Bankruptcy Code Meets Federal Arbitration Act — At U.S. Supreme Court? (GE v. Belton)

Uniformity (photo by Marilyn Swanson) By: Donald L Swanson Uh-oh!  The U.S. Supreme Court is requiring action on a certiorari petition that presents a Bankruptcy Code meets Federal Arbitration Act (“FAA”) question. Here is what’s happened: November 10, 2014:  SDNY Bankruptcy Judge, Hon. Robert D. Drain, refuses to allow arbitration of a Debtor’s request to hold... Continue Reading →

U.S. Solicitor General: A POWERFUL AND BIASED Advocate Before the U.S. Supreme Court on Bankruptcy Issues (Deutsche Bank v. McCormick Foundation)

Unbiased justice (photo by Marilyn Swanson) By: Donald L Swanson The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States [on whether to grant the Petition for Writ of Certiorari]. --From U.S. Supreme Court docket entry dated October 5, 2020, in Deutsche Bank v. McCormick Foundation... Continue Reading →

How Is Refusing A Turnover Request Not “Exercising Control Over”? (City of Chicago v. Fulton)

City of Chicago (Photo by Marilyn Swanson) By: Donald L Swanson So . . . I’m reading through the transcript of oral arguments at the U.S. Supreme Court on City of Chicago v. Fulton (Case No. 19-357) from October 13, 2020.  The first thing that jumps out at me, three pages in, is this: there is... Continue Reading →

U.S. Solicitor General: A Biased Advocate Before The U.S. Supreme Court On Bankruptcy Issues–Again (City of Chicago v. Fulton)

City of Chicago (Photo by Marilyn a Swanson) By: Donald L Swanson The case before the U.S. Supreme Court is City of Chicago v. Fulton, Case No. 19-357.  It is scheduled for oral argument on Tuesday, October 13, 2020. Facts The essential facts are these: City of Chicago impounds Fulton’s car to collect fines and penalties... Continue Reading →

Bankruptcy Laws v. Insolvency Laws: A Debtors’ Prison Distinction (Sturges v. Crowninshield)

Flying high (photo by Marilyn Swanson) By: Donald L Swanson Over the past two hundred and thirty years, the United States of America has been flying high on a massive economic expansion, punctuated periodically by times of economic stress or crisis. Bankruptcy laws have struggled to keep pace with the expansion and occasional turmoil. An earliest... Continue Reading →

Bankruptcy Laws Must (and do) Change With the Economy (Continental Illinois v. Chicago, Rock Island)

The tendency of legislation and of judicial interpretation has been uniformly in the direction of expanding the use of the bankruptcy power to meet the needs of an expanding economy.

U.S. Constitution’s “Bankruptcies” and “Contracts” Clauses: How They Work Together (In re Klein)

Our current bankruptcy system—with all its wisdom and shortcomings—is a culmination-to-date of the struggles and shortcomings and progress of generations past.

BAPCPA Nearly Backfires (Rose v. Portfolio — Cert. Denied)

A backfire (photo by Marilyn Swanson) By: Donald L Swanson “Backfire” = “to have the reverse of the desired or expected effect”  --from In 2005, the U.S. Congress decided to make life hard for individuals in bankruptcy.  Congress saw fraudulent intent in the minds of their destitute constituents—particularly those who had been living above the... Continue Reading →

A Supreme Court Civics Lesson: Separation of Powers And Appointments Clause For Puerto Rico

Map of Puerto Rico By: Donald L Swanson Mediation is playing a central role in Puerto Rico’s bankruptcy.  But mediating parties could not resolve an Appointments Clause dispute under the U.S. Constitution.  So, the U.S. Supreme Court recently resolved it for them. And the Supreme Court's decision is a welcome affirmation of the legitimacy of actions... Continue Reading →

The “Honest But Unfortunate Debtor”: An Old And Still-Evolving Concept

By: Donald L Swanson The phrase, “honest but unfortunate debtor," has been a part of bankruptcy laws for centuries. A bankruptcy treatise published in 1801, for example, says that bankruptcy laws in England and the U.S. "are meant to protect an honest but unfortunate trader." [Fn. 1] No one knows when or how the phrase began.... Continue Reading →

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