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 →

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 →

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