Letter to the Editor

As the
attorney who argued the (unsuccessful) appeal on Continental Airlines (the Third
Circuit's seminal decision on equitable mootness), I wish to call to your attention
that the 2-1 panel decision in 75 F.3d was withdrawn when reargument <i>en banc</i>
was granted. Judge Alito wrote the dissent in the 7-6 <i>en banc</i> affirmance
of the district court’s dismissal of our appeal on the grounds of equitable
mootness.
</p><p> I think there are some implications to Judge Alito’s views and role
in the Continental case that transcend the bankruptcy issue. Even the majority
recognized that the merits of the appeal raised serious issues for review.
</p><p> The equitable mootness doctrine, I suggest, is fundamentally majoritarian—a
particular party is denied an otherwise valid (not constitutionally or statutorily
moot) right to appeal because the “greater good” of the treatment
of other creditors and proponents of the reorganization plan should not be disturbed.
What is particularly interesting in the <i>en banc</i> decision is that Judge
Alito assembled what I believe were the three most conservative and three most
liberal members of the Circuit to join the dissent. I suspect that the underlying
reason for that may have been that the three most conservative members were
disturbed by what the Delaware bankruptcy court was doing to creditor rights,
while the three most liberal members were disturbed by court-created doctrines
that narrow a party’s right to appeal. Nevertheless, it was the most ideological
judges on the court who supported the right to appeal, and the centrists who
took the pragmatic and majoritarian approach of countenancing possible injustice
because it might inconvenience the majority of the parties in interest. And
I think it was significant that the future Justice Alito was able to cobble
together a coalition of judges who rarely agreed on other issues on this matter
of fairness.

</p><p> Continental was my sole foray before Judge Alito, and I never had dealings
with him in practice. However, his fairness is highly respected in New Jersey
by many liberal and Democratic lawyers who have worked with him and appeared
before him.
</p><p>—Gary S. Jacobson<br>
Herold &amp; Haines, P.A.
</p>