Theory of Justiciability

Article III justiciability requirement present a critical paradox. Most provisions of the Constitution have a readily discernible, generally agreed-upon purpose. The justiciability requirements, however, lack this quality. Scholars and courts have proposed many purposes for these requirements, but none has achieved general acceptance, and most make little sense in light of what justiciability actually does. This Article examines and criticizes alleged purposes of the justiciability requirements. After establishing that justiciability doctrines, as currently enforced, lack any clear purpose, the Article suggests that courts should reform them in light of such purposes as they can properly fulfill. Under such a reformed doctrine, courts would relax the rule against advisory opinions and greatly reform the doctrines of standing and mootness, so as to allow judicial resolution of legal questions when necessary to restrain unlawful government action. Such a reformed doctrine would be consistent with the limited judicial role in a democratic society. The limits of the judicial role are properly defined by the substance of judicial action, not by limits on the procedural circumstances in which it can take place.


A Theory of Justiciability
86 Tex. L. Rev. 73 (2007)

Abstract
	Article III justiciability requirement present a critical paradox. Most provisions of the Constitution have a readily discernible, generally agreed-upon purpose. The justiciability requirements, however, lack this quality. Scholars and courts have proposed many purposes for these requirements, but none has achieved general acceptance, and most make little sense in light of what justiciability actually does. This Article examines and criticizes alleged purposes of the justiciability requirements. After establishing that justiciability doctrines, as currently enforced, lack any clear purpose, the Article suggests that courts should reform them in light of such purposes as they can properly fulfill. Under such a reformed doctrine, courts would relax the rule against advisory opinions and greatly reform the doctrines of standing and mootness, so as to allow judicial resolution of legal questions when necessary to restrain unlawful government action. Such a reformed doctrine would be consistent with the limited judicial role in a democratic society. The limits of the judicial role are properly defined by the substance of judicial action, not by limits on the procedural circumstances in which it can take place.