Legal Memorandum: Law of the Case Doctrine and Bankruptcy

Issue: Does the ‘law of the case’ doctrine govern the course of ongoing litigation in a bankruptcy context?

Under the law of the case doctrine, "a legal decision made at one stage of litigation . . . becomes the law of the case for future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time."  See N. River Ins. Co. v. Philadelphia Reinsurance Corp., 63 F.3d 160, 165 (2d Cir. 1995) (citing Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987)).  “[B]ecause there is a strong policy favoring finality the court exercises its underlying power to review earlier rulings ‘sparingly.’"  Id. at 165 (quoting McClain v. United States, 676 F.2d 915, 917 (2d Cir.) (citations omitted)).  The law of the case doctrine does not actually limit the power of a court, but "’merely expresses the practice of courts generally to refuse to reopen what has been decided.’"  Id. (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988); Messinger v. Anderson, 225 U.S. 436, 444 (1912) (Holmes, J.)); accord In re Johns-Manville Corp., 40 B.R. 219, 226 (S.D.N.Y. 1984) (similarly stating that the rule of “law of the case” is a discretionary one that “does not constitute a limitation on the court’s power but merely expresses the general practice of refusing to reopen what has been decided”) (quoting Slotkin v. Citizens Casualty Co., 614 F.2d 301, 312 (2d Cir.1979)).  The law of the case extends not only […]