A Justice Breyer Legacy: Erasing “Public Rights” From Lexicon Of Controlling Bankruptcy Law

Public rights? (photo by Marilyn Swanson) By: Donald L Swanson Justice Stephen G. Breyer is now retired from the U.S. Supreme Court, serving from August 3, 1994, to June 30, 2022. One of his legacies—and an exceedingly important one—is this: he has worked, successfully, to erase “public rights” from the lexicon of controlling bankruptcy law. What... Continue Reading →

Can § 363(m)’s Appeal Protections Be Waived? (Mall v. Transform)

Waived protections? (Photo by Marilyn Swanson) By: Donald L. Swanson Is the § 363(m) limit on appeal of a sale order “subject to waiver”? That’s the essential question before the U.S. Supreme Court in MOAC Mall Holdings LLC v. Transform Holdco LLC, Case No. 21-1270 (certiorari granted June 27, 2022). A deep circuit split exists on... Continue Reading →

Bankruptcy: Authority For A Federal Agency’s Constitutional Law? (Jarkesy v. SEC)

Public rights? (Photo by Marilyn Swanson) There’s a new U.S. Circuit Court opinion on a person’s right to a jury trial, when sued by the Securities and Exchange Commission before one of its administrative judges. The opinion is Jarkesy v. SEC, case No. 20-61007 (5th Cir., issued May 18, 2022). And guess what:  the most-cited legal authority in... Continue Reading →

Which Deadline Controls A Post-Judgment Motion: 28 Days (Civ.P. 59) Or 14 Days (Bankr.P. 9023)? (Roy v. Canadian Pacific)

Fed.R.Bankr.P. 9023 & Fed.R.Civ.P. 59 By: Donald L Swanson Imagine this: a U.S. District Court enters judgment in a case that’s “related to” a bankruptcy, and we want to file a motion for new trial or to amend the judgment.  So, which deadline applies to the motion: 28 days under Fed.R.Civ.P. 59(e); or14 days under Fed.R.Bankr.P.... Continue Reading →

U.S. Supreme Court: Flip-Flopping On Constitution’s Bankruptcy Clause

Flip-Flopping (photo by Marilyn Swanson) By: Donald L Swanson “The Congress shall have Power . . . To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States” (U.S. Const., Article I, §8, cl. 4). Once upon a long time ago, the U.S. Constitution’s Bankruptcy Clause, and its “uniform Laws” requirement,... Continue Reading →

Default Judgment In Bankruptcy, Based on “Implied Consent” Under Wellness International

Implied consent (photo by Marilyn Swanson) By: Donald L Swanson “Sharif contends that to the extent litigants may validly consent to adjudication by a bankruptcy court, such consent must be express. We disagree.” --U.S. Supreme Court in Wellness Int’l Network, Ltd. V. Sharif, 575 U.S. 665 (2015). The Supreme Court’s Wellness opinion adds the following: “The... Continue Reading →

Constitutionality of Third Party Releases (In re Millennium Lab)

By: Donald L Swanson Released water (photo by Marilyn Swanson) The opinion is In re Millennium Lab Holdings II, LLC, et al., 945 F.3d 126 (3d Cir. 2019).  On March 18, 2020, a Petition for writ of certiorari is filed from this opinion (Supreme Court Case No. 19-1152).  On May 26, 2020, the Supreme Court denies... 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 →

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 →

Mediation as “Entirely-Voluntary”: An Unexamined Value That’s Not Worth Keeping

By Donald L. Swanson The unexamined life is not worth living. --Plato And an unexamined value is not worth keeping.  Here’s an unexamined value in mediation that’s held by many people: --“Mediation is an entirely-voluntary process and should not be mandated.” This value is expressed in many ways, such as: --“I will not order parties to mediate”... Continue Reading →

Blog at WordPress.com.

Up ↑

%d bloggers like this: