A 1909 Perspective On Bankruptcy Laws v. Similar State Laws (From Samuel Williston)

Food for thought? (Photo by Marilyn Swanson) By: Donald L Swanson Every now and then we get a glimpse into the past . . . that casts light on issues and events of today. One such glimpse is a Harvard Law Review article from 1909: “The Effect of a National Bankruptcy Law upon State Laws.”[Fn. 1].... Continue Reading →

An Olde Argument For Bankruptcy Laws (From 1755): A Lesson For Today

History: From Colonial Times (Photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy issues have been around for a very long time—for centuries, in fact. And bankruptcy issues have been discussed in these United States for the entire time of our existence--and before. Even in our Colonial times (prior to 1776), bankruptcy and insolvency issues were... Continue Reading →

Bankruptcy Laws v. Insolvency Laws: A Debtors’ Prison Distinction (Sturges v. Crowninshield)

Flying high (photo by Marilyn Swanson) By: Donald L Swanson Over the past two hundred and thirty years, the United States of America has been flying high on a massive economic expansion, punctuated periodically by times of economic stress or crisis. Bankruptcy laws have struggled to keep pace with the expansion and occasional turmoil. An earliest... Continue Reading →

First-Ever U.S. Bankruptcy Law — Enacted With A Pandemic’s Help

The Bankruptcy Act of 1800 By: Donald L Swanson 1800 is the year Congress adopts its first bankruptcy law under the "Bankruptcies" clause of the newly-ratified U.S. Constitution. Congress’s Bankruptcy Act of 1800 is modeled after England’s bankruptcy laws.  But there is a significant difference: the focus of England’s bankruptcy laws, back then, is exclusively on... Continue Reading →

History of Bankruptcy: From the Torah, the Talmud and the Mishnah

By: Donald L. Swanson For starters, see my "Disclaimer" below. “The Torah is the Hebrew Bible,” consisting of the books of Genesis, Exodus, Leviticus, Numbers, Joshua, Psalms, Book of Ruth, etc.; and the Talmud “is the compilation of the historical rabbis ‘discussing’ or ‘debating’ what the Torah means.” [Fn. 1] The Mishnah is “an edited record”... Continue Reading →

An Ancient Bankruptcy Law in China

By: Donald L. Swanson Centuries ago (during the 1200’s) the Mongols ruled China. Mongol law in China "provided for declarations of bankruptcy.”  Here are some details: —“no merchant or customer could declare bankruptcy more than twice as a way to avoid paying debts”; and —“On the third time he faced the possible punishment of execution.” [Fn.... Continue Reading →

ADR Act of 1998: Progress in Bankruptcy Courts

By:  Donald L. Swanson 2018 is the twenty-year anniversary of the Alternative Dispute Resolution Act of 1998 (codified at 28 U.S.C. § 651 et seq., the “ADR Act”). Bankruptcy Courts – Lagging Adopters but Making Progress Bankruptcy courts, generally, have been lagging adopters of mediation. And a few bankruptcy districts remain stubbornly opposed to complying... Continue Reading →

Random Selection of Cases for Mandatory Mediation = A “Spectacular Success” in the U.S. Circuit Courts of Appeals

By: Donald L. Swanson Back in the 1970s, Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals established an experimental mediation program called Civil Appeals Management Plan (“CAMP”) to deal with burgeoning caseloads. 1970s One CAMP feature, implemented for experiment and testing purposes, is the random selection of cases for mandatory mediation. ... Continue Reading →

Alternative Dispute Resolution Act of 1998: A Twenty-Year Anniversary and Impressive Results

By:  Donald L. Swanson 2018 marks the twenty-year anniversary of the Alternative Dispute Resolution Act of 1998 [codified at 28 U.S.C. § 651 et seq., the "ADR Act"]. Preamble The preamble to the ADR Act contains these findings on mediation: --“mediation . . . may have potential to reduce the large backlog of cases now... Continue Reading →

Four Decades of Rocking the Boat on Bankruptcy Court Authority: The U.S. Supreme Court

By: Donald L. Swanson The U.S. Supreme Court has, for four decades, been rocking the boat [that's Justice Blackmun's metaphor] on bankruptcy court authority. First, they almost kill the Code—coming within one vote of declaring the entire Bankruptcy Code unconstitutional. Then they limit and mess with it some more. And now, finally, it seems they are... Continue Reading →

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