Federal Arbitration Act is Superseded by U.S. Constitution’s “Uniform Laws on . . . Bankruptcies” Clause

By: Donald L. Swanson “The Congress shall have Power To . . . establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Constitution, Art. 1, Sec. 8 (emphasis added). Bankruptcy law is special, to begin with. There is no other area of law quite like it -- either legally... Continue Reading →

Screwing Up Our Bankruptcy World — Again? (Arbitration Petition at U.S. Supreme Court)

By: Donald L. Swanson The U.S. Supreme Court has a history of screwing-up our bankruptcy world. Examples go back to the 1982 debacle called Northern Pipeline v. Marathon Pipe Line, where the Supreme Court came within one vote (one vote!) of declaring the entire Bankruptcy Code unconstitutional. A more recent example, Stern v. Marshall in 2011,... Continue Reading →

U.S. Supreme Court Upholds Arbitration–Again! What’s the Effect on Bankruptcy? (Epic Systems v. Lewis)

By: Donald L. Swanson Last week, the U.S. Supreme Court made its latest pronouncement upholding arbitration: Epic Systems Corp. v. Lewis, U.S. Supreme Court Case No. 16-285 (issued May 21, 2018). The pronouncement follows a long line of precedents upholding and enforcing arbitration agreements, founded on the Federal Arbitration Act. This article explores the Epic Systems v. Lewis decision... Continue Reading →

Enforcing Arbitration in Bankruptcy: Second Circuit Puts Pressure on a Slam-Dunk Issue

By: Donald L. Swanson “[T]he Supreme Court has time and time again held: where parties have agreed to arbitration, . . . the agreement of the parties is to govern. There is no reason to think that, with time, the bankruptcy courts will not get there too.” --Collier on Bankruptcy, ¶ 9019-05 (15th Ed. 1998). Bankruptcy... Continue Reading →

Federal Arbitration Act Needs a Bankruptcy Exception

By Donald L. Swanson This article is in follow-up to a prior one titled, "Federal Arbitration Act vs. Stern v. Marshall: So . . . What's Fair About This?"  The point here is that we need a bankruptcy exception to the Federal Arbitration Act. Litigation in bankruptcy: Here's how the issue arises. A Chapter 7, 11,... Continue Reading →

Federal Arbitration Act vs. Stern v. Marshall: So . . . What’s Fair About This?

By Donald L. Swanson I’m irritated [not that anyone actually cares]. Here’s why. Federal Arbitration Act I’ve been reading some bankruptcy cases on requirements of the Federal Arbitration Act. These cases talk about submitting a bankruptcy dispute to arbitration based on an arbitration provision in the disputing parties’ pre-petition contract. Never mind that the dispute is... Continue Reading →

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