14 Many Supreme Court Opinions Violate Our Constitution

The nonagenarian Ram Jethmalani is one of the oldest senior advocates still regularly practising and is also one of the highest-paid senior advocates in India at the apex or any other court. According to several briefing lawyers, it generally costs at least Rs.25 lakh to have Jethmalani’s name attached to the case file and for him to read it. Former finance minister P. Chidambaram charges in the range of Rs.6-7 lakh for one appearance before a bench of Supreme Court judges. Former Rajya Sabha member Fali S. Nariman, who by most accounts rarely takes up cases any more, charges between Rs.11 lakh and Rs.15 lakh per appearance in the Supreme Court. “(Nariman), like Chidambaram, is very choosy. He only accepts (a case) if it involves a challenging question of law. ” explained a Delhi advocate who has previously engaged Nariman and Chidambaram for clients. Former law minister Kapil Sibal charges at least Rs.8 lakh and up to Rs.15 lakh for one appearance at the Supreme Court. The rates are usually lowest in the Supreme Court on Mondays and Fridays—the so-called miscellaneous days when the apex court hears new matters before deciding whether to admit them for a proper hearing.

On Tuesdays, Wednesdays and Thursdays the Supreme Court hears arguments in cases, and fees for advocates such as Sibal, Singhvi and Salve can range between Rs.11 lakh and Rs.15 lakh. Various Delhi advocates told Legally India that preparation for appearing in the high court was similar to the preparation required for final arguments at the Supreme Court, given that the high court hears full and detailed arguments every day. Seniors, therefore, usually appear in the Delhi high court on any day for around the same fee which they charge to appear in the Supreme Court on a Tuesday, Wednesdays or Thursday—a non-miscellaneous day. Sometimes their high court fees are also intentionally set at a bar so high as to discourage all but the wealthiest from retaining them. Gopal Subramanium is one extreme example. But when Subramanium goes to the Delhi high court he charges Rs.11-16.5 lakh. And when he heads to tribunals, his rates are at least Rs.25 lakh per appearance.

Rajya Sabha member and Congress politician K.T.S. Tulsi, who is also a former additional solicitor general (ASG) of India, charges between Rs.5 lakh and Rs.6 lakh in the Supreme Court. But the sought-after criminal attorney is busier in the lower courts and the high court where he charges around Rs.9 lakh. Others charging in the range of Rs.5-6 lakh in the Supreme Court are Supreme Court Bar Association president Dushyant Dave, C.A. Sundaram, and former ASGs L. Nageswara Rao and Parag Tripathi. Dave and Sundaram are rarely seen in the Delhi high court by most accounts, but Rao charges in the range of Rs.3-4 lakh and Tripathi charges in the range of Rs.7-10 lakh for one Delhi high court hearing. There are also seniors in Delhi who appear almost exclusively in the high courts. The more popular ones among them charge in the range of Rs.3-5 lakh per appearance while the ones in nearly as high demand charge in the range of Rs.1-3 lakh.

Former ASG A.S. Chandhiok is the exception to the rule, with his fee ranging from Rs.6-7 lakh. Add to this the billings for losses incurred on unattended cases in Delhi during the outstation trip. One senior counsel half-joked that his colleagues did four “outstation matters” per month and are set for a month with income of Rs.1 crore. But then there are also cheap or free cases they argue, as several of the lawyers contacted for this story were quick to point out. Subramanium said he took up eight to nine pro bono briefs per month; K.K. Venugopal said he handled a large number of cases for free and charged government institutions less. Dave said that he argued three to five cases for free per week (particularly for individuals, members of the armed forces, civil services, teachers, doctors, non-governmental organizations, lawyers and their relatives). While seniors charge for “appearances” in courts, their role in these appearances, according to the Advocates Act 1961, is to argue for the litigant who has engaged them.

And yet, there is little the litigant or lawyer can do to ensure they honour their obligation, short of filing a bar council complaint against them if they don’t. A Delhi law firm advocate who engaged a senior in the Rs.5-7 lakh range for his firm’s client, on a retainer of Rs.18 lakh and an appearance fee of Rs.12 lakh, said: “He didn’t even get up to argue. It was bloody disappointing. One advocate explained the repetitive cases of not turning up at hearings in which a senior was paid to appear. He said that this senior was overburdened by Delhi high court cases. It is common for Delhi seniors to appear in between seven and 15 hearings in one day. But short of these measures, the litigant, who is usually asked to pay up 100% of the appearance fee in advance, can only hope for the best. When contacted, K.K. Venugopal, Gopal Subramanium, Abhishek Manu Singhvi, Dushyant Dave, Salman Khurshid, Shanti Bhushan, Balbir Singh, Gopal Jain, Harin Raval, Ravi Sikri, A.S. Chandhiok, Pinky Anand and Meet Malhotra confirmed that the published fees were either accurate or in the right ball park. Sidharth Luthra declined to confirm or deny the fees, while Dayan Krishnan declined to comment.

Even though we find no error in the bankruptcy court’s use of the Pro-Snax standard to resolve the attorney fee application in this case, I write separately to note that the Pro-Snax standard may be misguided. It appears to conflict with the language and legislative history of § 330, diverges from the decisions of other circuits, and has sown confusion in our circuit. The plain language of § 330 runs counter to Pro-Snax’s holding that only services that produce an actual benefit are compensable. Section 330 gives a bankruptcy court discretion to determine the amount of reasonable compensation. ] into account” a set of listed factors, including “whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered.” 11 U.S.C. § 330(a)(3)(C) (emphasis added). Lamie v. U.S. Trustee, 540 U.S. Section 330, then, explicitly contemplates compensation for attorneys whose services were reasonable when rendered but which ultimately may fail to produce an actual benefit.

“Litigation is a gamble, and a failed gamble can often produce a large net loss even if it was a good gamble when it was made.” In re Taxman Clothing Co., 49 F.3d 310, 313 (7th Cir. The legislative history of § 330 provides additional support for this reading. When Congress enacted § 330 in 1978, it relaxed the previously stringent standard bankruptcy courts applied in reviewing professional fee awards. ] (16th ed. 2014). Under the old regime, our court enforced a “strong policy . ” In re First Colonial Corp. Am., 544 F.2d 1291, 1299 (5th Cir. 1978), reprinted in 1978 U.S.C.C.A.N. ]; see Pub. L. No. 103-394, § 224, 108 Stat. The drafting history of those provisions suggests that Congress considered and specifically rejected an actual benefit test. The Senate version contained the seed of the eventual guidelines for reasonable compensation under § 330. See S. 540, 103d Cong. § 309 (as reported by S. Comm. The Bill reported out of the Senate Judiciary Committee differed in at least one important respect from the eventual Act, however.

].” Id. After adopting a floor amendment, however, the Senate added the words “at the time at which the service was rendered” after “beneficial.” See 140 Cong. Rec. 8383 (1994) (setting out amendment 1645 to S. 540, April 21, 1994); S. 540, 103d Cong. § 310 (as passed by Senate, April 26, 1994); see also Lamie, 540 U.S. Besides contravening the plain effect of § 330’s language, the actual benefit test of Pro-Snax has put our circuit in unnecessary conflict with our sister circuits. In light of the plain language of § 330(a)(4)(A), the Second, Third, and Ninth Circuits have rejected the actual benefit test required by Pro-Snax. ] estate.’” In re Smith, 317 F.3d 918, 926 (9th Cir. In re Xebec, 147 B.R. 518, 523 (B.A.P. 9th Cir. In addition, the Seventh Circuit has applied a similar rule, without specifically relying on the post-1994 guidelines. See In re Taxman Clothing Co., 49 F.3d at 314-16 (holding that the bankruptcy court abused its discretion in granting a fee award to an attorney whose preference action did not have a reasonable likelihood of benefiting the estate).

While Pro-Snax purported to consider the post-1994 guidelines of § 330(a), its lone citation for its actual benefit test, In re Melp, interpreted the pre-1994 version of § 330. See 179 B.R. 639 (quoting pre-1994 language). Indeed, the only other circuit precedents to apply an actual benefit requirement came to that conclusion prior to 1994 or based entirely on pre-1994 precedent for determining “reasonable compensation.” See In re Kohl, 95 F.3d 713, 714 (8th Cir. In re Lederman Enters., Inc., 997 F.2d 1321, 1323 (10th Cir. Grant v. George Schumann Tire & Battery Co., 908 F.2d 874, 883 (11th Cir. The Pro-Snax actual benefit test has led to confusion among the courts of our circuit. According to one Fifth Circuit bankruptcy practitioner, “the Pro-Snax decision is of constant discussion and concern.” William L. Medford, Further Evolution of Professional Compensation Under Pro-Snax the New and Improved Standard for Getting Paid, Am.

]ll courts interpreting Pro-Snax have reached the conclusion that some sort of retrospective analysis is required. Lower courts have adopted differing views of what type of retrospective analysis should be employed and have disagreed whether a prospective analysis may be considered in determining whether Pro-Snax is satisfied. In re Broughton Ltd. P’ship, 474 B.R. 206, 209-10 n.5 (Bankr. So, for example, one district court interpreted the Pro-Snax requirement as a threshold issue of entitlement to compensability under § 330(a)(1)(A), not a gloss on the guidelines for reasonable compensation under § 330(a)(3) and (a)(4). 9 (N.D. Tex. July 13, 2007). Yet Pro-Snax did not purport to alter the threshold compensability of services by interpreting “necessary” services to include only those that result in an actual benefit to the estate. ] was justifiably pursuing a legitimate, realizable goal of the fiduciary client.” 474 B.R. 213, 218. The splintered approaches to applying Pro-Snax underscore the difficulty of squaring that decision with the statute, and the practical importance of doing so. We note that application of the § 330(a) standard without Pro-Snax would probably lead to the same result in this case. The only fees that B & N adequately challenge on appeal—amending schedules and statements of financial affairs—were not reasonably likely to benefit the estate even when counsel rendered those services.

As we saw above, all legislative Powers granted by our Constitution are vested in Congress (Art. THIS is the “common law.” It is “law” in the sense that it originated with God’s Word; and from “time immemorial” has been applied in the Courts of English speaking countries. But this precedent is binding or persuasive only on courts.9 As precedent for judges to follow, it is never “the law of the land”! The ten categories of cases the Judicial Branch has authority to hear are enumerated at Art. III, §2, cl. 1, US Constit. So the purpose of this category is to authorize the Judicial Branch to enforce the Constitution – not re-write it! The opinions of which the convention lobby complains constitute violations of our Constitution. Federalist No. 81 (8th para), Hamilton shows Congress can impeach and remove from office federal judges who violate the Constitution. Congress is competent to decide whether federal judges have violated the Constitution!

Impeachment is their “check” on the Judicial Branch. 2. In Federalist No. 78 (6th para), Hamilton shows the Judicial Branch must rely on the Executive Branch to enforce its judgments. If the President, in the exercise of his independent judgment and mindful of his Oath to “preserve, protect and defend the Constitution,” determines that an opinion of a federal court is unconstitutional; his Duty is to refuse to enforce it. The President is also competent to decide whether federal judges have violated the Constitution! Refusing to enforce their unconstitutional judgments is his “check” on the Judicial Branch. 1 “Creature” is the word our Founders used – e.g., Federalist No. 33 (5th para) & Jefferson’s draft of The Kentucky Resolutions of 1798 (8th Resolution). 2 Art. VII, cl. 1, US Constit., sets forth ratification procedures for our Constitution. 4 Madison’s Journal of the Federal Convention of 1787 shows that on July 23, 1787, the Delegates discussed who was competent to ratify the proposed new Constitution. 5 It is said England doesn’t have a written constitution.

6 Acts of Congress which are not authorized by the enumerated powers are void. They are not made “in Pursuance” of the Constitution and have supremacy over nothing. 7 John Whitehead mentions the Biblical origin of the common law in The Second American Revolution. 8 Art. III, §2, cl.1 delegates to federal courts power to hear “Controversies between Citizens of different States.” Much of the litigation conducted in federal courts falls into this category. These lawsuits aren’t about the Constitution. 9 In Federalist No. 78 (next to last para), Hamilton discusses how judges are bound by “precedents” which define and point out their duty in the particular cases which come before them. 11 James Madison agreed that the purpose of the “arising under this Constitution” clause is to enable federal courts to enforce the Constitution. At the Virginia Ratifying convention on June 20, 1788, he explained the categories of cases federal courts have authority to hear. 12 This is proved in Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment. 14 Many Supreme Court opinions violate our Constitution. Wickard v. Filburn (1942), discussed HERE, is another of the most notorious.

The Bankruptcy Code of 1978 was intended to simplify the law and make it more functional. In most respects, it worked beautifully. The same cannot be said for the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Badly drafted is one of the kinder adjectives applied to it. Now history seems poised to repeat itself. On March 5, 2009, the House passed H.R. 1106, the Helping Families Save Their Homes Act. While the bill’s purposes are laudatory, its drafting is tortured. This article will walk you through the bankruptcy-related provisions of the bill section by section. The first thing that the bill does is introduce a definition of “qualified loan modification.” We later learn that this definition has almost nothing to do with modifying mortgages in bankruptcy and amounts to little more than legislative clutter. The next thing that the bill does is eliminate certain home mortgage debts from the chapter 13 debt limits. The bill eliminates any home mortgage or debt that was previously secured by a home which was foreclosed upon if the value of the home was less than the applicable debt limits.

1,010,650 in secured debts and still file for chapter 13. This is an interesting idea, but what problem is it solving? 1,010,650, wouldn’t it be easier just to raise the debt limits? The third substantive bankruptcy provision of the bill allows a claim to be denied if the debtor could have rescinded the loan based upon a truth in lending violation. While this is certainly a good result, how does this add anything to Sec. 502(b)(1) which allows a claim to be denied because it is unenforceable against the debtor? Finally, six pages into the bill, we get to the heart of the matter. Section 103 contains the major terms allowing modification of home mortgages in chapter 13. The section modifies Sec. 1322, which is the permissive list of provisions which may be included in a chapter 13 plan by adding four new subsections. The new subsections go on for nearly seven pages and contain a lot of material to digest.

Additionally, Section 105 modifies section 1325, which contains the requirements for confirmation of a plan. In order to be eligible for modification, proposed Sec. One possible answer is that the bill is intended to encourage lenders to make new loans, secure in the knowledge that they will not be subject to modification. However, since Congress can always modify the provision, it seems like this is a bit illusory. The other curious choice about eligibility is that a mortgage must be the subject of a foreclosure notice before it can be modified in a bankruptcy. To make things more complicated, there is a second eligibility provision a few pages later in proposed Sec. Why place the eligibility provisions in two different places? Cue up Avril Lavigne singing “Why do you have to make things so complicated? First, she can provide for payment of the secured claim as provided by Sec. 506(a)(1), that is, write the mortgage down to the value of the property. However, we learn in subsequent section 1322(i) that valuation under Sec.

If the property is sold during the life of the plan, the debtor must share any gain with the lender based upon a sliding scale. Second, a debtor may convert an adjustable rate loan into a fixed rate loan or make adjustments to the manner in which the adjustable rate is calculated. Is there still an applicable rate? Further, the use of a specified rate is undercut somewhat by allowing the addition of a “reasonable” risk premium. Wouldn’t it just be easier to use the Till standard for interest rates? Third, the debtor may reamortize the loan to provide for a term not to exceed 40 years from its origination. Proposed Sec. 1322(b)(11)(D) allows for a modified mortgage to be paid either directly to the lender or through the Chapter 13 trustee. If payments are made directly through the standing trustee, the trustee’s commission on the mortgage payments will be reduced to 4% or may be waived altogether if the debtor’s income is less than 150% of the poverty threshold. The new requirements for good faith modifications raise several issues.