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19 Cardozo L. Rev. 2311 (1997-1998)
Bankruptcy Appeals and Equitable Mootness

handle is hein.journals/cdozo19 and id is 2335 raw text is: NOTES BANKRUPTCY APPEALS AND EQUITABLE MOOTNESS [T]hat the will is infinite and the execution confined, that the de- sire is boundless and the act a slave to limit.' William Shakespeare INTRODUCTION Article III of the United States Constitution requires that courts dismiss a case as moot when no case or controversy ex- ists.2 Over 100 years ago, the Supreme Court decided that dis- missal of a case without consideration of the merits is required when no effectual relief whatever can be fashioned.3 The concept that no effectual relief can be fashioned has been termed Article III mootness.4 In bankruptcy cases,' however, the doctrine of mootness has been extended to controversies where even though effectual relief could conceivably be fash- ioned, implementation of that relief would be inequitable.6 This liberal7 extension of the Article III case or controversy 1 WILLIAM SHAKESPEARE, Troilus & Cressida, in 6 THE WORKS OF WILLIAM SHAKESPEARE 77 act 3, sc. 2 (J. Ellis Burdick ed., 1909) 2 U.S. CONsT. art. III, § 2, cl. 1. Numerous cases have described this section of Article III as the case or controversy requirement. See, e.g., United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Lewis v. Continental Bank Corp., 494 U.S. 472 (1990); see also Susan Bandes, The Idea of a Case, 42 STAN. L. REV. 227, 246 (1990) (looking at mootness doctrine grounded in Article III); Evan Tsen Lee, Deconstitutionalizing Justi- ciability: The Example of Mootness, 105 HARV. L. REV. 603, 610-12 (1992) (tracing the origins of Article III and discussing modern applications). See generally Corey C. Watson, Comment, Mootness and the Constitution, 86 Nw. U. L. REV. 143 (1991). 3 Mills v. Green, 159 U.S. 651,653 (1895); see also discussion infra Part II. 4 It is notable that there is no mention of Article III in Mills v. Green. It has, how- ever, been recognized as authority for Article III mootness. See In re Continental Air- lines, 91 F.3d 553, 559 (3d Cir. 1996) (Continental Airlines III). But see Lee, supra note 2, at 611 (pointing out that the Supreme Court's first mention of Article III in connection with mootness was in Liner v. Jafco, Inc., 375 U.S. 301 (1964)). 5 Bankruptcy cases are cases that are decided under Title 11 of the United States Code, §§ 101-1330. 6 In re Chateaugay Corp., 988 F.2d 322, 325 (2d Cir. 1993). 7 When compared to Article III mootness and the requirement of Mills v. Green that 2311

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