History of Bankruptcy: From the Torah, the Talmud and the Mishnah

By: Donald L. Swanson For starters, see my "Disclaimer" below. “The Torah is the Hebrew Bible,” consisting of the books of Genesis, Exodus, Leviticus, Numbers, Joshua, Psalms, Book of Ruth, etc.; and the Talmud “is the compilation of the historical rabbis ‘discussing’ or ‘debating’ what the Torah means.” [Fn. 1] The Mishnah is “an edited record”... Continue Reading →

How a Bankruptcy Court Refuses to Approve a Mediated Settlement Agreement

By: Donald L. Swanson One of the crucial rules of mediation is this: all pertinent parties need to be included in the mediation session. That’s because excluded parties can blow-up a mediated deal. Bankruptcy System In bankruptcy, interested parties are everywhere—and they can’t all be included in every mediation. That’s a problem. So, the Bankruptcy Code... Continue Reading →

Justices Scalia and Kennedy — Their Impact on Bankruptcy Court Authority

By Donald L. Swanson Two long-standing members of the U.S. Supreme Court—each served three decades—are recently departed from the Bench: Justice Antonin Scalia served from September 26, 1986, until his death on February 13, 2016; and Justice Anthony Kennedy served from February 18, 1988, until his retirement on July 31, 2018. Both of these Justices had... Continue Reading →

Practicing Attorneys (Not Sitting Judges) Serving as Mediators: An Innovation from the 1970s

By: Donald L Swanson The use of practicing attorneys -- instead of sitting judges --  to serve as mediators is an early-innovation from Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals. This innovation occurs, back in the 1970s, amid “wide disagreement” about the effectiveness of attorneys as mediators. Back then, Judge... Continue Reading →

The Constitution’s Bankruptcy Clause — A Struggle for Judicial Recognition

By: Donald L Swanson Bankruptcy laws in these United States have always struggled for acceptance by the judiciary. Judicial Restrictions on Congress’s Bankruptcy Power Federal courts, in many respects since 1800, have tried to restrict the bankruptcy power granted to Congress by the U.S. Constitution [Fn. 1]. For example: --In the 1800s and early 1900s, courts... Continue Reading →

Mediator Hostility is Effective?!

By: Donald L. Swanson What follows is confusing and disorienting . . . and a little disturbing. A 2017 academic article has this title: “The Surprising Effectiveness of Hostile Mediators” [Fn. 1]. And it reaches this conclusion: “As in prior studies, negotiators were more willing to reach agreement after interacting with a hostile mediator than a... Continue Reading →

Unbridled Credit-Bidding vs. Maximizing Value: U.S. Supreme Court and First Circuit Cases

By: Donald L. Swanson Imagine you’re at an auction and multiple parties are bidding on an item.  At a certain price, all bidders drop out except two.  These two keep bidding, and the price goes up. One bidder finally prevails—at a very high price. This happens.  It’s called competitive bidding at a fair auction.  This... Continue Reading →

Optimum Time For Mediation: At Close Of Pleadings & Before Contested Motions Are Filed

By: Donald L Swanson Mediation in civil litigation, here in the States, typically occurs as discovery winds down and as a trial date is in the offing. And, typically, mediation happens at the initiative of the parties—not by court referral. That’s how it’s done. Singapore Study But there are other ways to do it. In Singapore,... Continue Reading →

Fraudulent Transfer Claims — In Constitutional Limbo

By: Donald L. Swanson “we assume without deciding, that the fraudulent conveyance claims in this case are Stern claims.” [Fn. 1] From unanimous U.S. Supreme Court decision in Executive Benefits Insurance Agency v Arkison (Decided June 6, 2014). [Fn. 2] It’s a curious thing, this failure-to-decide the constitutional status of fraudulent transfer claims in bankruptcy. Here’s... Continue Reading →

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