On Bankruptcy and Mediation
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 →
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 →
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 →
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 →
By: Donald L. Swanson This article is a two-centuries history of Federal bankruptcy laws and economic conditions in the United States: from the Declaration of Independence in 1776 through the enactment of the current Bankruptcy Code in 1978. The Late 1700s In 1776, at the signing of the Declaration of Independence, thirteen colonies along the... Continue Reading →
By Donald L. Swanson "Public rights" doctrine enters the bankruptcy scene thirty five years ago in the four-Justice plurality opinion of Northern Pipeline v. Marathon Pipe Line, 458 U.S. 50 (1982). Three Justices in that case write an vigorous dissent to such a use of public rights doctrine, while two other Justices concur with the... Continue Reading →
“Hanging was a spectator sport in eighteenth-century England, and . . . the usual crowd turned out to watch [John Perrott] swing. They came to see off not a murderer, rapist, or highwayman, but rather a bankrupt.” E. Kadens, “The Last Bankrupt Hanged: Balancing Incentives in the Development of Bankruptcy Law,” 59 Duke L.J.... Continue Reading →
By Donald L. Swanson Have you ever wondered why Congress, when it adopted the Bankruptcy Code in 1978, limited the term of service for bankruptcy judges to fourteen years? --This term limitation, established in 28 U.S.C. Sec. 157(a)(1), assures that bankruptcy judges are serving as Article I judges under the U.S. Constitution. Life tenure would... Continue Reading →
By: Donald L. Swanson Etymology of the word “Bankrupt” According to the 1899 treatise linked below, the word “bankrupt” comes from the ancient days of Florence, Italy, when that city “occupied a prominent place among the commercial cities of the world.” The word “bankrupt” arises from the Latin words, “banca rotta,” which mean “broken bench”... Continue Reading →
By: Donald L. Swanson Original-source documents from antiquity are always fascinating! They provide a wealth of historical information and a wealth of insight into life in an earlier day. It’s mind-boggling, for example, to read the words of an author, who lived in an ancient time, writing about events of “ancient days” from his/her perspective-in-time.... Continue Reading →
MEDIATBANKRY 