Public Rights Doctrine — A Useless Tool in Bankruptcy

By Donald L. Swanson The U.S. Supreme Court’s “public rights” doctrine has been around for a long time. Yet, during the entire time of its existence, the Supreme Court, (i) has failed to explain the distinction between public rights and private rights, and (ii) has been inconsistent in applying that distinction. Unfortunately, our bankruptcy world has... Continue Reading →

Two New Justices on U.S. Supreme Court: Here’s Hoping for a Reset on Bankruptcy Court Authority

By: Donald L. Swanson Justices Scalia and Kennedy are gone from the U.S. Supreme Court and replaced by Justices Gorsuch and Kavanaugh.  Hopefully, this change provides a fresh perspective on bankruptcy law and a reset on bankruptcy court authority issues. Justices Scalia and Kennedy A reset is needed because Justices Scalia and Kennedy voted together to... Continue Reading →

Katz — The Supreme Court’s Most Important Bankruptcy Opinion

By: Donald L. Swanson The most important bankruptcy opinion from the U.S. Supreme Court, since enactment of the Bankruptcy Code in 1978, is this: --Central Virginia Community College v. Katz, 546 U.S. 356 (2006). Here’s why: Katz evaluates the U.S. Constitution’s Bankruptcy Clause against a conflicting part of the Constitution—i.e., the Eleventh Amendment; and Katz  determines... Continue Reading →

Renewing the Constitution’s “Bankruptcies” Clause for Bankruptcy Court Jurisdiction

By: Donald L Swanson Back in 1966, when the Bankruptcy Act of 1898 was newly-eligible (in human years) for Social Security, the U.S. Supreme Court issued a 7 to 2 majority opinion in Katchen v. Landy, 382 U.S. 323 (1966). The Katchen opinion is founded in the U.S. Constitution’s “Bankruptcies” clause and authorizes bankruptcy courts to... Continue Reading →

Ignoring Constitution’s “Bankruptcy Clause” at U.S. Supreme Court — A Historical Peculiarity

By: Donald L Swanson “Congress shall have Power”: “To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States”; and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” U.S. Constitution, Art. I, Sec. 8, cls. 4 & 18 (emphasis added). Any opinion... Continue Reading →

Justice Kennedy: Last of Supreme Court’s “Old Bankruptcy Guard”

By: Donald L. Swanson Tuesday, July 31, 2018, is the last day of Anthony Kennedy’s three-decades-long service as a Justice of the U.S. Supreme Court (since February 18, 1988). On bankruptcy issues, Justice Kennedy did not author many opinions of any sort (majority, concurring or dissent). Nevertheless, he has always been a part of what I... Continue Reading →

Who Says Bankruptcy Judges Don’t Have Article III Independence?!

By: Donald L Swanson Actually, the U.S. Supreme Court does . . . but they’re wrong. Here’s why. Some History Back in early 1980s, when the Bankruptcy Code was but a few years old, the U.S. Supreme Court struggled with bankruptcy court jurisdiction. --Northern Pipeline That struggle resulted in the Supreme Court's 1982 Northern Pipeline v.... Continue Reading →

Inequality at U.S. Supreme Court: Administrative Agencies v. Bankruptcy Courts (Lucia v. SEC)

By: Donald L. Swanson “Mom always liked you best.” --Smothers Brothers. I finished reading the U.S. Supreme Court’s Lucia v. SEC opinion (decided June 21, 2018). And I’m irritated: the entire situation is just-not-fair to bankruptcy courts and judges. --It’s obvious that the U.S. Supreme Court always liked judicial authority of administrative agencies, like the Securities... Continue Reading →

“Public Rights” Doctrine for Bankruptcy Court Jurisdiction is Dead and Buried: Supreme Court’s Oil States Opinion

By Donald L. Swanson “Marley was dead, to begin with . . . dead as a doornail.” Charles Dickens, A Christmas Carol About a year ago, I published this linked article declaring, “the ‘public rights’ doctrine for bankruptcy court jurisdiction, while always tenuous, in now dead and buried.” Now, I’m restating that declaration—this time based on... Continue Reading →

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