Home > Journals > WMLR > Vol. 63 (2021-2022) > Iss. 1 (2021)
William & Mary Law Review
The idea that public defendants should receive any special treatment in the mootness context has been subject to intense criticism among commentators. Most notably, in the lead-up to the New York Rifle decision, Joseph Davis and Nicholas Reaves—two prominent First Amendment litigators from the Becket Fund for Religious Liberty—urged the Supreme Court to take the opportunity to correct the lower courts’ practice of blessing government abuse of the voluntary cessation doctrine. Indeed, the Supreme Court has never adopted a presumption in favor of government defendants such as the one applied by the Seventh Circuit in Killeen, and it failed to do so in New York Rifle. Rather, lower courts have created the presumption out of whole cloth, “invok[ing] purely prudential concerns about the supposed public-spiritedness of government litigants.” While this prudential, good-faith presumption would be anathema to Framers like James Madison who knew that government is composed of men and not angels, institutional concerns related to state sovereignty may justify the different treatment afforded to public defendants.
This Note attempts to fill a void in the literature by advocating for a presumption in favor of government defendants in voluntary cessation cases rooted more in structural, rather than merely prudential, justifications. In particular, the Note pulls from a more fully developed body of literature surrounding sovereign state standing to argue that the same principles of sovereignty that grant states broad standing to sue require courts to give more weight to exercises of state lawmaking authority to moot certain cases. However, this special treatment cannot exist in perpetuity. Once the state action becomes far enough removed from the sovereign lawmaking process—action by a university official, for instance—this structural justification no longer holds, and public litigants should be held to the same mootness standards as private defendants.