Judge Keith Lundin dropped a comment on a three-week old post about the pending Supreme Court case involving Travelers’ attorneys fees in the PG&E bankruptcy. Professor Stephen Lubben from Seton Hall kindly sent along some thoughts on the case. Judge Lundin makes an important point that really deserves more attention. The case may not belong at the Supreme Court at all, meaning the Court might dismiss the case as having improvidently granted certiorari. (For nonlegal types the Supreme Court is said to "grant certiorari" when it agrees to a hear a case.)

(more…)

This evening, I have 75 minutes to summarize U.S. bankruptcy law to our graduate-level law students who are here from other countries. We have a class that introduces them to U.S. law, and I was told they expressed an interest in bankruptcy law. That statement may have been a clever persuasive technique so that I would agree to give the lecture. Wait a minute . . . now that I think about it the instructor also teaches a class on effective advocacy. Duped again.

Actually, it is more likely that this interest in bankruptcy law reflects the growth of consumer credit overseas. As American-style consumer credit has spread around the globe so has American style consumer financial distress. I do not want to overstate the point because I am sure the class has an interest in both business and consumer bankruptcy. What I would like to do is focus on one or the other, but my task is to cover both.

I agreed to give the lecture because that is what colleagues should do at a university. As I have been preparing for the lecture, however, I have come to realize this has been an incredibly useful learning exercise for myself. It has focused me to think about what I consider to be the essential pieces of knowledge for this area. What should be emphasized in a 75-minute class that covers the whole of bankruptcy law?

(more…)

Over the past two weeks, I have been following a story about Leif Clark, a bankruptcy judge in San Antonio (see here and here). As regular Credit Slips readers will remember, Judge Clark wrote a letter to National Public Radio responding to an interview. In the letter, Judge Clark made remarks highly critical of the Bush Administration’s attitude toward civil liberties. At the time, I thought we had the proverbial tempest in a teapot about whether Judge Clark’s comments violated the Canons of Judicial Ethics which forbid judges from engaging in "political activity." The San Antonio News-Express has reported that Judge Clark’s comments are now "under review by the chief judge of the 5th Circuit Court of Appeals, the tribunal that disciplines federal judicial misconduct in Texas, Louisiana, and Mississippi."

When I saw that, it reminded me of another time a judge commented on public issues. In Judge Edith H. Jones & Todd J. Zywicki, It’s Time for Means-Testing, 1999 B.Y.U. L. Rev. 177, Judge Jones and Professor Zywicki urged Congress to adopt means testing as a gatekeeping rule before consumers could file bankruptcy. At the time, that proposal was hotly contested, but it ultimately became law in 2005. Judge Jones, of course, is chief judge of the Fifth Circuit. She is the very same judge who is now reviewing Judge Clark’s comments.

What justification can exist for possibly treating the two situations
differently? As a bankruptcy judge, Judge Clark made comments on
matters that could not conceivably become an issue in his bankruptcy
courtroom. Judge Jones on the other hand will be hearing appeals
involving the means test that she advocated as a panacea to the bankruptcy system’s ills. If anything, Judge Jones’s article raises more serious concerns about the appearance of impartiality because she commented on matters that could come before her court.

I suppose one might say that Judge Clark’s comments concerned a matter on the front page of every newspaper, but Judge Jones wrote about an issue that arises less passion. Surely that cannot be the basis for a principled distinction. Given the numbers of persons affected by the U.S. bankruptcy system each year, Judge Jones wrote about an issue of great important to a great many people, even if it is a topic that does not exactly cause protests in the streets.

One might also try to say that Judge Clark’s letter to the editor somehow expressed mere opinion and does not rise to the formality and dignity of the academic article where Judge Jones expressed her views. Without rehashing here the entire debate about the current state of legal scholarship, let’s just say that legal journals are not exactly renowned for their dispassionate empirical analyses and are characterized principally by normative argument. In fact Judge Jones and Professor Zywicki did not disguise that their conclusions in the article rested on their personal views:

Unlike, perhaps, the critics of means testing, we believe that the dramatic escalation in consumer bankruptcies in an era of prosperity is a troubling and costly social phenomenon. In our view, the evidence now available tends to suggest that the recent rise in personal bankruptcies has been significantly influenced by a decline in the personal shame and social stigma traditionally accompanying bankruptcy, and by changes in the law and legal practice that have facilitated filing bankruptcy.

1999 B.Y.U. L. Rev. at 180. Unlike the supporters of means testing, I believe differently. In my view, the evidence is different than what Judge Jones and Professor Zywicki see. I do not expect they agree with me, but their opinion is no less an opinion for being published in an academic journal.

At the end of its article, the San Antonio News-Express article quotes DePaul law professor Jeffrey Shaman: "’We need judges to participate in the public discourse,’ he said. ‘We need their wisdom and their experience.’" That’s exactly right, and it’s right whether we are talking about Judge Jones’s views on means testing or Judge Clark’s views on detainee rights. By even initiating the review of Judge Clark’s comments, the Fifth Circuit has put a significant chill on speech protected by core First Amendment values. Another expert, James Alfini of the South Texas College of Law, wondered whether the Fifth Circuit’s actions did not implicate a recent Supreme Court case that struck down a rule prohibiting judges running for office from expressing their views. Coincidentally enough, it was also reported today that a Texas appeals court panel had dismissed a complaint against a judge who had spoken out in favor of Harriet Meiers’s nomination to the Supreme Court. The Fifth Circuit should take note and quickly shut down this review.

Last week, I posted about some comments on another blog about the propriety of a federal bankruptcy judge writing to National Public Radio and commenting negatively about the detainee rights bill. Today, the Houston Chronicle ran a story on the topic: "Bankruptcy Judge Denounces U.S. Policy." (The story appeared on the Dow Jones Newswire, so it likely ran in other places as well.) From the article:

The outburst surprised other judges and could subject Clark to disciplinary action, lawyers said. Clark, a judge in San Antonio, Texas, was unavailable to comment Monday.

Chief Judge Edith H. Jones of the 5th Circuit, where Leif is based, said this is the first time in her eight-month tenure she has heard of a bankruptcy judge commenting publicly on a legal issue.

"This is a very novel situation," Jones said in an interview. She said she wasn’t sure how the situation would be handled, if at all, but that she planned to look into it.

"I do not want to be saying anything definite at this point," Jones said.

Bankruptcy judges are appointed by the U.S. Court of Appeals for the circuit in which they are located and are subject to oversight, discipline, and possibly removal by the judicial council for the circuit. Bankruptcy judges are appointed for 14-year terms, and I believe the judge in this situation was reappointed in 2001. For those who are interested, section 152 of title 28 of the United States Code has all the rules. It’s far from clear that anything will come of this, but if a controversy does develop, it could highlight the always delicate relationship between the Article III judiciary and the bankruptcy judiciary.

There are two topics I didn’t expect to see intersect, but yesterday morning, National Public Radio’s Morning Edition ran a letter from Judge Leif Clark of the United States Bankruptcy Court for the Western District of Texas. Judge Clark was reacting to an interview that Morning Edition did with John Yoo, a former official with the Bush Administration. Judge Clark wrote:

Listening to John Yoo talk about this new legislation was chilling.
I’m a federal judge, and have taught constitutional law for 16 years.
The very idea of holding anyone without trial, without the right to see
the evidence that was used to justify naming them an "enemy combatant,"
and depriving them of the ability to challenge why they are even there
is so repugnant to a constitutional democracy that I am shocked that
this man actually claims to be defending American values. These are the
tactics of the old Soviet Union, not of a country that stands for
freedom and the rule of law.

I also quibble with his
contention that U.S. citizens still have the right to habeas review.
I’ve read the law. The president can form his own tribunal, which can
determine who is an "enemy combatant" (not just an alien enemy
combatant), and the decision of that tribunal would not be subject to
habeas review. Moreover, persons targeted by this tribunal would not
even have access to the military tribunal trial created under this law.

How easy it would be for a president to use such a law to make his political enemies simply disappear.  Can this be America?

This letter has stirred a minor controversy over at Is That Legal? Although the initial blog post was quite complimentary to Judge Clark, a comment asked whether he had violated canon 7 of the Code of Judicial Ethics, which requires judges to refrain from political activity and should not publicy endorse or oppose a candidate for office. Can that possibly be right? Is a statement criticizing the executive branch "political activity?" There have to be some limits to the reach of canon 7 or every public utterance a judge made could be construed as being "political activity." Are First Amendment issues raised by disciplining a judge for such a statement? Not being an expert in judicial ethics, I ask these as questions, not to suggest an answer.