On Bankruptcy and Mediation
By Donald L. Swanson "We must decide whether Puerto Rico is a “State” for purposes of this [bankruptcy] pre-emption provision. We hold that it is." --Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, U.S. Supreme Court Case No. 15-233 (Decided June 13, 2016). The Bankruptcy Code definition of "State" is contained in Sec. 101(52) and... Continue Reading →
By: Donald L. Swanson Mediators and Other Special Masters in District Courts -- Rule 53 “Special Masters” can be appointed by U.S. District Courts to handle special circumstances, under Fed.R.Civ.P. 53. One type of special master under Rule 53 is a “Settlement Master” (aka “Mediator”). Special masters are used by District Courts, typically, in large... Continue Reading →
By Donald L. Swanson Have you ever wondered about the nature and history of Puerto Rico's relationship with the United States of America? After all, it’s located 1,600 miles beyond Miami and is separated from the U.S. mainland by the likes of Cuba, Bahamas, Turks and Caicos Islands, Haiti and Dominican Republic. So . .... Continue Reading →
By: Donald L Swanson “And yet, despite the failure of the English experiment with harsh penalties, the desire to punish debtors has remained a part of the culture of bankruptcy to this day.” From Prof. Emily Kadens in “The Last Bankrupt Hanged.” The latest installment of harsh and publicly-visible punishments for bankruptcy crimes involves a... Continue Reading →
By: Donald L. Swanson When . . . an appeal is from the district court’s affirmance of a bankruptcy court order, a remand to the bankruptcy court for approval of settlement requires coordination between three courts. --Cox v. Nostaw, Inc. (In re Central Illinois Energy Coop.), Case No. 16-1389 (7th Cir., Feb. 8, 2017). Background... 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 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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