Office of Solicitor General: A Biased and Conflicted Protector of Bankruptcy Laws (Ritzen v. Jackson Oral Arguments)

By: Donald L. Swanson “every creditor in the country should be lining up behind our side of the podium.” --Respondent’s counsel in Ritzen v. Jackson oral arguments at U.S. Supreme Court on 11/13/2019. Here’s a link to the transcript. On October 11, 2019, the Office of Solicitor General files an amicus brief in Ritzen v. Jackson... Continue Reading →

Highlights from Oral Arguments at U.S. Supreme Court on Constitutionality of Puerto Rico’s Oversight Board

By: Donald L Swanson The case before the U.S. Supreme Court is Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (Case No. 18-1334). Oral arguments occurred on October 15, 2019. Here is a link to the official transcript. An Oddly Important Case This is an oddly important case: it’s resolution turns on... Continue Reading →

Dividing Secured Claims from Under-Secured Claims: A History

By: Donald L Swanson There are things we take for granted in bankruptcy cases: like concepts of fresh start and of absolute priority and of adequate protection. But the source of such concepts is often murky. One of those take-for-granted things is this: the division of a secured claim into, (i) an allowed secured claim that... Continue Reading →

Look “Outside Bankruptcy”: A U.S. Supreme Court Standard for Resolving Bankruptcy Questions

By: Donald L. Swanson In 2019, the U.S. Supreme Court issued two opinions on bankruptcy-specific topics that identify a common legal standard. The standard is this: In deciding a question under the Bankruptcy Code, look to legal standards that apply “outside bankruptcy” for guidance Both opinions do just that.  Here’s how. FIRST OPINION The U.S. Supreme Court... Continue Reading →

Chapter 12: In re Knudsen Revisited, After a U.S. Supreme Court Ruling

By: Donald L. Swanson Congress adopted Chapter 12 in 1986. Then, in 2005, Congress added special tax provisions to Chapter 12 at § 1222(a)(2)(A). Those provisions made taxes arising from sales of farm assets dischargeable as general unsecured claims. In re Knudsen The IRS didn’t like this new law and worked to limit its effect. That... Continue Reading →

How the Bankruptcy Stay Passed Constitutional Muster — A Depression-Era Opinion that’s a Model for Today

By: Donald L Swanson The automatic stay is one of the basics of our bankruptcy laws. It’s a foundational rule for the entire bankruptcy system. But that hasn’t always been the case. In fact, the U.S. Supreme Court, in a Depression-era case, had to decide whether a bankruptcy stay is constitutionally permissible. And, fortunately, the Supreme... Continue Reading →

Who Gets the $4 Million Tax Refund in Bankruptcy: U.S. Supreme Court to Decide (Rodriguez v. FDIC)

By: Donald L. Swanson On June 28, 2019, the U.S. Supreme Court granted certiorari in the case of Rodriguez v. FDIC, (Supreme Court Case No. 18-1269). The case is about a $4 million tax refund received by a parent corporation in bankruptcy, based upon losses from one of its wholly owned subsidiaries.  The question is this:... Continue Reading →

The Bankruptcy Code Needs an Advocate for Its Interests at U.S. Supreme Court — The Solicitor General is Not Adequate

By: Donald L Swanson The Bankruptcy Code is in a precarious position.  It is a “transformative piece of legislation,” but it is without a strong agency in the Executive Branch to interpret it, enforce it, and promote its interests. [Fn. 1] Each Federal agency is part of the Executive Branch and has an area of responsibility... Continue Reading →

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