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Equitable Mootness: Ignorance is Bliss and Unconstitutional

Even as other prudential limitations lose favor, equitable mootness continues to thrive. Its popularity derives from practical considerations: it protects third parties who have relied upon transactions approved by the bankruptcy court from the perceived unfairness wrought by reversal on appeal. In spite of its merit, equitable mootness lacks not only a statutory foundation but it also unconstitutionally extinguishes an appellant’s right to an adjudication on the merits by an Article III judge. Recent Supreme Court opinions have tied the constitutionality of today’s bankruptcy judge adjudications and appeals to the traditional boundaries of such matters at common law and under the 1800 Bankruptcy Act. Because bankruptcy judgments were historically subject to appellate review, eliminating the modern analog based solely upon prudence violates an appellant’s constitutional rights. Rather than continue to apply equitable mootness, courts should retreat to its origins, the stay of a judgment pending appeal. Expanding the stay pending appeal test to consider the raison d’etre for equitable mootness, the unfairness to third parties wrought by reversal, weighs this concern in a constitutional package.