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Commercial Law World

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bankruptcy law, equitable mootness, Article III


Bankruptcy Law | Commercial Law | Law


Garnering debate, and sometimes harsh criticism, the doctrine of equitable mootness has been a focal point for academic debates among legal scholars for decades. "Unlike the constitutional doctrine of mootness, which bars consideration of appeals because no Article III case or controversy remains, the doctrine of equitable mootness is a pragmatic judicially-created principle, grounded in the notion that, with the passage of time after a judgment in equity and implementation of that judgment, effective relief on appeal becomes impractical, imprudent, and therefore inequitable. Applied principally in bankruptcy proceedings because of the equitable nature of bankruptcy judgments, equitable mootness is often invoked when it becomes impractical and imprudent 'to upset the plan of reorganization at this late date." Stated plainly, the reliance interests generated by a bankruptcy court's confirmation of a reorganization plan can be so strong that it becomes simply unfair to undue or alter it in any way.

The doctrine, however, is not without criticism. Famously, Hon. Frank Easterbrook for the Seventh Circuit banished the term equitable mootness. Noting that the term equitable mootness is misleading, Easterbrook wrote "[t]here is a big difference between inability to alter the outcome (real mootness) and unwillingness to alter the outcome (equitable mootness)." Likewise in 1994, Supreme Court Justice Samuel Alito, when he was then sitting on the United States Court of Appeals for the Third Circuit, questioned the doctrine, as it has no clear basis in law, and whether that was sufficient for the court to refuse "to entertain a live appeal over which [the court] indisputably possess[es] statutory jurisdiction and in which meaningful relief can be awarded."



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