In bankruptcy appeals, the judge-made prudential doctrine of “equitable mootness” allows appellate courts to dismiss an appeal as moot when granting the requested relief would undermine the finality of a substantially consummated plan of reorganization. As applied, however, the doctrine of equitable mootness is neither mootness nor equitable. On the former, equitable mootness is not mootness because even if a mootness-like jurisdictional exception is necessary to avoid “unscrambling the eggs” of a confirmed plan, in practice, equitable mootness has become the norm in bankruptcy appeals rather than the exception. On the latter, equitable mootness is not equitable because plan confirmation appeals are presented to appellate courts in a manner that systematically incentivizes them to find equitable mootness as often as possible. The result, in turn, is an appellate system that presently cannot guarantee appellate rights of the kind that litigants expect and that the constitutional bounds of bankruptcy jurisdiction require. In response, this Note proposes an amendment to Federal Rule of Bankruptcy Procedure 3020(e) that restores meaningful appellate review by limiting the bankruptcy court’s discretion to deny a stay pending appeal.
To read this Note, please click here: On Bankruptcy Appeals: Equitable Mootness as Gatekeeper to Plan Confirmation Review.
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