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I had such a great time again at the 9th Circuit Judicial Conference last week in Spokane.  Plus I got to wander around my old alma mater Gonzaga University.

Justice Kagan attended the final get-together of the conference on the grounds of Gonzaga Law School.  I got to take the picture and shake her hand!  She is such a regular person with endless patience meeting and having her picture taken with everyone.  The last program of the conference the next day was an interview with her.  She made three particular comments that I thought were pretty interesting:

1.  During the almost two years when there were only eight of them, they really worked harder on the 4-4 votes.  They really didn’t want to rule 4-4.  I think most of us know that.  But she said that    typically with nine justices, they vote at the conference and at the end of the vote, someone wins.  The natural tendency is to move on.  But when the vote was 4-4, they would continue talking about it, sometimes for a long time, what can we do, how can we find a way to rule rather than just say we’re stuck?  She chuckled and said often the way out was to limit the scope of the ruling which may have been to a point that the ruling wasn’t terribly useful but at least it was a ruling.

2.  Justice Kagan was a law clerk for Justice Thurgood Marshall.  She loves the man.  He told the clerks countless stories.  She said she thinks he is the greatest litigator of the 20th century.  He argued probably 15 times before the Supreme Court.  But she added that there were times when he would argue before the Supremes and two days later do a trial in Mississippi.  He had a lot of experience in every venue and love to tell about it.

3.  Justice Kagan was asked whether she agreed with the perception that there is a growing “supreme court bar,” i.e., a fairly small group of lawyers focusing on the Supreme Court.  If so, is that good?  She said that the concept is generally right and that it is good for the court.  That is because those lawyers know what to expect, what the court wants, how to talk to the court, get intimidated a little less, and the court therefore trusts them a little more going into oral argument.  She commented that sometimes there are attorneys arguing before them that they wish had gone to one of the specialists.

Another memorable class with Prof. MJH when my jaw dropped upon reading Justice Miller’s opinion in a famous 1874 Supreme Court case about the balance between the purpose of the bankruptcy process versus what really goes on…….

Justice Miller writes….

“It is obviously one of the purposes of the Bankrupt law, that there should be a speedy disposition of the bankrupt’s assets.  This is only second in importance to securing equality of distribution……it is a wise policy, and if those who administer the law could be induced to act upon [the Codes] spirit, would do much to make the statute more acceptable than it is……….But instead of this, the inferior courts are filled with suits by or against [trustees], each of whom as soon as appointed retains an attorney, if property enough comes to his hands to pay one, and then instead of speedy sales, reasonable compromises, and efforts to adjust differences, the estate is wasted in profitless litigation, and the fee of the officers who execute the law.”  

I wish I could sarcastically ask Justice Miller — but how do you really feel?   This was in 1874…I gaze into the sky and wonder what he would think if he were to see the “suits” filed today (i.e. 547/548).  Smirk

In a quick parenthetical Justice Scalia says “…bankruptcy law has little to do with natural justice.”  I then reconcile this with Prof. MJH’s golden rule # 1 “bankruptcy really doesn’t do anything.”

Philosophical Friday thoughts.

On Jan. 12 the Supreme Court granted certiorari and will review Lamar, Archer & Cofrin LLP v. Appling, 16-1215 (Sup. Ct.), to resolve a split of circuits and decide whether a false oral statement about one asset is a statement of “financial condition” that must be in writing to result in denial of discharge of a debt under Section 523(a)(2).  The briefs are here.    It has not been set for oral argument.

The 11th Circuit has a nice summary of the issue in the first paragraph.

This appeal presents a question that has divided the federal courts: Can a statement about a single asset be a “statement respecting the debtor’s . . . financial condition”? 11 U.S.C. § 523(a)(2).  Ordinarily, a debtor cannot discharge any debt incurred by fraud, id. § 523(a)(2)(A), but a debtor can discharge a debt incurred by a false statement respecting his financial condition unless that statement is in writing, id. § 523(a)(2)(B).

Below is my brief on the issue resolved by the 9th Cir BAP.  Read more…