Ben Johnson, University of Florida Levin College of Law, has posted A History of Vacatur:
Vacatur, a seemingly routine appellate tool, has evolved into one of the Supreme Court's most potent instruments for declaring law. This article offers the first comprehensive historical account of vacatur, tracing its roots from English and early American practice through its twentieth-century transformations to its contemporary uses. Historically, courts used vacatur to manage dockets, correct procedural irregularities, or enforce reversals on the merits. Modern usage has departed markedly from these roots. The Court now frequently employs vacatur to declare binding legal rules without issuing judgments, effectively circumventing traditional limits on judicial power. Taking seriously the Court's own insistence on history as a guide to judicial authority, this article illuminates the growing tension between the Court's practice and its constitutional and statutory limits.
--Dan Ernst
