On Bankruptcy and Mediation
By: Donald L Swanson I recently stumbled upon a fascinating report of a study on issues and trends called “Successful Mediation in International Relations.” This study looks at 79 international disputes (of which 44 are mediated) occurring during a 45 year period, between 1945 and 1989. The study makes multiple findings about these mediation efforts.... 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 “We, too, sympathize with the plight of the American farmer. Nevertheless, the solution proposed by the Ahlers majority is contrary to the Bankruptcy Code and a long line of case law.” -- U.S. Supreme Court in Norwest Bank Worthingtonb v. Ahlers, 485 U.S. 197, 209 (1988). The Problem The 1980s are... Continue Reading →
By Donald L. Swanson On June 23, 2017, Neil Gorsuch issues his first dissenting opinion as a Supreme Court Justice. The case is Perry v. Merit Systems Protection Board (Supreme Court Case No. 16-399). It's about statutory procedures for litigating Federal employee claims. The dissent by Justice Gorsuch illuminates a comparison of ideas with those... Continue Reading →
By: Donald L. Swanson Advertised Prices: “Haircuts $10 (we add a 3% surcharge if you pay by credit card)” “Sundaes $10 (with a $0.30 surcharge for credit card users)” State Law Violation The State of New York says these advertised prices violate New York General Business Law § 518, which provides: “No seller in any... Continue Reading →
By Donald L. Swanson Federal courts in the U.S. bankruptcy system have been struggling for decades with the extent and limits of bankruptcy court jurisdiction under the U.S. Constitution. The difficulty begins with Articles I and III of the U.S. Constitution: --Article I, Section 8, says: “The Congress shall have power to . . .... Continue Reading →
By Donald L. Swanson On May 21, 2017, the Financial Oversight and Management Board for Puerto Rico files its “Petition” initiating a proceeding under the Puerto Rico Oversight, Management, and Economic Stability Act. This proceeding is described as a pseudo-bankruptcy and is pending in the U.S. Bankruptcy Court for the District of Puerto Rico (Case... Continue Reading →
By Donald L. Swanson The case is Henson v. Santander Consumer USA Inc., U.S. Supreme Court Case No. 16-349, decided June 12, 2017. The case is on appeal from the Fourth Circuit Court of Appeals. The question is whether the Fair Debt Collection Practices Act applies when you “purchase a debt and then try to collect... Continue Reading →
NonconformityBy Donald L. Swanson There is "a kind of 'hostility to arbitration' that led Congress to enact" the Federal Arbitration Act. Kindred Nursing Centers v. Clark, U.S. Supreme Court Case No. 16-32 (decided May 15, 2017). Alternative dispute resolution processes ("ADR") include arbitration and mediation. Arbitration Congress passed the Federal Arbitration Act ("Arbitration Act") to... 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 →
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