The Volokh Conspiracy

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Constitutional constraints on judicial power to consider cases


If you're interested in constitutional constraints on judicial power—related to justiciability, standing, and the like—check out yesterday's Oregon Supreme Court decision in Couey v. Atkins; likewise if you're interested in state constitutionalism. The Oregon Supreme Court has long been especially interested in independently interpreting its state constitution, and also tends to offer quite detailed and scholarly opinions on such matters. Here, the issue is whether the Oregon Constitution allows Oregon courts to consider issues that are moot but "that are capable of repetition, yet evading review." A 2004 Oregon Supreme Court decision (Yancy v. Shatter) said no, but Couey overrules that.

Naturally, this doesn't directly affect federal justiciability debates; the Oregon Supreme Court stresses that the relevant Oregon constitutional text differs from the federal constitutional text. Still, the case has some interesting discussion of the broader justiciability debates, of how to interpret state constitutions more broadly.