Equitable mootness prevents an appellate court from reaching the merits of an appeal. It is a judicially created, prudential doctrine unique to bankruptcy appeals. Specifically, the doctrine applies to appeals from orders confirming chapter 11 reorganization plans (but the circuits are even split on that point).

When a case litigated in court goes horribly wrong, there’s a clear remedy: appeal. But, what happens when your case goes not through court, but arbitration, and the proceedings are grossly unfair? You cannot appeal: that would seriously undermine the purposes of arbitration, to provide a fast resolution of a case at a cheaper cost than litigation. There is only one possible escape hatch: federal law provides that, in a limited set of very unfair situations, you can ask a court to vacate or modify the arbitrator’s award.

But if you bring this petition in federal court, another obstacle lurks in the background: the federal court’s subject-matter jurisdiction to even consider a petition to vacate. A new circuit split has popped up on that question.

When does “or” mean “and”? When does “or” simply mean “or”? And whose job is it to decide—a Federal court or Congress?