On Bankruptcy and Mediation
Title page of U.S. Supreme Court's 1803 opinion, Wood v. Owings By Donald L. Swanson “The committing an act of bankruptcy is, in law, considered as criminal. The bankrupt law is, therefore, in this respect, to be construed strictly.” This quotation is a punch line from the very first opinion by the U.S. Supreme Court on... Continue Reading →
Imprisoned in a Safari Park (photo by Marilyn Swanson) By: Donald L Swanson Bankruptcy laws must (and do) change. That’s because the U.S. economy is always changing: it has been in an ever-expanding mode—punctuated by recessions and depressions from time-to-time—throughout the course of its existence. One example of change is abolition of the debtors prison remedy.... Continue Reading →
Uniformity (photo by Marilyn Swanson) By: Donald L Swanson This is bizarre: Back in the 1980s, federal politicians in Alabama and North Carolina carve out a special deal for themselves (their bankruptcy funding is by taxpayers), while all other 48 states have a different deal (bankruptcy funding is by debtor fees); andThis disparity persists in varying... Continue Reading →
Failing to perform their function (photo by Marilyn Swanson) By: Donald L Swanson The doctrine of equitable mootness “is irreconcilable with” the “virtually unflagging obligation” of appellate courts “to exercise the jurisdiction given them.” --From Amicus Brief of 21 Bankruptcy Law Professors, in Hargreaves v. Nuverra Environmental Solutions Inc., Case No. 21-17, U.S. Supreme Court (Petition... Continue Reading →
College Sports (photo by Marilyn Swanson) By: Donald L Swanson On June 21, 2021, the U.S. Supreme Court orders the National Collegiate Athletic Association (“NCAA”) to stop limiting “education-related compensation or benefits” that schools provide to student athletes—any such limitation violates U.S. antitrust laws. [Fn. 1] This is not the first time the U.S. Supreme Court... Continue Reading →
Brunner's "certainty of hopelessness" test? (photo by Marilyn Swanson) By: Donald L Swanson “Petition DENIED” That’s the ruling of the U.S. Supreme Court, dated June 21, 2021, in McCoy v. United States (Case No. 20-886). The question in McCoy v. United States focuses on the test for discharging student loans in bankruptcy, under the “undue hardship”... Continue Reading →
Brunner's "certainty of hopelessness" test? (photo by Marilyn Swanson) By: Donald L Swanson One of the human tragedies of our time is this legal opinion: Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d Cir. 1987). Brunner creates a three-part test for discharging student loans in bankruptcy, under the “undue hardship” standard... Continue Reading →
By: Donald L Swanson Alabama and North Carolina are interesting places. But in the world of bankruptcy, Alabama and North Carolina are truly special—seriously!! These two states have carved out a bankruptcy world of their own—a world that’s different from every other state and all the territories in the Union! How they did it, is undoubtedly... Continue Reading →
Safe harbor (photo by Marilyn Swanson) By: Donald L Swanson In its unanimous Merit Management Group, LP v.FTI Consuting, Inc., opinion of February 27, 2018, the U.S. Supreme Court held (in the second-to-last sentence of the opinion): “Because the parties do not contend that either Valley View or Merit is a ‘financial institution’ or other covered... Continue Reading →
https://youtu.be/g1NZFVfJ98k Prof. Mann discussing "Bankruptcy and the U.S. Supreme Court" By: Donald L Swanson Ronald J. Mann is the “Albert E. Cinelli Enterprise Professor of Law” and co-director of the “Charles Evans Gerber Transactional Studies Center” at Columbia Law School. Prof. Mann is a nationally recognized scholar in bankruptcy and related areas of law. His prior... Continue Reading →
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