The Supreme Court Disagreed

India supports unity in diversity having wide scope of cultural values and religious aspects. As we go from north to south on the map of India, we observe the large variation in the lifestyle of people including their eating habits, religious beliefs, daily activities and various other factors. As the change is noticed across the distance, needs for change in law also exists. Same is true with the working style and practices. Every state and city has its own color and flair. Let us take example of Delhi and Maharashtra. Delhi being the capital of India, and having Supreme Court located, is known to be of highest authority in judicial sector Law firms in Delhi have got expert team of advocates who are highly professional. Law firms in Delhi are also known for their ideal working style which suits in every situation in almost every part of the country. Law firms in Delhi are a balance of both knowledge and presentable setup. So we just studied that every state and district has its own strategies and requirement but nine thing that is common between all is a hard working attitude and a result oriented mindset. We can feel the loyalty and dedication in all of them being a part of India. This is the universal pattern which keeps the Indians binding with an invisible thread. The gradual advancement in legal profession has made India the strongest nation ever which is now ready to compete with any nation in true sense. We Indian no longer remained deprived of justice. We can seek justice independently as being a proud Indian. We are looking forward for its advancement in every field just like it demonstrated its development in jurisdiction sector.

I was also impressed by the extent that the mock advocates understood the underpinnings of their opponent’s expert’s opinions. In one case, an expert had relied on a proprietary report. The advocate effectively challenged the fact that the expert had no way to verify the conclusions reached by the analysts who prepared the report. He referred to it as a black box in his cross and closing, a term that was echoed by the judge in her ruling. It is hard to do a practice skills presentation with tight deadlines. I found this one to be very realistic (because it was based on a real case) and a good teaching exercise. Every year the Commercial Law League of America awards the Lawrence P. King Award for Excellence in Bankruptcy to a distinguished judge, academic or practitioner. This year the award went to Prof. Jay Westbrook of the University of Texas School of Law. Prof. Westbrook has been one of the leading bankruptcy academics in the country for many decades. His ground breaking empirical work (with Teresa Sullivan and Elizabeth Warren) has helped us to better understand bankruptcy and the people who file bankruptcy.

He is one of the bright lights of international insolvency law. He has also worked to accomplish venue reform, helping to draft a bill that was introduced in the Senate by two unlikely co-sponsors: John Cornyn of Texas and Elizabeth Warren of Massachusetts. He was introduced by his former research assistant Eric Van Horn and a video message from his former collaborator U.S. Sen. Elizabeth Warren. I recorded both Sen. Warren’s introduction and Prof. Westbrook’s acceptance on my phone. I apologize for the quality. This is the first time I have attempted to incorporate video into a blog article. In the awards category, three presenters made pitches for why each of the Court’s decisions was the best. Craig Goldblatt and (I think ) Danielle Spinelli from Wilmer Hale made pitches for Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752 (2018) and Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883 (2018) explaining why each of these decisions faithfully followed the text of the Code. Prof. Troy McKenzie of New York University School of Law argued for U.S. Bank Nat’l Ass’n v. Vill.

Lakeridge, LLC, 138 S. Ct. 960 (2018). Village at Lakeridge received the highest votes from the audience although I personally voted for Appling. Prof. Pottow sought to provide some context to the decisions in his presentation titled Is Functionalism Back? The Professor stated that the Supreme Court has a hard time getting bankruptcy. He explained that this makes sense since they are generalists who must deal with many different areas of the law. However, it means that they often have a poor idea of what is going on in the trenches. This feeds into the formalism vs. Formalism looks at the words of the text while functionalism looks at how a given interpretation will work in practice. This leads to the three cases that the Court decided last term. I did not describe them above because I wanted to do so in the context of Prof. Pottow’s talk. The first case up was Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752 (2018), a case about a client who not only stiffed his lawyers, but lied to them to get them to continue representing him.

100,000 and would use it to bring their bill current. 59,000 and the debtor apparently did not intend to pay his lawyers. He filed bankruptcy after they sued him. The lawyers argued that their ex-client had induced them to keep doing work for them by lying about the tax refund. The issue before the Supreme Court was whether Appling’s verbal statements about the refund were statements “respecting” the debtor’s financial condition. Any claim based on a lie “respecting” the debtor’s financial condition must be in writing. The lawyers said that a statement about one asset was not made “respecting” the debtor’s financial condition. The Supreme Court disagreed. In making its ruling, the Court started with a formal analysis–what does the dictionary say that “respecting” means. Then it went to an historical analysis–how were these claims treated under the Bankruptcy Act. Finally, the Court looked at the consequences of a rule requiring that a statement of financial condition must refer to more than one asset. What if the debtor makes one statement listing his assets and a separate statement concerning his liabilities?

He has not made a single statement concerning his financial condition. The definition urged by the lawyers would be difficult to apply and would lead to bizarre results. Only the third rationale reflected functionalism. Prof. Pottow likened it to the dessert of the opinion, but added that at least Justice Thomas didn’t dissent. The Court also discussed legislative history, specifically a House Report. The Supreme Court had previously relied on this same report in Field v. Mans, 116 S.Ct. 437 (1995). This was one step too far for Justices Gorsuch, Thomas and Alito who did not join this portion of the opinion. Next up was U.S. Bank Nat’l Ass’n v. Vill. Lakeridge, LLC, 138 S. Ct. 960 (2018). According to Prof. Pottow, this was not really a bankruptcy case at all because it dealt with the standard of review on appeal rather than what rule the court should apply under bankruptcy law. The case dealt with how to determine whether a person was a non-statutory insider.

According to the professor, the opinion starts out formalistically and ends on a functionalist crescendo. The formalistic part of the opinion notes that there are three types of issues on appeal: issues of fact, issues of law and mixed questions of fact and law. Factual determinations receive deferential review while questions of law are reviewed on a clean slate. For mixed questions, it depends. The functionalist part of the opinion looked at what the Court was doing as it examined the mixed question of law and fact. If what the court was doing was closer to fact finding than applying the law, then the more deferential standard would apply. Prof. Pottow pointed out that the institutional competency of the Supreme Court was deciding difficult issues of law in a manner that would provide guidance to the lower courts. The institutional competency of the bankruptcy court was listening to evidence and making decisions about the facts.

Having established that appellate courts should defer to the fact finding of trial court’s, individual justices began to weigh in on what the rest should be. This was a problem because the Supreme Court had not granted cert on this issue. Nevertheless, Justice Sotomayor said that the test used by the Ninth Circuit was dumb. Justices Alito, Thomas and Kennedy joined in the concurrence. Justice Kennedy concurred in the concurrence. This probably show buyer’s remorse that the court had not granted cert on the substantive issue and was left with a narrow, insignificant opinion. Finally, there was Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883 (2018), a case about whether the safe harbor for securities clearing transactions should apply in a case where funds for a stock purchase flowed through two banks before reaching their ultimate destination. According to Prof. Pottow, this would have been a great case for the Supreme Court to dive deeply into the question of what is a transfer. In point of fact, funds travelled from the buyer (Party A) into his bank (Party B) to the Seller’s Bank (Party C) to the Seller (Party D).

The Supreme Court disregarded the parties in the middle, stating that while there was a transaction, there was not a transfer. Prof. Pottow claimed that the Supreme Court merely stated that the transfer was from A to D without analyzing why that was the case. I personally believe that they were looking at the economic reality of the transaction. The banks were akin to a courier rather than parties who came into ownership of the funds. Sure, a courier could make off with the funds and not delivered them, but that is not what happened here. Expressing his disappointment with this case, Prof. Pottow suggested that it might not be a good case to include in the next textbook. Prof. Pottow pointed out that the judges who were the most functionalist went along with all three opinions. Of course, they were all 9-0 decisions, so that the judges who were most formalist went along with them as well. There is more that I wanted to write about. However, the hour is late and tomorrow starts with a run at 6:00 a.m. I may add to this section after I return home.

Every once in awhile some small piece of good news comes along. It’s the “don’t give up on me” news. Today’s good news comes in the form of a Supreme Court ruling that vacates the judgement of January 16, 2003 in the City of Eugene case (“Lipscomb”). While this doesn’t undo the effect of the case, it removes the case as legal precedent and may not be cited in future PERS litigation. This is a result of the Supreme Court’s ruling last August that mooted the City of Eugene appeal itself by the PERS Coalition. For those interested in reading the Court’s ruling, a copy will be posted on my web site later today and an addendum made to this post providing the link. To be a bit more precise on the effect, normally when the Supreme Court “moots” a legal case, it vacates the underlying case rendering it of no further legal significance. When the Oregon Supreme Court mooted the PERS Coalition’s appeal of the City of Eugene judgement, the SC failed to vacate the underlying judgement. This was seen as a glaring omission and legally problematic as it left in force a judgement that itself had been superceded by Legislative action and a settlement agreement. However, as long as the judgement itself wasn’t vacated, the case remained as a legal precedent that precluded any further litigation. As I understand it, the City of Eugene ruling simply no longer exists.

Chicago Daily Law Bulletin carries two articles that expose what may be a structural flaw in the legal profession itself. Too big a claim, you say? I believe I can back it up. A lot of these firms slowed hiring and shed talented attorneys at the height of the Great Recession. It was thought that recent hiring increases portended a return to business as usual. But these surveys suggest otherwise. Collins begins by focusing on one pro se litigant, Jennifer Garcia, a single mother of two, who has gone to court representing herself on various matters several times over the last three years. It is a generous, laudable response. Per Collins’ article:Several states report high percentages of civil and family cases with at least one self-represented person. In Connecticut, 85 percent of the approximately 45,000 family law cases in the 2011 fiscal year had at least one self-represented party. In other words, pro se litigants are starting to show up with increasing frequency in courtrooms that hear matters other than collection cases or mortgage foreclosures. Judges privately express frustration with dockets increasingly clogged with pro se cases; even careful viewing of The People’s Court turns out to be less than optimal training for real-life courtroom appearances. Given a choice, most judges would want all parties before them to be represented by counsel. But the trend now is otherwise. So: On the one hand we have slowing demand for legal services, even among well-heeled or corporate clients and, on the other, we have a huge uptick in pro se litigants in our courts. What does that tell us?

Chief Justice Saqib Nisar wants footage of a clash between lawyers and a policeman at the next hearing of a suo motu case involving lawyers manhandling the officer. During the hearing on Saturday at the Supreme Court’s Lahore Registry, the general secretary of the Lahore Bar Association (LBA) requested the court to cancel the FIR and prevent the lawyers from being arrested. However, the top judge said that whoever is at fault will not be forgiven. An FIR was lodged on October 4 by sub-inspector Samar Riaz Khan at the Islampura police station. Advocates Saif Khokhar, Nabeel Haider, Mustafa Khokhar and 14 others have been named in the FIR. The complainant alleged that some lawyers tortured him at the sessions court, tore his uniform and kept him in illegal custody in a room. Section 7 of the ATA has been included in the FIR. The CJ took suo motu notice after the video of the assault was aired by television channels. He said that he is ashamed of whatever happened as he is the father of the judiciary. He also said that those who lock court gates should not enter his room.

Are you thinking about taking your kids on a historical trip of the capital city of India? Further ahead is Pragati Maidan, which is a venue for Annual Trade Fair, Auto Expo and Book fare as well. Moving down the road, you come across the Zoological Garden, which is popularly known as the Delhi Zoo. Right across the road from Delhi Zoo is the Supreme Court of India, and further ahead on the roundabout towers the India Gate, rising majestically on the Raj Path which leads to the all imposing Rashtrapati Bhawan. Not very far from Rashtrapati Bhawan is Teen Murti Bhawan, which is named after the 3 monkeys. Moving on from Teen Murti, you can see the Safdarjung Tomb, Humayun’s Tomb and the iconic Qutub Minar in Mehrauli. A few words of advice though; that the most appropriate time to go sightseeing in Delhi is during winters (from November to February). Any other time of the year will be too hot or too humid, which might turn this fun trip into a nightmare.

Being on bail means you are not in gaol as you wait for your case to come on. If bail is refused or granted with certain conditions that you can’t meet (by either a magistrate or a District Court judge), you can then apply to the Supreme Court for bail. Before you apply to the Supreme Court for bail there are some things you should know. How many times can I apply for bail? There are restrictions on the number of times you can apply for bail. Under the Bail Act you are allowed only one application for bail unless you can show new facts or circumstances have arisen since the previous application. However, you may apply for bail in the Supreme Court even if you have been refused in the Local Court. If you are not fully prepared at the time your bail application is listed in the Supreme Court, it is wise to withdraw your application and re-apply when you are ready.

Who should I bring to court? The judge will want to hear evidence from people who will support your bail application. These could include people you might live with or people who will put up money or property to secure your bail. When you know the date of your bail application, you should contact these people and ask them to be at the court to give evidence. If you want to do residential rehabilitation while you are on bail, the main way you can be assessed for rehabilitation if you are in custody is by way of a request from a court. When you first appear in the Supreme Court, you ask the Court to request a drug and alcohol assessment and then it is adjourned for 4-6 weeks for the assessment to be done. Then when your bail application is heard, there will be a letter before the Court from the centre, saying they have accepted you, and detailing the program. It helps if you have someone who can pick you up from gaol and take you directly to the centre.

Without this evidence, it is highly unlikely that you will be granted bail to attend a rehabilitation centre. Will I stay in custody even if bail is granted? You are not entitled to Supreme Court bail if you will be in custody for a longer period than the period for which you are seeking bail. What happens if I can’t meet my bail conditions? If you have been granted bail in the Local or District Courts that you can’t meet, you should go back to the court that granted bail and try to have the conditions changed before you apply to the Supreme Court. The Supreme Court judge could grant you the same bail as you were given before, change your conditions, or refuse your bail altogether. The Crown can ask for tougher conditions. Do you want Legal Aid to represent you? Legal aid is not automatically granted. There is a merit test, including the reasonable prospects of success in your bail application.

When you put in your bail application to the Supreme Court, mark on the form if you want Legal Aid to represent you. Although you may not be granted aid, you will still be eligible to receive advice. Can I get bail if I have appealed? If you have been convicted or sentenced in the Local Court, you must lodge your appeal to the District Court before applying to the Supreme Court for bail. You are able to make a bail application in the Local Court when you lodge your appeal. If you have appealed to the Court of Criminal Appeal against your conviction and/or your sentence in the District or Supreme Courts, you can apply for bail in the Supreme Court. However, you will have to show that there are special circumstances before the court will hear your bail application. Special circumstances include that you will probably have served most of your sentence before your appeal is heard and/or that you are most likely to win your appeal. For this reason it’s best to have the merit of your appeal assessed before applying for Supreme Court bail. You will probably only be granted bail if there is some evidence that you are likely to win your appeal. The Supreme Court is located at Court No 1, King St., Supreme Court Building (near St. James or Martin Place railway stations). For further information about bail in general, see the Legal Aid NSW brochure, A guide to bail. LawAccess NSW can also assist you.

The White House has made it clear that it would oppose any move to rewrite Congress’ 2002 authorization. Whether Congress can impose such restriction will draw robust debate. Constitutional scholars disagree on whether Congress can dictate to a president when and how he can deploy troops or whether that would impinge on the president’s authority as commander in chief. I’m interested to know the names of these scholars who have discovered a clause in Constitution where executive power does not rest with the executive. But since Congress doesn’t have the conviction to stop the war constitutionally (by cutting off funding) the Democrats need to extend their election position and make believe it’s leadership. How feckless is this posturing? Ruth Wedgwood, a Johns Hopkins University international law professor, said Friday. University of Virginia law professor Robert Turner. Forget the fact that any “do-over” legislation would be blocked in the Senate by a Republican filibuster or possibly a Lieberman flip. I wonder if the Democrats, who have a very good chance of capturing the White House in 2008, want to establish a precedent where Congress can restrict the powers of the commander-in-chief. The Founding Fathers set up this separation of power to prevent the legislative branch from interfering with executive power. If the Democrats feel the war is lost, they should find the courage to cut off funding and end American involvement in Iraq. Otherwise, they should stick to soundbites and shelve this Constitutional sham.