Puerto Rico is a “State” under U.S. Bankruptcy Law: Foreshadowing Bankruptcy-Type Relief for Other “States”?

By Donald L. Swanson "We must decide whether Puerto Rico is a “State” for purposes of this [bankruptcy] pre-emption provision. We hold that it is." --Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, U.S. Supreme Court Case No. 15-233 (Decided June 13, 2016). The Bankruptcy Code definition of "State" is contained in Sec. 101(52) and... Continue Reading →

Proactive Mediator + Settlement Counsel = How it Should be Done in Difficult Cases

By: Donald L. Swanson A typical lawsuit mediation involves a passive mediator dealing with litigation attorneys: --Passive mediators must wait to be engaged and then assist with disputes the parties identify; and --Litigation attorneys are fighting the case in court—they are active belligerents. So . . . the practical effect, in a typical lawsuit mediation, is... Continue Reading →

Omission of Mediators and Other “Masters” from Federal Bankruptcy Rules is the Result of Haste and Error?!

By: Donald L. Swanson Mediators and Other Special Masters in District Courts -- Rule 53 “Special Masters” can be appointed by U.S. District Courts to handle special circumstances, under Fed.R.Civ.P. 53. One type of special master under Rule 53 is a “Settlement Master” (aka “Mediator”). Special masters are used by District Courts, typically, in large... Continue Reading →

Combining the “Hip Pocket” Service Rule and Early Mediation

By: Donald L. Swanson The California Law Revision Commission is studying mediation confidentiality in the legal malpractice context.  Its Memorandum dated May 27, 2016, discusses ways to address confidentiality concerns. Minnesota's "Hip Pocket" Example An unusual “type of approach” it identifies is Minnesota’s “hip pocket” service rule.  Under this rule, the statute of limitations is... Continue Reading →

What’s With Puerto Rico and Its Relationship to the USA?

By Donald L. Swanson Have you ever wondered about the nature and history of Puerto Rico's relationship with the United States of America? After all, it’s located 1,600 miles beyond Miami and is separated from the U.S. mainland by the likes of Cuba, Bahamas, Turks and Caicos Islands, Haiti and Dominican Republic. So . .... Continue Reading →

Sanctions for Violating Mediation Confidentiality? No.

By: Donald L Swanson The Bankruptcy  Court opinion is In re Brizinova and Soshkin, 565 B.R. 488 (Bkrtcy. E.D.N.Y. 2017). The Trustee sues the debtors to recover assets for the bankruptcy estate. The Debtors file a motion to dismiss, in which their attorney, (i) makes statements the Trustee finds objectionable, and (ii) references information from a... Continue Reading →

Harsh & Public Punishments for Bankruptcy Crimes are Still in Fashion

  By: Donald L Swanson “And yet, despite the failure of the English experiment with harsh penalties, the desire to punish debtors has remained a part of the culture of bankruptcy to this day.” From Prof. Emily Kadens in “The Last Bankrupt Hanged.” The latest installment of harsh and publicly-visible punishments for bankruptcy crimes involves a... Continue Reading →

How Settling Up is Hard to Do in a Mediation on Appeal

By: Donald L. Swanson When . . . an appeal is from the district court’s affirmance of a bankruptcy court order, a remand to the bankruptcy court for approval of settlement requires coordination between three courts. --Cox v. Nostaw, Inc. (In re Central Illinois Energy Coop.), Case No. 16-1389 (7th Cir., Feb. 8, 2017). Background... Continue Reading →

“Public Rights” Doctrine for Bankruptcy Court Jurisdiction, While Always Tenuous, Is Now Dead and Buried

By Donald L. Swanson "Public rights" doctrine enters the bankruptcy scene thirty five years ago in the four-Justice plurality opinion of Northern Pipeline v. Marathon Pipe Line, 458 U.S. 50 (1982). Three Justices in that case write an vigorous dissent to such a use of public rights doctrine, while two other Justices concur with the... Continue Reading →

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