A dissent from Justice Jackson criticized the Court's growing use of summary orders to wipe away lower-court rulings after appeals become moot. If anything, she understated the problems.
I am still having trouble wrapping my mind around what exactly a Munsingwear Vacautr DOES. Could you create some hypotheticals (perhaps along the lines of Joyce Vance's Chicken explanation of conspiracy law) that show its use in a) situations where the equities demand it) and b) situations where the equities don't really?
What action in your example of A and B ends up mooting the appeal? When a higher court vacates the lower court decision, does that allow the parties to litigate again, thus preserving rights to appeal?
Maybe a fanciful hypothetical would be of some help.
a) Imagine a case where an employee claims that there is a substantive due process right that all employers must buy their employees birthday gifts. The employee sues his employer to enforce this right. The district court agrees that the right exists and enters a final judgment and permanent injunction ordering the employer to buy the employee a birthday gift every year. The employer appeals to the circuit court, which affirms. The employer then seeks certiorari, but while certiorari is pending, the employee dies or leaves the company. This moots the case and generally deprives courts of the authority to render a decision, since there is no live controversy. But, problematically here, due to the still-valid final judgment and permanent injunction, any of the other employees of this company can sue the employer for their birthday present. And due to the preclusive effects of the still-valid final judgment and permanent injunction, the employer is precluded from arguing in these subsequent cases that there is no substantive due process right to birthday presents (yet also is prevented, through no fault of her own, from obtaining Supreme Court review of the original ruling to correct the probably wrong ruling). Here, the equities would probably favor vacatur.
b) But consider the same case with variations. Suppose that it wasn't a final judgment and permanent injunction, but simply a preliminary injunction ordering the employer to provide a birthday gift to this employee if the birthday arises during the remaining pendency of the litigation. She again appeals and appeals, and the matter is mooted before Supreme Court review. However, a preliminary injunction has no preclusive effect, so the employer is not barred from relitigating the same issue if her other employees later try to sue and enforce their rights to a birthday gift. There, the lack of preclusive effect and impossibility of being bound to future harms means the equities likely wouldn't favor vacatur, even while the circuit opinion remains on the book as persuasive but non-binding authority. Or imagine the original case (permanent injunction), but the mootness was caused by the employer and employee settling the matter. Technically this particular employer might still be precluded from relitigating the same issue if her other employees later sue her, but this would not be a case where her ability to obtain final review of the matter was lost "through no fault of her own." So again, the equities likely wouldn't favor vacatur. Or imagine the original case, but rather than asserting a substantive due process right, the employee only claimed that his specific employment contract guaranteed him a birthday present. Even both the district and circuit courts agree and order the birthday present provided, and the case is then mooted before the employer can obtain final review, the employer probably can't show entitlement to the extraordinary remedy of vacatur since the narrow claim applied only to one specific employee and the employer won't really be bound in the future in other cases. So again, the equities likely wouldn't favor vacatur.
Examples are not hard to find: parties dispute voting rules and litigate. Appellate court rules that votes count. Supreme Court denies injunction and the election is over, loser concedes. Now cert petition is filed. Rather than just deny cert and let the ruling that the votes count stand, the Supreme Court instead GVRs under Munsingwear, and the fully litigated and argued appellate opinion disappears, giving no guidance to future officials about what to do the next time the same question comes up about whether to count particular votes.
We note in our paper that this does, in fact, require relitigation. This can be costly and deter future challenges. But it also eliminates the creation of a circuit split if a different court goes the other way. And if you believe in our data that the GVRs are one-way, then the opinions that throw out the votes in general stand as precedent, but the opinions that count the votes in general go away.
I am still having trouble wrapping my mind around what exactly a Munsingwear Vacautr DOES. Could you create some hypotheticals (perhaps along the lines of Joyce Vance's Chicken explanation of conspiracy law) that show its use in a) situations where the equities demand it) and b) situations where the equities don't really?
I’m with Susan Linehan, more examples please.
What action in your example of A and B ends up mooting the appeal? When a higher court vacates the lower court decision, does that allow the parties to litigate again, thus preserving rights to appeal?
Maybe a fanciful hypothetical would be of some help.
a) Imagine a case where an employee claims that there is a substantive due process right that all employers must buy their employees birthday gifts. The employee sues his employer to enforce this right. The district court agrees that the right exists and enters a final judgment and permanent injunction ordering the employer to buy the employee a birthday gift every year. The employer appeals to the circuit court, which affirms. The employer then seeks certiorari, but while certiorari is pending, the employee dies or leaves the company. This moots the case and generally deprives courts of the authority to render a decision, since there is no live controversy. But, problematically here, due to the still-valid final judgment and permanent injunction, any of the other employees of this company can sue the employer for their birthday present. And due to the preclusive effects of the still-valid final judgment and permanent injunction, the employer is precluded from arguing in these subsequent cases that there is no substantive due process right to birthday presents (yet also is prevented, through no fault of her own, from obtaining Supreme Court review of the original ruling to correct the probably wrong ruling). Here, the equities would probably favor vacatur.
b) But consider the same case with variations. Suppose that it wasn't a final judgment and permanent injunction, but simply a preliminary injunction ordering the employer to provide a birthday gift to this employee if the birthday arises during the remaining pendency of the litigation. She again appeals and appeals, and the matter is mooted before Supreme Court review. However, a preliminary injunction has no preclusive effect, so the employer is not barred from relitigating the same issue if her other employees later try to sue and enforce their rights to a birthday gift. There, the lack of preclusive effect and impossibility of being bound to future harms means the equities likely wouldn't favor vacatur, even while the circuit opinion remains on the book as persuasive but non-binding authority. Or imagine the original case (permanent injunction), but the mootness was caused by the employer and employee settling the matter. Technically this particular employer might still be precluded from relitigating the same issue if her other employees later sue her, but this would not be a case where her ability to obtain final review of the matter was lost "through no fault of her own." So again, the equities likely wouldn't favor vacatur. Or imagine the original case, but rather than asserting a substantive due process right, the employee only claimed that his specific employment contract guaranteed him a birthday present. Even both the district and circuit courts agree and order the birthday present provided, and the case is then mooted before the employer can obtain final review, the employer probably can't show entitlement to the extraordinary remedy of vacatur since the narrow claim applied only to one specific employee and the employer won't really be bound in the future in other cases. So again, the equities likely wouldn't favor vacatur.
Thank you for the additional scenarios and explanations. That helps me.
Examples are not hard to find: parties dispute voting rules and litigate. Appellate court rules that votes count. Supreme Court denies injunction and the election is over, loser concedes. Now cert petition is filed. Rather than just deny cert and let the ruling that the votes count stand, the Supreme Court instead GVRs under Munsingwear, and the fully litigated and argued appellate opinion disappears, giving no guidance to future officials about what to do the next time the same question comes up about whether to count particular votes.
We note in our paper that this does, in fact, require relitigation. This can be costly and deter future challenges. But it also eliminates the creation of a circuit split if a different court goes the other way. And if you believe in our data that the GVRs are one-way, then the opinions that throw out the votes in general stand as precedent, but the opinions that count the votes in general go away.