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  • Writer's pictureKirk Hartley

Finally, Equitable Mootness May Be Dead, At Least in the Third Circuit?

Hurray, equitable mootness appears to be dead, at least in the 3rd Circuit.

What is it? In short form, it’s a (nonsensical) rationale for denial of the opportunity to appeal bankruptcy court decisions. Is it in the bankruptcy code? No. Then why does it exist? Because bankruptcy lawyers invented an outcome liked by some, and courts played along for some years, in “the interests of finality.” Lynch mobs also can produce finality.

In 2007-2009, various kind bankruptcy lawyers tried to help me wrap my mind around this invention of bankruptcy lawyers.  But I could not grasp it, and much preferred to note that a law student previously exposed the doctrine as unconstitutional.

Happily, in a recent ruling, the Third Circuit seems to have all but killed the doctrine, with a concurrence taking on the constitutional issues ignored in prior cases. Who says the doctrine probably is dead. The Weil Bankruptcy Blog, in an an August 3, 2015 post that also quotes Wood Allen on death. The post is well worth reading.

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