An Early History of Bankruptcy Statutes and Economic Conditions in the U.S.: 1776 to 1978

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 →

“Public Rights” Doctrine for Bankruptcy Court Jurisdiction, While Always Tenuous, Is Now Dead and Buried

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 →

The Story of “The Last Bankrupt Hanged”

  “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 →

Why Bankruptcy Judges Have a 14-Year Term, Instead of Life Tenure (From Justice White in Northern Pipeline v. Marathon)

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 →

A History of Ancient Bankruptcy Laws

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 →

1899 Treatise (First Edition) on U.S. Bankruptcy Law

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 →

Innovation by the Second Circuit: Creating a Mediation Pathway in the 1970s

By: Donald L. Swanson “The civil Appeals Management Plan (CAMP), now operating in the United States Court of Appeals for the Second Circuit, is an innovative set of reforms in the appellate process. . . . This is the first time the [mediation] procedure has been implemented systematically.” --1977 Report of the Federal Judicial Center,... Continue Reading →

The “Sporting Theory of Justice” and the Mediation Profession: Roscoe Pound

By: Donald L. Swanson The response of the [American Bar] Association to that 1976 re-examination of Pound’s criticism was immediate . . . One very important program was aimed at developing alternative methods for resolving disputes.             --Chief Justice Warren E. Burger, February 12, 1984. Roscoe Pound, a young man from Nebraska in 1906, became... Continue Reading →

How the Mediation Profession Began: from Chief Justice Warren E. Burger, 1984 (Part 1 of 2)

By: Donald L. Swanson In days-gone-by, civil lawsuits commonly end in a judgment after trial or an appeal. Today, civil lawsuits commonly end in a mediated settlement. On February 12, 1984, Chief Justice Warren E. Burger explains some early history for such change, to a meeting of the American Bar Association.  His speech begins like... Continue Reading →

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