On Bankruptcy and Mediation
By Donald L. Swanson The crazy-season is when millions of people incur easily-obtained student loans they can’t afford, for another semester of college. That time is nearly here, again, as a new school semester begins after the turn of the year. An even-crazier part is this: the U.S. Government guarantees payment of those unaffordable loans—which is... Continue Reading →
By: Donald L. Swanson The Haven Act is short for: “Honoring American Veterans in Extreme Need Act of 2019.” It is a newly-enacted law of the land. The Haven Act does a great and valuable thing for many of our military veterans: it allows middle class veterans to file Chapter 7 bankruptcy, instead of being stuck for... Continue Reading →
By: Donald L. Swanson “every creditor in the country should be lining up behind our side of the podium.” --Respondent’s counsel in Ritzen v. Jackson oral arguments at U.S. Supreme Court on 11/13/2019. Here’s a link to the transcript. On October 11, 2019, the Office of Solicitor General files an amicus brief in Ritzen v. Jackson... Continue Reading →
By: Donald L. Swanson Let’s try combining a couple empirical studies on unrelated matters to support the following proposition: --The “mediator’s proposal,” as a form of choice delegation, can help parties reach settlement. The proposal becomes a portal or entryway to decision. First Study: Delegating Difficult Choices The first study is titled, “Delegating Decisions: Recruiting Others... Continue Reading →
By: Donald L. Swanson “I’m very proud of the fact that, in four decades of practicing law, I’ve had only one client go to federal prison for lying on these bankruptcy schedules.” —Yours truly, emphasizing to clients the importance of accuracy and full disclosure in preparing bankruptcy schedules. One of the great challenges in representing... Continue Reading →
By: Donald L Swanson “The Congress shall have Power . . . To Establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” --Bankruptcies Clause in the U.S. Constitution, Art. I, Sec. 8, Cl. 4. Bankruptcy Exception to Arbitration -- A Constitutional Argument Try this argument on for size: The Constitution's... Continue Reading →
By: Donald L Swanson The case before the U.S. Supreme Court is Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (Case No. 18-1334). Oral arguments occurred on October 15, 2019. Here is a link to the official transcript. An Oddly Important Case This is an oddly important case: it’s resolution turns on... Continue Reading →
By: Donald L Swanson There is often a tension in mediation that goes something like this: Party of the first part says: We win on a technical legal issue—100% certainty! Party of the second part responds: You do not win on that issue—100% certainty! Party of the first part reacts: Do so! Party of the second... Continue Reading →
By: Donald L Swanson A bankruptcy bill on venue reform is sitting in Congress right now. The bill is H.R. 4421 – 116th Congress (2019-2020) and is titled, “Bankruptcy Venue Reform Act of 2019.” It aims to eradicate “forum shopping” abuses by eliminating forum selection options altogether. Opposed Hopefully, this bill goes nowhere and dies out.... Continue Reading →
By: Donald L Swanson “The Mediator is a nice guy, but he needed to pound harder on the other side.” —A disappointed litigator on why a mediation did not achieve settlement. This quote is a common post-mediation refrain. A Fundamental Error The quote contains a fundamental error. The error is this assumption: it is the mediator’s... Continue Reading →
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