto. Ins. Co. v. Bates, 542 F. Supp. 807, 816 (N.D. Ga. 1982).
387. These interests would not qualify as a "personal stake" under currently prevailing doctrine. See supra pp. 623-25.
388. Of course, this is not the only circumstance under which a federal court should decline to adjudicate a moot case, because adversariness between the parties is not the only prerequisite to a high quality decision. The absence of sufficiently high caliber counsel and the absence of a sufficiently concrete factual predicate are also reasons not to proceed to the merits of moot cases.
389. Convincing arguments have previously been made in favor of deconstitutionalizing standing and ripeness, but not on the ground of preserving a legislative-judicial colloquy. See supra note 25.
390. Cf. REDISH, supra note 20, at 75-85 (arguing that the challenge of federal courts law and substantive constitutional law is to reconcile representative democracy with the institution of judicial review).