All posts in Supreme Court

Top Ten Supreme Court Cases on Bankruptcy – This Friday at SFVBA

Email from Steve Fox

Dear All:

How many Supreme Court opinions that affect us bankruptcy practitioners can you name and discuss in court without notes?  If you are like most bankruptcy practitioners, the opinions of the Supreme Court too often seem to be mostly remembered in two ways: with uneasiness when the opinions are issued; and then later as some distant background as we forget what the Supremes held.

We have a really neat and intellectually important program on Friday, December 9th at 12:00 noon.  The MCLE is for 1 and ¼ hours.  Jon Hayes, David Gould and Alan M. Ahart (ret.) will discuss, argue, disagree and agree, analyze, tear apart and put back together, bring up fun trivia along the way, all while bringing to our attention why the Supreme Court matters to bankruptcy practitioners and how we can use their opinions to assist our clients.  Given that Jon Hayes prepared the materials, they have a very high quality. Read more…

Preview of Upcoming Supreme Court Term

This is a preview of the upcoming term from the Georgetown Supreme Court Institute.  There is only one bankruptcy case on the docket so far, Czyzewski v. Jevic Holding Corporation (15-649)

According to the preview:

Question Presented: Whether a bankruptcy court may authorize the distribution of settlement proceeds in a manner that violates the statutory priority scheme.

Summary: The Bankruptcy Code prioritizes the order in which a debtor in bankruptcy under Chapter (Ch.) 11 or Ch. 7 must pay the claims of its creditors. Section 507 identifies unsecured claims entitled to priority, and specifies the order of payment.  Higher-priority claims must be paid in full before lower-priority claims are paid anything.  The question in this case is whether a bankruptcy court may order a structured dismissal of a Ch. 11 case that settles claims against the estate and pays settlement proceeds to creditors in violation of the Code’s priority scheme. Read more…

Husky v. Ritz – the Supreme Court Really Needs Some Bankruptcy Basics

I get calls all the time from people who say that so and so owes them money and just filed bankruptcy.  I ask, “Did the debtor lie and cheat and steal when you loaned him the money or sold him the goods?”  No – well then I would take your files and pitch them in the ocean.  You are out of luck.  The debtor gets his fresh start.

Now I can say, “any chance the debtor hid some assets or transferred something he owned to some relative?”  If so, the Supreme Court says that MIGHT form the basis for declaring the debt to you to be non dischargeable.  If the debtor really did that I usually tell the client, we can ask the court to deny his discharge altogether under section 727 but then you are in line with all other creditors whose debts are likewise not discharged.  But now we can go after the debtor alone under 523(a)(2) and have the debt discharged only as to us, not everyone else.    The Supreme Court really had no idea of this.   Read more…

Kudos to Erwin Chemerinsky for Supporting Justice Ginsburg’s Comments on Trump

In the LA Times this morning.

Uninformed punditry to the contrary, her comments violated no law or ethical rule. The judicial code of ethics says that judges are not to endorse or oppose candidates for elected office. These provisions, however, do not apply to Supreme Court justices. (Whether that exception is reasonable is a separate question.)

It’s true that, conventionally, justices steer clear of electoral politics. But that wasn’t always the case:  In 1800, the members of the Supreme Court openly campaigned for the reelection of John Adams.  This convention of silence, moreover, is inconsistent with one of the most basic underlying principles of the 1st Amendment: that more speech is better in a democracy because it leads to a better-informed population.

Scotusblog Stat Pack Available

If you like data and charts, you will love this.  You can access the 2015 stat pack here.  All 50 pages thank you.  Some pretty fun stuff. The 9th Circuit was affirmed 2 times in 11 cases (plus one 4-4 ruling). Clarence Thomas wrote the most opinions by far – 39.  The next highest was Alito with 19.  Thomas wrote 18 dissenting opinions, the next highest was Sotomayor with 8.    Roberts wrote only six majority opinions, Thomas seven.  The high for majority opinions?  Kennedy with nine. There were 76 total cases resolved although 13 of those were “summary reversals.”  So 63 cases, of which 4 were “decided” 4-4 meaning the lower court ruling stands.   Read more…

Muhammad Ali – Clay v. United States

I love history but not 1,000 page history books.  The last few years I have been buying audio books and listening to them in my car.  I bought the Carl Sandburg one volume history of Abraham Lincoln.  It is about 20 cds and I am still only half way through although I have been listening for probably a year now.

Anyway, today on SCOTUS blog, there is a great – and short – history of Muhammad Ali’s refusal to join the army and how it got to the Supreme Court.  I lived through it but did not know more than a small percent of the details – especially the details that were not in the movie Ali with Will Smith.  The link is here.   The link includes a link to the Supreme Court’s opinion and an audio link to the Court’s oral argument.  Apparently the conundrum was factual; was Ali refusing to fight this war or refusing to fight all wars?   The article includes a discussion about Ali’s fights to get his boxing license back in New York.  Highly recommended.

Why Not Go With Eight Members on the Supreme Court?

I had the huge privilege of attending the Central District Judicial Conference annual meeting in Ojai last weekend.  I took a bunch of notes and have some interesting stuff to write about.  I will put it all into a couple of blog posts over the next few days.

The first program was called “Panel Discussion: Top Supreme Court Cases to Watch” featuring Deanell Tacha, Duane and Kelly Roberts Dean and Professor of Law at Pepperdine Law School, and Professors Robert J. Pushaw and Barry P. McDonald – all three obvious constitutional pros with the ability to talk constitutional law talk in plain English.  The cases they discussed will be a separate blog.   Read more…

Some Thoughts on Justice Antonin Scalia

This is a short article I wrote which was published on February 29, 2016 on the NACTT Academy website “Consider Chapter 13.”

Thoughts on Justice Antonin Scalia
by M. Jonathan Hayes
February 22, 2016

Antonin Scalia is a personal hero of mine.  He was not without flaws of course and I suspect that he and I would be on the opposite side of most issues, once the voting began.  I didn’t care for his taunting manner and his drive to get a laugh at the expense of attorneys arguing before the Supreme Court.  His dissents were sometimes embarrassing.  He sometimes all but called his colleagues morons.   I agree with other commentators that the predictability of his views lessened his influence with his colleagues.   Read more…

Learning from Antonin Scalia – The Story of the “Hapless Law Clerk”

I found this story by Justice Scalia’s former law clerk John Duffy on Scotusblog.  It discusses Scalia’s concurring opinion in Conroy v. Aniskoff (1993).  It contains a great lesson about the usefulness of legislative history.  The full article is here.

It seems there is a federal law somewhere that says that if a governmental agency forecloses on property, the redemption period (assuming there is one I guess), is extended or “tolled” by the amount of time the debtor is in the military.  Sounds good so far.  Who could be against that?  Some guy gets drafted or volunteers and schleps off to somewhere to defend freedom, he should get more time to redeem property being sold because he didn’t pay some tax.  Does the additional time however apply to a career military man?  In that case, the tolling period might be 30 years?  He just doesn’t have to pay his taxes until he retires?  That’s what happened in Conroy.  The Supreme Court ruled – 9-0 – that the code says what it says, that if it doesn’t make much sense, tell Congress.  The majority said that the language is clear – yes it’s tolled for whatever time the man is in the military.  The opinion then went on to explain that the ruling is justified by the legislative history.

Scalia separately concurred, taking the majority to task and giving us a nice lesson to remember, to wit – to hell with legislative history.    He writes, Read more…

Writ of Certiorari Sought in Student Loan Case

Tetzlaff v. Educational Credit Management Corp.

Pending petition

Docket No. Op. Below Argument Opinion Vote Author Term
15-485 7th Cir. TBD TBD TBD TBD TBD

Issue: (1) Whether the Brunner test is the proper standard for determining “undue hardship” for the discharge of student loan debt; and (2) whether, if the Brunner test is the proper standard, that test should be (i) modified to eliminate the requirement that a debtor in the past have “made a good faith effort to repay the loans,” and (ii) clarified to establish that a debtor need only prove by a preponderance of the evidence that his inability to pay is “ likely to persist for a significant portion of the repayment period,” not that there is a “certainty of hopelessness.”

Date Proceedings and Orders
Oct 15 2015 Petition for a writ of certiorari filed. (Response due November 16, 2015)
Nov 10 2015 Order extending time to file response to petition to and including December 16, 2015.