03 February 2016

Trolling the Platitudes of Legal Education

Legal education today is under attack from a multitude of quarters. (See my posts here and here for a couple of examples.) Plus ça change, plus c'est la même chose.
While reading Jim Gordley's most recent work, "The Jurists: A Critical History" (Oxford 2013) I couldn't help chuckle when I read several quotes from an article published in the Yale Law Journal in 1943.

According to authors Harold D. Lasswell and Myers S. McDougal in Legal Education and Public Policy: Professional Training in the Public Interest, the goal of legal education should be to train lawyer-policymakers who would work to implement "democratic" values. To what end, you ask?
A legitimate aid of education is to seek to promote the values of a democratic society and to reduce the number of moral mavericks who do not share democratic preferences.
Why these democratic-totalitarian ends?
The laborious work of modern science had provided a non-sentimental foundation for the intuitive confidence with which the poets and prophets of modern brotherhood have regarded mankind. Buttressing the aspirations of these sensitive spirits stands the modern arsenal of facts about the benevolent potentialities of human nature [sic] and a secure knowledge of the methods by which disturbed personality growth can be prevented or cured.
I guess you can count me among the "moral mavericks" but even so one can only wonder what folks 70 years hence will say about silliness of much of what is published in the Journal of Legal Education or what frivolous changes in course syllabuses must soon be implemented at the behest of the American Bar Association acting as an agent of the educrats at the U.S. Department of Education.

01 February 2016

ASARCO Bites: Boomerang Tube and Attorneys Fees for Committee Counsel

This past November I posted a series of entries dealing with bankruptcy cases from the Supreme Court's most recent term. In Part 5 here I discussed Baker Botts v. ASARCO. Briefly, the law firm of Baker, Botts did an outstanding job for a Chapter 11 debtor. In fact, through the law firm's efforts, ASARCO's creditors received payment of 100% of their claims. One entity, however, was most unhappy with the work of Baker, Boots, the parent corporation of ASARCO who Baker, Botts had sued for looting its subsidiary. Anyway, after losing the lawsuit against it and putting the cookies back into the jar, so to speak, and getting ASARCO's creditors paid, the parent corporation re-took control of it subsidiary and objecting to paying Baker, Botts for its work.

To no one's surprise, the courts, including SCOTUS, approved the fees incurred by Baker, Botts excluding, however, the fees it incurred in fending off the objections by the disgruntled parent corporation. In other words, Baker, Botts had to "eat" the cost of getting what every objective observer agreed it deserved.

The majority of SCOTUS came to its conclusion based on its reading of the relevant section of the Bankruptcy Code. The Court went on to note, however, that it might be possible for a firm in the position of Baker, Botts to recover the cost of successfully defending its fees if its contract with the Chapter 11 debtor so provided.

Fast forward to January 2016 when the law firm representing the committee of unsecured creditors in the Chapter 11 of Boomerang Tube inserted such a fee-shifting term in its agreement with the committee. Committees, for those not engaged with the details of Chapter 11 practice, jointly represent all unsecured creditors but, after court approval, are paid by the Chapter 11 debtor. The United States Trustee objected to inclusion of the fee-shifting provision and the bankruptcy court eliminated it.

The bankruptcy court found the provision objectionable for several reasons only one of which seems compelling to me: it would require a third party, the Chapter 11 bankruptcy estate, to pay for the defense fees of another party, its creditors' committee. You can read the full opinion here. The remainder of Judge Walrath's opinion is a cramped reading of every aspect of the Supreme Court's opinion in ASARCO and the relevant statutes.

I don't think it would be worth the Committee's time to appeal this decision. After all, getting a third party to pay fees spent in defending your fees is a stretch. I remain hopeful, however, that counsel for Chapter 11 debtors will fight for the contractual right to get paid in the face of formulaic objections to their fees from parties have no skin in the game. 

29 January 2016

Duberstein 2016

In the spring of 2015 I posted several times about the experience of coaching a team from Regent University law school at the premier bankruptcy law moot competition (here, here, and here), which St. John's University law school has hosted every year. Duberstein 2015 focused on something close to every student's heart, the dischargeability of student loans. This time around, and drawing from the ignition switch litigation plaguing the aftermath of the reorganization of General Motors, Duberstein 2016 returns to the complexities of Chapter 11 and the constitutional scope of bankruptcy court jurisdiction. You can read the fact pattern here.

I regret that Regent has not entered a team this time. I am pleased, however, that my new academic home, Campbell University School of Law, will be sending a team to this year's competition thanks to the generosity of Raleigh-based law firm Stubbs & Perdue, P.A. (Read the news release here.) I look forward to mooting Campbell's team as it prepares for this opportunity to shine before America's leading bankruptcy judges and professionals in New York in March.

26 January 2016

The Tragedy of Donald Trump. Or, Dordt College Helps Make News

Over the years, several of my posts have mentioned my undergraduate alma mater, Dordt College. (Check here and here for some examples.) Given its location in Iowa, Dordt has offered the B.J. Haan auditorium to all candidates running for their party's nomination in the Iowa caucuses. Of this year's Democrats, only Larry Lessig took advantage of the opportunity (bonus points for anyone who can honestly say he or she even knew Lessig was running) and that the day before he dropped out. (Lessig was the only person who could make Martin O'Malley look like a serious candidate.)

More Republicans have taken advantage of the opportunity afforded by Dordt, perhaps because it's located in Sioux County, 80% of whose residents reliably vote Republican in presidential elections. A few days ago those interested in one of the leading Republican contenders, Donald Trump, managed to fill every seat in the auditorium as well as several remote viewing locations. Known more for his rhetoric than his insights, Trump managed to leave even a supportive audience scratching their heads with this well-reported remark:

I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK? It's like incredible.
For news reports about his remarks check the Sioux City Journal (here) and the Minneapolis Star-Tribune (here). A recording is available on YouTube here.

Two matters about Trump's remarks cause some regret. First is the risk that some folks who don't know about Dordt's open-door policy for presidential candidates will mistakenly conclude that the college in some way support Trump or his views. Such were the concerns express in Jason Lief's blog here. I frankly don't think that's likely to be the case, especially in light of the remarks of Eric Hoekstra, Dordt's president:
Each time a candidate comes to campus, I have a certain sense of “cringe” for what it says to our students—political speeches are always full of broad-brush promises about what the candidate will do. There isn’t a candidate or party that can be 100% biblical or reformational—at least it seems that way to me. Opening our facilities to political candidates in no way implies an endorsement of their views.
Our choices are:
1.    To invite no candidates and have none of them on our campus
2.    To allow every candidate in good standing with their party equal access to our campus
3.    To pick and choose those who are worthy of having access to our campus and those who are not
We’ve chosen path no. 2. To fulfill our mission (equipping students, alumni, and the broader community to work effectively for Christ-centered renewal), this seems the best path with regard to political candidates. Certainly, option no. 1 would be to abdicate our mission. I don’t believe option no. 3 would be obediently responding to our calling as an educational institution. It would also violate our status as a nonprofit institution because it would be considered political speech.
The vitriolic nature of Trump's remarks and the vacuous nature of his "solutions" causes me greater regret. On a variety of issues Trump speaks to matters that are very real to a large number of Americans. The decline in numbers of jobs for working class Americans is real. The shrinking middle class is real. The ever-deepening penetration of the national-security state is real. Yet, Trump's bombast and undisguised opportunism means that discussions of new solutions to these concerns are (and certainly will be) shunted aside when the Trump balloon bursts.

Populism has a long and storied history in American politics (e.g., William Jennings Bryan, Wisconsin's "Fighting" Bob La Follette, and, more recently, Ross Perot). While its leaders were serious, populism as a movement failed to provide practical solutions to the problems its leaders identified.


More invidious than previous populists, however, is Donald Trump who is not serious. He is a corporatist who has used the power of the government to line his own pockets and is now masquerading as a friend of the people. Frauds regularly populate American culture (and sometimes American politics) but the real damage Trump will leave in his wake is a discrediting of non-liberal solutions to the problems animating his followers.


American political life is currently dominated, on the Left, by Progressive (state-centered) and, on the Right, by neo-liberal (corporate-centered) approaches. Neither a top-down nor a side-over approach to human society fundamentally addresses the real concerns of many real people. Neither is likely to cultivate communities in which human flourishing can grow and thrive.


Thus, Trump's flamboyant personal aggrandizement will in the end serve only to promote more of the same. A same that in which we see a withering of virtue and community and a never-ending growth of social atomism and end-less consumption.


Fred Siegel puts it well in the New City Journal here:
Trump’s a big-city guy with a big mouth who made his money from casinos and TV shows and went bankrupt twice. His appeal lies in his brashness—his willingness to violate politically correct conventions that are widely despised. It was said in mistaken defense of Joe McCarthy that, unlike the liberals, he at least understood that the Communists were our enemies. True enough, but as Obama understands, liberals dined out for decades on the inanities of McCarthyism. Obama hopes that Trump will serve the same purpose. (Emphasis added.)

20 January 2016

It's On the Wall

I don't recall when I first read this piece in Slate titled "The Greatest Paper Map of the United States You'll Ever See" but I very much recall how much I enjoyed reading it. I don't know how many other young teens wanted to be a cartographer when they grew up but I was one of them. Franklin Maps on South Henderson Road was a favorite place to visit and I eventually collected the U.S. Geological Survey 7.5 minute maps not only for my home area but also for the farms of my relatives where I spent many summers.

I may have mentioned David Imus's map of the United States to Jeremy or he may have discovered it on his own. In any event, he unrolled his 4' x 3' copy on the dining room table Christmas Eve day and he and I spent some fascinating time studying what, where, and how Imus had crammed so much beautifully-done information into his map.


To my pleasure, on Christmas morning I was surprised to get from Jeremy a small, signed section of Imus's larger work. It now hangs on the wall of my office. 

Centered on the Great Lakes region (where we lived for nearly 15 years), Imus writes the following about this work:


One goal of the Essential Geography of the USA was to draw out America's iconic landscapes, and what American landscape is more ionic than the Great Lakes?
Beyond that, this area is a geographic vortex. Here, two of the world's great nations share a border, the boreal forest transitions into the open farmland of the Midwest, and the massive lakes themselves create a climatic phenomenon known as the "lake effect." So recently did the glaciers retreat from here that the Great Lakes are only twice as old as the world's oldest living tree.
I suspect that the purpose of maps in a person's life changes as one gets older. They remain, to be sure, guides to get from here to there but now they function just as much as a reminder of where one has been and how the stability of the earth compares with the brevity of a life. In any event, I commend Imus's work to all who find the where as important as the who and what.

19 January 2016

Inside Bankruptcy Baseball: Increasing Debt Limit for Chapter 12 Bankruptcies

I've often posted about Midwestern farmers including taking their fertile land for granted (here), absurd prices for that land (here), and their corporate welfare by means of ethanol subsidies (here and here). Lately, it appears that the wealth of those same farmers may be cresting. Exhibit 1 is the following news blurb:

With agricultural lenders fearing a tidal wave of farm bankruptcies as soon as this spring, lawyers in the Midwest say they want Sen. Chuck Grassley (R-Iowa) to raise the debt limit for so-called "family farmer" bankruptcies, Reuters reported yesterday. Farmers in states like Illinois, Indiana and Iowa are scrambling to secure lending for the 2016 growing season at a time when prices for their corn have halved from three years ago. As they seek restructuring advice, many are told their debts surpass the $4 million limit for a chapter 12 family farm bankruptcy, said at least five lawyers who represent either debtors or creditors. They say the $4 million cap is out of touch with most farms' current operating size, often thousands of acres of land paid for by expensive leases and worked using tractors that can cost more than $250,000. "The debt limit for chapter 12 bankruptcies should be raised to at least $10 million," said Joseph Peiffer, a bankruptcy attorney in Cedar Rapids, Iowa. Without a new limit, farmers would be forced into a more costly chapter 11 filing. (Emphasis added.)
In other words, rather than saving their windfall profits, many farmers bought land at prices that could be justified only by a belief--wrong as it's turned out--that commodity prices would ever-continue to increase. I suspect that the only thing's that's kept the foreclosure wolf at bay has been the even more precipitous fall in the price of oil and thus fuel that modern corporate farming behemoths use aplenty.

Increasing the debt limit for Chapter 12 bankruptcies may well be a good thing. Compared with the cost of Chapter 11 reorganization, the special bankruptcy provision for family [sic] farmers is less expensive.

Cheaper farm bankruptcies come at a price, however, and that price is lesser protection for farm lenders. No one feels much sympathy for lenders, of course, but Chapter 12 is structured in a way that the debt to such lenders man be written down to current land values thus leaving future appreciation, which will come eventually, in the hands of the farmer. Accomplishing such a result is not as simple as my brief description might suggest but its mere possibility effects bankruptcy negotiations between farmer and lender.

Last, even if Senator Grassley introduces a bill to increase the debt limits for Chapter 12, there's no guaranty it will simply pass as such. In other words, even an unobjectionable bill is an opportunity for logrolling. Stay tuned to see what gets larded onto what should be a straightforward change.

12 January 2016

"Meet the Patels"


Meet the Patels (2014) Poster

We found it frustratingly difficult to find a showing of the docu-comedy Meet the Patels. Whether we were in Tidewater or the Triangle, this film about the search of a 30-year-old Indian-American for love and happiness always seemed to be showing somewhere else. We were very pleased that as a Christmas gift daughter Lisa, who had tracked down a one-day showing in a Chicago suburb for when we were to be in the Windy City, gave us a gift card so we could finally see it.

Meet the Patels is presented as a documentary filmed by Geeta Patel about her older brother Ravi's attempt to find a suitable marriage partner in the new old-fashioned Indian way. Their parents' marriage had been arranged in India not long after father Vasant has come to America to make a life for himself. Geeta and Ravi grew up speaking Gujarati and worshiping traditional Indian deities at home but everywhere else were fully Americanized. They were nonetheless expected to marry an Indian and another Patel at that. (There are plenty of options given the vast number of Patels in India and America.)

As the film begins Ravi has just broken up with a white American gal he had been dating for two years, and which he had kept secret from his parents. Feeling the strong tug to marry as expected, Ravi asks his mother Champa to arrange a match. While fully arranged marriages are not practiced in America (and increasingly less so in India), the contemporary match-making efforts involve exchanges of bio-data and resumes from which a range of possible future spouses is picked and then dated. Either prospective partner can veto a second date and in the film either Ravi or his possible match do so every time.

After a year of futile dating across the United States and Canada, Ravi finally confesses his affection for his American girlfriend to his parents who with great disappointment ultimately consent to his renewed pursuit of a relationship with her. The film ends at this point leaving the audience unsure of whether that relationship culminates in marriage.

The film's amateurish documentary style suits it subject. Ravi acts the equivalent of an Indian-American nebbish while sister Geeta's off-camera wisecracks work to increase Ravi's discomfort. Roles are reversed, however, when mid-film Geeta admits she gone on 200 dates of her own without finding a match and again at the end she comes home after yet another futile effort to find love the "American way."

It's hard to know how much of the film is documentary and how much is scripted. The words and expressions of parents Visant and Champa, however, struck us as from the heart. Deeply committed to the life and practice of their cultural heritage but stuck all-too-successfully in their realization of the American dream, they can do no more than counsel their children and feel anguish at the impending changes. Ravi and Geeta, in turn, are far from actively rejecting their parents' culture but still are so enmeshed in the romanticized American conception of love-as-personal-fulfillment that they cannot break free.

Unlike The Namesake, Meet the Patels maintains a light-hearted approach to a serious subject. Like the earlier film, however, Meet the Patels epitomizes the relentless power of contemporary American culture, which in one generation undoes centuries of tradition.

Meet the Patels is filled with laugh-out-loud scenes of the peculiarities of Indian-American life and serious but not-so-funny discussions of the importance of skin color in the choice of a marriage partner. We thus recommend Meet the Patels to anyone who wonders about the behind-the-scenes lives of all those Indian owners of motels and 7-Elevens as well as to those who are curious about the the inter-generational experience of cultural transition in America.

07 January 2016

Joy ... The Movie

We went to see the movie Joy earlier this week. Its characterization by some as a "chick flick" is inaccurate; Joy fits neatly into the bio-pic genre. The tantalizing question, however, is: a bio-pic of whom?

We meet the eponymous Joy as a young child with exceptional craft-design skills. Without patterns she makes paper houses, fences, and characters of various sorts. Fast-forward to her adulthood where she lives as a divorcee with her grandmother, a barely-employed ex-husband, her divorced, soap-opera-addicted mother, her two young children, and--without warning--her between-relationships father. The balance of the story shows Joy against all odds--financial, relational, and legal--overcoming her life of dysfunction to become a multi-millionaire designer and producer of various household products. A female Horatio Alger.

The story seems too good to be true and some of the legal situations portrayed along the way made no sense. Indeed, the film is more inspirational than biographical. (The "Joy" from whose life the film drew its inspiration is Joy Mangano.)

Not bad but certainly not great, Joy is worth a watch if you need a decent way to spend two hours..

06 January 2016

Death By A Thousand Cuts:Trinity Western University's Opponents Won't Give Up

The Bar Council of British Columbia apparently believes it can wear down Trinity Christian University. A few weeks ago I posted here that the Chief Justice of the Supreme Court of British Columbia concluded that the provincial Bar Council had violated TWU's right to due process when it reversed its earlier decision permitting TWU law graduates to practice law in the province. As I explained,
The Bar Council of British Columbia, the province where TWU is located, managed to vote to permit TWU grads to practice their profession before they voted against it. Faced with such duplicity, TWU appealed to British Columbia's Supreme Court which reversed the second decision and effectively will permit TWU law graduates to be admitted to the bar of British Columbia.
The opinion of the Chief Justice did not, however, conclude that the Bar Council could not prohibit TWU grads from practicing law but only that it had to give the university an opportunity to present its case. Rather than picking up the gauntlet and providing TWU a fair shake before its members, the Bar Council has appealed to full court in an effort to overrule the Chief Justice's decision. You can read about it here.

The cost to TWU of these continuing to fight these "legal" battles is certainly substantial, not only in terms of fees for its counsel but in the diversion of institutional resources from the university's purpose--education. Of course, it's unlikely that the Bar Council gives a rip about education. It purposes are political and social and I'm confident it hopes that by fighting at every turn it will simply grind TWU into submission.

05 January 2016

Some Pictures of Pictures (and Other Stuff)




We spent the day at the Chicago Art Institute. There's only so much great stuff you can take in during a single visit, and it's even more unlikely that my readers would like to see many of the photographs from that visit, but I think folks might enjoy a few of them. 

Paperweights
Neapolitan Creche (100s of Figures!)


















The Resurrection by Cecco del Caravaggio

30 December 2015

"Numero Zero"


Image result for numero zero umberto eco



Lisa and Attilio were kind enough to add to my collection of Umberto Eco novels for Christmas. Numero Zero is Eco's most recent book and at 191 pages it's a short read.

Numero Zero most reminds me of the sprawling Foucault's Pendulum where fiction becomes reality because enough people believe that the fiction is true. A theme of fictional reality (or the reality of a fiction) makes sense when one recalls that Eco is a leading figure in the field of semiotics. The plot of Numero Zero is far more prosaic than Foucault's Pendulum and, as I take it, was a send-up of Italian politics (principally in the unnamed but looming figure of Silvio Berlusconi) and Italian newspapers.

Well-written and well-translated, the plot kept my interest but came to an abrupt and unsatisfying end. Of most interest to me was Eco's precise description of how the print media (the book was set in 1992) manipulates its readers even in its reporting of basic facts. The techniques of innuendo, selecting and ordering of quotes, arrangement of stories on a page, "retractions" of mistakes, etc. are fully and humorously described. Of course, in the current world of social media we can generally trust readers to deceive themselves, which makes the manipulator's job almost too easy.

All told, a nice story but not a great one. The Name of the Rose remains Eco's greatest work of fiction but Numero Zero is a nice snack for those who enjoy his work.

18 December 2015

More on Donations to Ministry Debtors

A week ago I posted a link to the online "Gleanings" section of Christianity Today. That article and my post, here, provided answers from a variety of folks to the question, "Should Christians Give Money to Ministries Deep in Debt?"

Yet that was only one of the questions reporter Morgan Lee posed. Since none of the others made it in her public report, I thought my readers might want to see them as well as my answers.
 
1.   Should Christians support ministries that are insolvent? Insolvency has two meanings: either a negative balance sheet (liabilities > assets) or a negative cash flow (expenses > income). The first is a yellow light but the second is a red one. I suspect many Christian organizations barely have a positive net worth and indeed don’t need to. Yet, they must be able to pay their bills.
2.   To what extent does the socio-economic level of the Christian donor matter? The poor are often less financially sophisticated than the wealthy but that is not always the case. In general, I believe church/denomination-run or approved ministries are good because a church or denomination should have better resources to evaluate the overall effectiveness  of a ministry than most individual Christians.
3.   What’s the relevance of the nature, size, or scope of the ministry? The nature of the ministry is crucial: is it consistent with the call of God on his people? Or is it a means of personal aggrandizement? Size and scope follow from the nature and place of the ministry and do not in themselves make a ministry worthwhile.
4.   To what extent do race and culture effect Christians’ answers to these questions? I don’t know but would interested to find out.
5.   To what extent are the reasons for a ministry’s financial problems relevant? The reason(s) for a ministry’s problems are very important. E.g., are they due to a one-off disaster or an honest error in judgment? Or are they caused by long-standing mismanagement? Even more important is the ministry’s response: is it denial and cover-up or is it straightforward and pro-active?
6.   At what point should a donor pull the plug? Lack of integrity, unethical conduct, and corruption are good and sufficient reasons not to give to a ministry. Legal troubles may reflect any of these fundamental problems but could also be caused by external forces/opposition over which the ministry has no control. Indeed, under certain conditions abroad, legal trouble could signal that the ministry is doing its job under difficult circumstances. Standing alone, a market-based approach to support of Christian ministries is inconsistent with the call to sacrificial obedience. Yet Christians are called to be stewards of the gifts, including assets, God has given them so ministry effectiveness is a legitimate concern.