On Bankruptcy and Mediation
A disconnect? (photo by Marilyn Swanson) By Donald L. Swanson Every now and then, (i) something is blatantly obvious, but (ii) those in charge insist that what seems obvious is actually false. Such a disconnect breeds distrust. That’s precisely what exists in our bankruptcy system. The U.S. Constitution requires that bankruptcy laws be “uniform .... Continue Reading →
Flip-Flopping (photo by Marilyn Swanson) By: Donald L Swanson “The Congress shall have Power . . . To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States” (U.S. Const., Article I, §8, cl. 4). Once upon a long time ago, the U.S. Constitution’s Bankruptcy Clause, and its “uniform Laws” requirement,... Continue Reading →
Uniformity (photo by Marilyn Swanson) By: Donald L Swanson The United States of America is asking the U.S. Supreme Court to rule on the constitutionality of having U.S. Trustees in 88 judicial districts and Bankruptcy Administrators in 6 judicial districts. What follows is a summary of the U.S. Trustee’s explanation of the constitutionality issue in a... Continue Reading →
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 →
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