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Troy McKenzie
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mt: Fair enough.
Toggle Commented Jan 31, 2011 on The Upside of High Fees at Credit Slips
I'm not sure I understand your comment, AMC. Is it that charging market-rate fees for the services of leading members of the bar *is* bad or just *looks* bad? If it's the latter, I'm skeptical that John Q. Public's perception will be much different if he hears that a lawyer charges $400 per hour or $800 per hour. Admittedly, those are both very big numbers to the average wage earner. I also don't think it makes sense to approach fee objections as a form of window dressing, in which the goal is to shave a bit here and there--again, for perception's sake. To be sure, we could move to a system of much heavier regulatory control of corporate reorganization. That was a central part of the New Deal-era bankruptcy regime, with the SEC playing the role, and it was not an ideal scheme. Chapter 11 and the concept of debtor-in-possession responded to the perceived inadequacies of that pre-1978 world.
Toggle Commented Jan 29, 2011 on The Upside of High Fees at Credit Slips
Some of the comments to Stephen Lubben's post on "overhead" raised the longstanding complaint about high fee awards in New York and Delaware Chapter 11 cases. We all know the academic and political condemnations of Chapter 11 as merely a... Continue reading
Posted Jan 28, 2011 at Credit Slips
You're probably right, but I was genuinely surprised by the unusual political configuration. It's also possible that there were real federalism concerns at play. Hatch, for example, wanted to return to a much more restrictive system of bankruptcy court jurisdiction, with more matters left for decision in the state courts.
Stern v. Marshall presents another issue that deserves attention. In addition to the constitutional arguments, the respondent (the creditor) raised a statutory objection to the bankruptcy court's ability to hear and decide the debtor's counterclaim as a core proceeding. The... Continue reading
Posted Jan 26, 2011 at Credit Slips
John: Those are all plausible solutions for the Court to consider. A point about Northern Pipeline that's bugged me. I sometimes wonder whether Justice Brennan's real concern in Northern Pipeline was the Seventh Amendment jury-trial right and not so much Article III. In other words, maybe the dictum in Granfinanciera ("delphic" is a charitable description, by the way) makes sense as a way of explaining what really drove the plurality opinion in Northern Pipeline.
Bankruptcy Judge: Please don't get me wrong--I don't think that the lack of definitive guidance from the Court on the constitutionality of the bankruptcy system is a good thing. But I do think that the Court walks on eggshells when dealing with cases touching on Article III. Just as in other areas involving separation of powers, the fear of unnecessary systemic disruption and inter-branch conflict wins out over the desire to clarify the law further. And "studied ambiguity" is probably an apt description of the tenure process at most universities!
Gregory: The Court doesn't view Article III as solely an individual right. The protections of Article III are also viewed as structural protections of the judiciary, in which case waiver-based arguments are less persuasive. That point--the structural nature of Article III--was one Chief Justice Roberts kept pressing in an extended colloquy with the Solicitor General's office (which participated in the argument as amicus supporting the debtor).
As John Pottow previewed in this post, the Supreme Court heard oral argument last week in Stern v. Marshall, better known as "The Anna Nicole Smith Case II." Justice Sotomayor put the first question to Kent Richland, lawyer for Vickie... Continue reading
Posted Jan 24, 2011 at Credit Slips
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Jan 21, 2011