Scott MacGuidwin (Stanford Constitutional Law Center) has posted Mootness Doctrine at the Founding (NYU Journal of Law and Liberty (forthcoming 2026)) on SSRN. Here is the abstract:
Modern mootness doctrine lacks a strong originalist foundation. The traditional narrative describes mootness as part and parcel of the prohibition on “advisory opinions.” At the Founding and for generations before and after, the prohibition on advisory opinions targeted a narrower evil: prejudging disputes in ways that could bind judges’ hands in later, concrete cases. Judges were less concerned about whether a party maintained a cognizable legal interest throughout the lawsuit. British and early American practice reflects that judges refused extrajudicial advice likely to color future rulings but decided disputes presented in a concrete judicial posture, even when later events undercut practical relief. Throughout the late nineteenth and early twentieth centuries, the Court treated mootness chiefly as prudential, with flexible attention to recurring, unresolved issues. Only in the Warren Court era did mootness harden into a purported Article III command, mitigated by judge-made exceptions. Recovering the Founding-era understanding casts doubt on a constitutional requirement of a redressable legal injury persisting through all stages of litigation.
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