|
Main Paineframe posted:5-3, Kagan recused. This is a big win for ICE, and a big win for indefinite arbitrary detainment. Not completely. The statute has absolutely zero textual room to say "oh, you should get a bond hearing every 6 months," so it makes sense that a court can't just write that in and say "oh, this statute totally must have had a 6 month review period." The constitutional claims are still teed up, and 6 months may be the remedy, but the court has to actually evaluate the constitutional arguments now.
|
#
?
Feb 27, 2018 17:28
|
|
|
|
| # ? May 17, 2024 17:58 |
|
|
Mikl posted:Motherfucking what? Basically, the Supreme Court has previously ruled that it's unconstitutional to hold detainees indefinitely without a hearing, but there's nothing to really set out what "indefinitely" means in this instance, nor is there any clearly defined requirement for hearings. So practically speaking, ICE can just do whatever they want, and it's each detainee's individual responsibility to get a lawyer and file a habeas petition if they think they're being detained for an overly long period without due process. Rodriguez was held for three years before he saw a judge for the first time, even though he was a lawful permanent resident who was picked up by ICE because he'd been convicted on a misdemeanor drug possession charge. Obviously, the status quo is unacceptable. So the appeals court decided to draw the line for "prolonged" at six months, and require a bond hearing in which the government has to demonstrate that the detainee is a flight risk in order to extend the detention past that limit. However, the Supreme Court struck that down. They decided that since the text of the law doesn't say anything about a six-month limit or required bond hearings, there's no grounds for the appeals court to mandate that, and in fact they think the text of the law means that bail hearings are outright prohibited for these detainees. Where does that leave the plaintiff's constitutional claims? Punted back to the appeals court for another go under these new restrictions. Breyer is pissed, and read a reportedly-passionate dissent from the bench. Thomas thinks the court doesn't even have the authority to rule on immigration-related matters in the first place.
|
|
#
?
Feb 27, 2018 18:04
|
|
|
So if the can't legislate hearings, is the next step to just order immediate release when the court feels long detentions have violated a detainees' rights? Seems petty unlikely the conservatives would go for that, but did Kennedy leave any room for remedy at all, even with the punt? E: Kennedy is not Roberts :/ Stickman fucked around with this message at 21:15 on Feb 27, 2018 |
|
#
?
Feb 27, 2018 18:13
|
|
|
Main Paineframe posted:Basically, the Supreme Court has previously ruled that it's unconstitutional to hold detainees indefinitely without a hearing, but there's nothing to really set out what "indefinitely" means in this instance, nor is there any clearly defined requirement for hearings. So practically speaking, ICE can just do whatever they want, and it's each detainee's individual responsibility to get a lawyer and file a habeas petition if they think they're being detained for an overly long period without due process. Rodriguez was held for three years before he saw a judge for the first time, even though he was a lawful permanent resident who was picked up by ICE because he'd been convicted on a misdemeanor drug possession charge. Let's go Thomas
|
|
#
?
Feb 27, 2018 18:26
|
|
|
Main Paineframe posted:However, the Supreme Court struck that down. They decided that since the text of the law doesn't say anything about a six-month limit or required bond hearings, there's no grounds for the appeals court to mandate that, and in fact they think the text of the law means that bail hearings are outright prohibited for these detainees. Where does that leave the plaintiff's constitutional claims? Punted back to the appeals court for another go under these new restrictions. Let me quibble slightly: 1. There is no grounds for the appeals court to construe the statute to require 6 month hearings.. 2. The constitutional claims don't have any "new restrictions" - they were never ruled on below. Stickman posted:So if the can't legislate hearings, is the next step to just order immediate release when the court feels long detentions have violated a detainees' rights? Seems petty unlikely the conservatives would go for that, but did Roberts leave any room for remedy at all, even with the punt? The court could mandate hearings as a judicial remedy for the constitutional violation.
|
|
#
?
Feb 27, 2018 18:39
|
|
|
ulmont posted:Pretty good. They filed it in the Northern District of Texas, so they probably get a win until SCOTUS. That's exactly why they file these (and a lot of the gently caress Obama) lawsuits in Texas. They know they'll win due to the federal courts there being so stacked with right wingers that the other side will have no choice but to try their luck with the SCOTUS. hobbesmaster posted:From SCOTUSblog's live thread Sounds like the Ninth should/will come back with "ok, all immigrants have a right to counsel and cannot be held indefinitely without bail because holding people indefinitely and never giving them a hearing is hella unconstitutional." Maybe?
|
|
#
?
Feb 27, 2018 18:54
|
|
|
lmao Patchak, that's an all-time split
|
|
#
?
Feb 27, 2018 20:22
|
|
|
So what's this I hear about if the public sector union free-rider case is decided in favor of the RTW assholes that it means that sympathetic strikes are no longer illegal? I heard something to that effect on NPR this morning or last night and was like 'oh, there's a can of worms.'
|
|
#
?
Feb 27, 2018 20:58
|
|
|
Oracle posted:So what's this I hear about if the public sector union free-rider case is decided in favor of the RTW assholes that it means that sympathetic strikes are no longer illegal? I heard something to that effect on NPR this morning or last night and was like 'oh, there's a can of worms.' Not a chance. Even if it declared all union activity as speech banning sympathy strikes would just be upheld as a reasonable time, place and manner restriction narrowly tailored to a government interest in worst case some invented public safety standard that bans basically all strike action atelier morgan fucked around with this message at 21:11 on Feb 27, 2018 |
|
#
?
Feb 27, 2018 21:09
|
|
|
Oracle posted:So what's this I hear about if the public sector union free-rider case is decided in favor of the RTW assholes that it means that sympathetic strikes are no longer illegal? I heard something to that effect on NPR this morning or last night and was like 'oh, there's a can of worms.' IIRC, it's that There is an argument to be made that unions might just unilaterally stop abiding by those restrictions and stop obeying authorities if they're squeezed down too hard, as the early workers' movement did in the first place. But I think we're a long way away from that with today's weak unions, and the  culture of the mainstream media isn't really interested in talking about that yet.
|
|
#
?
Feb 27, 2018 22:47
|
|
|
Main Paineframe posted:IIRC, it's that Huh; they made it sound like it was some kind of tit for tat that the unions agreed to give up sympathy striking in exchange for free rider fees for their services and that negating the latter would lead to laws against the former being rendered null and void.
|
|
#
?
Feb 27, 2018 22:49
|
|
|
ulmont posted:Not completely. The statute has absolutely zero textual room to say "oh, you should get a bond hearing every 6 months," so it makes sense that a court can't just write that in and say "oh, this statute totally must have had a 6 month review period." The constitutional claims are still teed up, and 6 months may be the remedy, but the court has to actually evaluate the constitutional arguments now. Right. The 9th Circuit tried to do this under the doctrine of constitutional avoidance: if there’s a plausible reading of the law that doesn’t violate the Constitution, go with that. (This doctrine is how Roberts upheld the ACA, for what it’s worth.) The problem is that “bond hearings every six months” is not a plausible reading of the law: the law doesn’t say anything like this, and the six months figure is completely made up. The right approach (which seems dictated by current precedent but who knows) is that the law is unconstitutional because it allows an unconstitutional indefinite detention; the narrowest remedy for that fault would be to impose a requirement for periodic review, say, every six months. The difference may seem pedantic, but, well, that’s constitutional law. It is totally fair to be mad that this means that real people will be sitting in camps indefinitely while appeals courts bicker about the right way to resolve the case.
|
|
#
?
Feb 28, 2018 02:50
|
|
|
Oracle posted:Huh; they made it sound like it was some kind of tit for tat that the unions agreed to give up sympathy striking in exchange for free rider fees for their services and that negating the latter would lead to laws against the former being rendered null and void. Nah. I don't know what the heck NPR is talking about, but there was never any such agreement, and they're not really related at all. In the first place, the ban on sympathy strikes was part of a larger crackdown on labor as a response to the post-WWII labor resurgence, and was pushed through despite union opposition to the bill. Meanwhile, free rider fees have a more complicated history but are basically one of the few remaining vestiges of "closed shop" union contracts after the closed shop was banned by right-to-work laws.
|
|
#
?
Feb 28, 2018 15:56
|
|
|
I'd like to hear one of the thread regular lawyer's take on Patchak.
|
|
#
?
Mar 1, 2018 05:17
|
|
|
Ogmius815 posted:I'd like to hear one of the thread regular lawyer's take on Patchak. 1. lovely move by Congress. 2. Breyer's concurrence (if the suit is based on "you didn't have authority given by Congress to do X" and Congress says "gently caress you yes they did", that should end things even before getting to the jurisdictional part) together with Ginsburg's and Sotomayor's concurrences (the original suit could only be maintained because Congress had waived its sovereign immunity; Congress can retract that waiver) convince me that this case is not the one that will end the Republic.
|
|
#
?
Mar 1, 2018 20:30
|
|
|
So once Janus v AFSCME declares that public sector freeriding is cool and good, does that mean we can all stop paying our taxes because we disagree with military spending?
|
|
#
?
Mar 1, 2018 23:15
|
|
|
Since it matters again, what legal ground does right-to-freeload stand on? Is it just "we chose to allow unions to exist, so we get to make the rules" or is there a deeper principle? E: To clarify, I'm not talking right-to-work, that's pretty well established. I'm asking about the duty to represent freeloaders. Harik fucked around with this message at 01:45 on Mar 2, 2018 |
|
#
?
Mar 2, 2018 01:38
|
|
|
I don't think anyone thinks a right to freeload exists, just that the US government isn't going to bother to create dual track pay scales one union and one non-union.
|
|
#
?
Mar 2, 2018 01:52
|
|
|
Harik posted:Since it matters again, what legal ground does right-to-freeload stand on? Is it just "we chose to allow unions to exist, so we get to make the rules" or is there a deeper principle? As I understand it, the reason that unions are obliged to represent non-members isn’t that they are directly required to, it's that the law only compels employers to negotiate with a union if that union is the exclusive representative of all employees.
|
|
#
?
Mar 2, 2018 02:17
|
|
|
Zoran posted:As I understand it, the reason that unions are obliged to represent non-members isn’t that they are directly required to, it's that the law only compels employers to negotiate with a union if that union is the exclusive representative of all employees. Looks like the legal reason is, as always, racism. White unions wouldn't accept non-whites so they got forced to. Funny how much labor law comes down to people being poo poo to anyone who doesn't look like them.
|
|
#
?
Mar 2, 2018 10:54
|
|
|
twodot posted:I don't think anyone thinks a right to freeload exists, just that the US government isn't going to bother to create dual track pay scales one union and one non-union. The US government already passed a law making union membership and all union fees optional for federal workers. And yes, they didn't create dual track pay scales or rules that apply to one group of employees but not another. Lots of federal workers get a free ride courtesy of the AFGE. This case mainly applies to state and local government employees.
|
|
#
?
Mar 2, 2018 14:55
|
|
|
Harik posted:Since it matters again, what legal ground does right-to-freeload stand on? Is it just "we chose to allow unions to exist, so we get to make the rules" or is there a deeper principle? The argument is that since we are negotiating with the state rather than a private employer, and since that can also involve needed tax increases, having to adjust priorities, etc depending on whether we beat up on "management" then that gets into politics, so the union, which the "freerider" is being forced against their will to pay dues to, is engaging in political speech using their money. This argument becomes stronger if it focuses on the union's political activities and spending on opposing people they don't like and helping the campaigns of people who they think will be kinder at the bargaining table. None of this applies for private unions because management is a private company and the union can't spend money to defeat management at the polls. Their options at some point are reduced to striking and we have the traditional pressure of whether its worth it to management and labor to stop work. This legal issue is uniquely a problem for public sector unions because the union can and will decide to try to defeat management politically if they think they can. Rigel fucked around with this message at 15:15 on Mar 2, 2018 |
|
#
?
Mar 2, 2018 15:12
|
|
|
Harik posted:Since it matters again, what legal ground does right-to-freeload stand on? Is it just "we chose to allow unions to exist, so we get to make the rules" or is there a deeper principle? Freeloaders will benefit from some union activities regardless. Say the union lobbies for better safety equipment and gets new guardrails or something put in at the worksite. Those aren't union-only guardrails - they benefit everyone, including non-union members. Even for things that are available to individual employees, the employer may find it more convenient to put everyone under the same plan than to deal with the extra administration requirements of a two-tier system. For example, if the union wins a better health insurance plan, the company's unlikely to bother with the trouble of getting a second insurance plan for non-union employees, so they'll probably just put everyone on the same plan and maybe charge the non-union employees more. Likewise, if the union wins a shorter working day, the company is unlikely to bother to keep non-union workers there after everyone else leaves, especially if most of the employees are still union. There is also a duty to fairly represent all employees in a bargaining unit, regardless of whether they're a union member or not. This "duty of fair representation" doesn't come directly from law, but was created by a series of Supreme Court rulings in the 1940s, starting with Steele v Louisville & Nashville Railway Co. While it seems out-of-place to us modern-day observers, it made a lot of sense at the time: whites-only or majority-white unions were negotiating collective bargaining agreements that privileged white union workers and badly hosed over the black workers. The Supreme Court held several times that the union represented the entire class of workers that it covered, not just the union members. For example, a legally-recognized Shitposter's Union has the power under federal law to bargain on behalf of all shitposters under the collective bargaining agreement regardless of union membership, but in return they also have the responsibility to treat all shitposters fairly regardless of membership status. A modern case that illustrates this would be Letter Carriers Branch 6000 v NLRB, where the union negotiated the ability to decide the days-off policy by a referendum of union members, and the board ruled that this only considered the interests of union members and thus breached the duty to fairly represent non-members. Since that duty was created entirely in the courtroom, you pretty much have to read old cases to get a sense for it.
|
|
#
?
Mar 2, 2018 18:32
|
|
|
Rigel posted:The argument is that since we are negotiating with the state rather than a private employer, and since that can also involve needed tax increases, having to adjust priorities, etc depending on whether we beat up on "management" then that gets into politics, so the union, which the "freerider" is being forced against their will to pay dues to, is engaging in political speech using their money. This argument becomes stronger if it focuses on the union's political activities and spending on opposing people they don't like and helping the campaigns of people who they think will be kinder at the bargaining table. If it flies, wouldn't this apply to individual employees as well? They'd be completely unable to negotiate for any sort of change in compensation or benefits without being engaged in "political speech". Not that they'd be able to anyway, considering that the government is, by definition, the most powerful negotiating agency.
|
|
#
?
Mar 2, 2018 18:52
|
|
|
Main Paineframe posted:There is also a duty to fairly represent all employees in a bargaining unit, regardless of whether they're a union member or not. This "duty of fair representation" doesn't come directly from law, but was created by a series of Supreme Court rulings in the 1940s, starting with Steele v Louisville & Nashville Railway Co. Main Paineframe posted:Since that duty was created entirely in the courtroom, you pretty much have to read old cases to get a sense for it. This is true for Federal law but ignores State labor laws. From Janus: quote:JUSTICE ALITO: Does -- does the Constitution require states to demand that unions provide services for non-members? For example, is there a constitutional requirement for a union to handle the grievances of non-members, or is that something that's imposed by state law?
|
|
#
?
Mar 2, 2018 18:58
|
|
|
Stickman posted:If it flies, wouldn't this apply to individual employees as well? They'd be completely unable to negotiate for any sort of change in compensation or benefits without being engaged in "political speech". Not that they'd be able to anyway, considering that the government is, by definition, the most powerful negotiating agency. No. Say this individual freeloader is a teacher. The argument is that the freeloader could think they are being paid fairly enough and don't want the state to raise property taxes or close the library to pay the teachers more money. The individual without representation can say "nah im good, you need the money for other political priorities for our community". It becomes stronger if they say "wait a second, I like what Joe Smith is doing on the teacher board, but the union is using some of my dues to try to defeat him?! This is bullshit!" Rigel fucked around with this message at 20:46 on Mar 2, 2018 |
|
#
?
Mar 2, 2018 20:42
|
|
|
Stickman posted:If it flies, wouldn't this apply to individual employees as well? They'd be completely unable to negotiate for any sort of change in compensation or benefits without being engaged in "political speech". Not that they'd be able to anyway, considering that the government is, by definition, the most powerful negotiating agency. The thing at issue in Janus isn't participating in political speech, it's compelling employees to fund political speech that they may not agree with.
|
|
#
?
Mar 2, 2018 21:08
|
|
|
Main Paineframe posted:The thing at issue in Janus isn't participating in political speech, it's compelling employees to fund political speech that they may not agree with. But there's already an option for workers to opt out of all union benefits that aren't directly part of collective bargaining and only pay dues in that regard. The question just comes down to "Is collectively bargaining with the government political speech?" and it seems like the answer should be no, but this is America and "Should we not pay starvation wages?" is a political question here.
|
|
#
?
Mar 2, 2018 21:21
|
|
|
CellBlock posted:But there's already an option for workers to opt out of all union benefits that aren't directly part of collective bargaining and only pay dues in that regard. The question just comes down to "Is collectively bargaining with the government political speech?" and it seems like the answer should be no, but this is America and "Should we not pay starvation wages?" is a political question here. I'm still flabbergasted at the insistence that employment topics inherently involve political speech in the US despite the neoliberal "this government office needs to pay it's own way" philosophy under which we operate so many of our essential public services. What I Don't Like Is Political, What I Like Is About Freedom
|
|
#
?
Mar 2, 2018 22:58
|
|
|
CellBlock posted:The question just comes down to "Is collectively bargaining with the government political speech?" and it seems like the answer should be no, but this is America and "Should we not pay starvation wages?" is a political question here. 95% (or more?) of the time, it probably isn't, and we're talking about a normal union vs management negotiation, but maybe where "management" is kinda weirdly influenced by union dues funding who wins the next election if they dont like the old management. What kinda fucks it up are the weird outlier cases where the union truly does go off the loving rails and ends up bankrupting a community by getting their guys into the board and bleeding the community dry for awesome firefighter and police benefits or whatever that the community can't really afford. It doesn't happen nearly as often as the right wing claims it does, but we also can't say its never happened, so its now out there as an argument that collective bargaining with the city is political speech.
|
|
#
?
Mar 2, 2018 23:16
|
|
|
CellBlock posted:But there's already an option for workers to opt out of all union benefits that aren't directly part of collective bargaining and only pay dues in that regard. The question just comes down to "Is collectively bargaining with the government political speech?" and it seems like the answer should be no, but this is America and "Should we not pay starvation wages?" is a political question here. Sure, I agree. But the Supreme Court is going to rule against unions, so might as well get familiar with the grounds they're going to rule on.
|
|
#
?
Mar 2, 2018 23:22
|
|
|
Potato Salad posted:I'm still flabbergasted at the insistence that employment topics inherently involve political speech in the US despite the neoliberal "this government office needs to pay it's own way" philosophy under which we operate so many of our essential public services. See also the label "Political Correctness".
|
|
#
?
Mar 2, 2018 23:24
|
|
|
Rigel posted:None of this applies for private unions because management is a private company and the union can't spend money to defeat management at the polls. Their options at some point are reduced to striking and we have the traditional pressure of whether its worth it to management and labor to stop work. This legal issue is uniquely a problem for public sector unions because the union can and will decide to try to defeat management politically if they think they can.
|
|
#
?
Mar 2, 2018 23:33
|
|
|
Dead Reckoning posted:Not sure I agree with this. A union can always decide to defeat management politically, as long as labor laws are A Thing. If a union throws their support behind a ballot measure that says, "management must provide X benefit to workers", is that not political speech under this definition? That is hypothetically true, but I think it absolutely fails the unofficial, "oh, come on!", eyeroll test if this doesn't. If the teamsters want to support an increase in the minimum wage (which eventually makes it up to the ladder and helps them), its not going to put the employer out of business or severely harm them, like say what happened to the city of Vallejo.
|
|
#
?
Mar 2, 2018 23:58
|
|
|
duz posted:See also the label "Political Correctness". It helped me understand some folks a lot better when I switched their usage of "political correctness" with "respect."
|
|
#
?
Mar 3, 2018 01:24
|
|
|
cis autodrag posted:They kind of do. The whole point is that even if you refuse to join and don't contribute, you still benefit from the wage and benefits the union negotiates as an employer is not gonna maintain a separate pay scale and benefit set for the two assholes in the office who won't join the union. Do you have a good link for this? My union is laying groundwork now for the post-Janus future so any info that can lead us to strategies that help us stay effective (or just alive) will be huge in turning this poo poo sandwich into a sustainable meal.
|
|
#
?
Mar 4, 2018 21:18
|
|
|
 Opinions! TEXAS v. NEW MEXICO ET AL. Brief Background: [Colorado, New Mexico, and Texas are members of the Rio Grande Compact to settle their water right disputes over the Rio Grande (and, downstream, to fulfill US treaty obligations with Mexico and Texas-New Mexico further downstream commitments). Texas sued New Mexico asserting New Mexico users were siphoning water off in a way not considered by the downstream contracts. The US intervened. The question is if the US can pursue claims in an Original Action before the Supreme Court. This comes up as the Supreme Court "reviews exceptions" to the Special Master's report (i.e., makes the Special Master give an opinion that then each side can essentially appeal to the Supreme Court).] Holding: Will Rogers reportedly called the Rio Grande “the only river I ever saw that needed irrigation.” In its long journey from the Colorado Rockies to the Gulf of Mexico, many and sometimes competing demands are made on the river’s resources. In an effort to reconcile some of those demands, Colorado, New Mexico, and Texas, acting with the federal government’s assent, signed the Rio Grande Compact in the 1930s. In today’s lawsuit, Texas claims that New Mexico has defied the Compact. But at this stage in the proceedings we face only a preliminary and narrow question: May the United States, as an intervenor, assert essentially the same claims Texas already has? We believe it may. ... Our analysis begins with the Constitution. Its Compact Clause provides that “[n]o State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State.” Art. I, §10, cl. 3. Congress’s approval serves to “prevent any compact or agreement between any two States, which might affect injuriously the interests of the others.” Florida v. Georgia, 17 How. 478, 494 (1855). It also ensures that the Legislature can “check any infringement of the rights of the national government.” 3 J. Story, Commentaries on the Constitution of the United States §1397, p. 272 (1833) (in subsequent editions, §1403). So, for example, if a proposed interstate agreement might lead to friction with a foreign country or injure the interests of another region of our own, Congress may withhold its approval. But once Congress gives its consent, a compact between States—like any other federal statute—becomes the law of the land. Texas v. New Mexico, 462 U. S. 554, 564 (1983). ... [W]e have sometimes permitted the federal government to participate in compact suits to defend “distinctively federal interests” that a normal litigant might not be permitted to pursue in traditional litigation. . . . [S]everal considerations taken collectively persuade us that the United States may pursue the particular claims it has pleaded in this case: First, the Compact is inextricably intertwined with the Rio Grande Project and the Downstream Contracts. . . . Second, New Mexico has conceded that the United States plays an integral role in the Compact’s operation. . . . Third, a breach of the Compact could jeopardize the federal government’s ability to satisfy its treaty obligations. . . . Fourth, the United States has asserted its Compact claims in an existing action brought by Texas, seeking substantially the same relief and without that State’s objection. . . . Taken together, we are persuaded these factors favor allowing the United States to pursue the Compact claims it has pleaded in this original action. Lineup: Gorsuch, unanimous. https://www.supremecourt.gov/opinions/17pdf/141orig_f204.pdf U. S. BANK N. A., TRUSTEE, BY AND THROUGH CWCAPITAL ASSET MANAGEMENT LLC v. VILLAGE AT LAKERIDGE, LLC Brief Background: Lakeridge submitted a [bankruptcy] reorganization plan, proposing to impair the interests of both U. S. Bank and MBP. U. S. Bank refused the offer, thus blocking Lakeridge’s option for reorganization through a fully consensual plan. See 11 U. S. C. §1129(a)(8). Lakeridge then turned to the so-called “cramdown” plan option for imposing a plan impairing the interests of a non-consenting class of creditors. See §1129(b). Among the prerequisites for judicial approval of such a plan is that another impaired class of creditors has consented to it. See §1129(a)(10). But crucially here, the consent of a creditor who is also an “insider” of the debtor does not count for that purpose. . . . Here, MBP (an insider of Lakeridge) could not provide the partial agreement needed for a cramdown plan, and Lakeridge’s reorganization was thus impeded. MBP sought to transfer its claim against Lakeridge to a non-insider who could agree to the cramdown plan. Kathleen Bartlett, an MBP board member and Lakeridge officer, offered MBP’s claim to Robert Rabkin, a retired surgeon, for $5,000. Rabkin purchased the claim and consented to Lakeridge’s proposed reorganization. U. S. Bank objected, arguing that Rabkin was a nonstatutory insider because he had a “romantic” relationship with Bartlett and the purchase was not an arm’s-length transaction. The Bankruptcy Court rejected U. S. Bank’s argument. The Ninth Circuit affirmed. Viewing the Bankruptcy Court’s decision as one based on a finding that the relevant transaction was conducted at arm’s length, the Ninth Circuit held that that finding was entitled to clear error review, and could not be reversed under that deferential standard. Holding: The Bankruptcy Code places various restrictions on anyone who qualifies as an “insider” of a debtor. The statutory definition of that term lists a set of persons related to the debtor in particular ways. See 11 U. S. C. §101(31). Courts have additionally recognized as insiders some persons not on that list—commonly known as “nonstatutory insiders.” The conferral of that status often turns on whether the person’s transactions with the debtor (or another of its insiders) were at arm’s length. In this case, we address how an appellate court should review that kind of determination: de novo or for clear error? We hold that a clear-error standard should apply. ... To decide whether a particular creditor is a nonstatutory insider, a bankruptcy judge must tackle three kinds of issues—the first purely legal, the next purely factual, the last a combination of the other two. And to assess the judge’s decision, an appellate court must consider all its component parts, each under the appropriate standard of review. . . . Initially, a bankruptcy court must settle on a legal test to determine whether someone is a non-statutory insider (again, a person who should be treated as an insider even though he is not listed in the Bankruptcy Code). But that choice of standard really resides with the next court: As all parties agree, an appellate panel reviews such a legal conclusion without the slightest deference. . . . Along with adopting a legal standard, a bankruptcy court evaluating insider status must make findings of what we have called “basic” or “historical” fact— addressing questions of who did what, when or where, how or why. . . . By well-settled rule, such factual findings are reviewable only for clear error—in other words, with a serious thumb on the scale for the bankruptcy court. . . . What remains for a bankruptcy court, after all that, is to determine whether the historical facts found satisfy the legal test chosen for conferring non-statutory insider status. We here arrive at the so-called “mixed question” of law and fact at the heart of this case. ... [T]he mixed question becomes: Given all the basic facts found, was Rabkin’s purchase of MBP’s claim conducted as if the two were strangers to each other? That is about as factual sounding as any mixed question gets. Indeed, application of the Ninth Circuit’s arm’s length legal standard really requires what we have previously described as a “factual inference[ ] from undisputed basic facts.” . . . Just to describe that inquiry is to indicate where it (primarily) belongs: in the court that has presided over the presentation of evidence, that has heard all the witnesses, and that has both the closest and the deepest understanding of the record—i.e., the bankruptcy court. ... The Court of Appeals therefore applied the appropriate standard in reviewing the Bankruptcy Court’s determination that Rabkin did not qualify as an insider because his transaction with MBP was conducted at arm’s length. A conclusion of that kind primarily rests with a bankruptcy court, subject only to review for clear error. We accordingly affirm the judgment below. Lineup: Kagan, unanimous. Concurrence by Kennedy. Concurrence by Sotomayor, joined by Kennedy, Thomas, and Gorsuch.  Notes from other Opinions: Kennedy: As the Court’s opinion makes clear, courts of appeals may continue to elaborate in more detail the legal standards that will govern whether a person or entity is a nonstatutory insider under the Bankruptcy Code. . . . The Court’s holding should not be read as indicating that the non-statutory insider test as formulated by the Court of Appeals is the proper or complete standard to use in determining insider status. Today’s opinion for the Court properly limits its decision to the question whether the Court of Appeals applied the correct standard of review, and its opinion should not be read as indicating that a transaction is arm’s length if the transaction was negotiated simply with a close friend, without broader solicitation of other possible buyers. Sotomayor: The Court’s discussion of the standard of review []begs the question of what the appropriate test for determining non-statutory insider status is. I do not seek to answer that question, as the Court expressly declined to grant certiorari on it. I have some concerns with the Ninth Circuit’s test, however, that would benefit from additional consideration by the lower courts. ... As the Ninth Circuit interpreted the Code, “[a] creditor is not a non-statutory insider unless: (1) the closeness of its relationship with the debtor is comparable to that of the enumerated insider classifications in [11 U. S. C.] §101(31), and (2) the relevant transaction is negotiated at less than arm’s length.” ... It is not clear to me, however, that the Ninth Circuit has explained how this two-prong test is consistent with the plain meaning of the term “insider” as it appears in the Code. The concept of “insider” generally rests on the presumption that a person or entity alleged to be an insider is so connected with the debtor that any business conducted between them necessarily cannot be conducted at arm’s length. ... In contrast, under prong two of the Ninth Circuit’s test, an individual who is similar to, but does not fall precisely within, one of the categories of insiders listed in §101(31) will not be considered an insider and will be able to vote under §1129(a)(10) so long as the transaction relevant to the bankruptcy proceeding is determined to have been conducted at arm’s length. This would include, for example, a romantic partner of an insider, even one who in all or most respects acts like a spouse. ... I can conceive of at least two possible legal standards that are consistent with the understanding that insider status inherently presumes that transactions are not conducted at arm’s length. First, it could be that the inquiry should focus solely on a comparison between the characteristics of the alleged non-statutory insider and the enumerated insiders, and if they share sufficient commonalities, the alleged person or entity should be deemed an insider regardless of the apparent arm’s-length nature of any transaction. . . . Second, it could be that the test should focus on a broader comparison that includes consideration of the circumstances surrounding any relevant transaction. If a transaction is determined to have been conducted at less-than arm’s length, it may provide strong evidence in the context of the relationship as a whole that the alleged nonstatutory insider should indeed be considered an insider. Relatedly, if the transaction does appear to have been undertaken at arm’s length, that may be evidence, considered together with other aspects of the parties’ relationship, that the alleged non-statutory insider should not, in fact, be deemed an insider. Neither of these conceptions reflects the Ninth Circuit’s test. ... This is all to say that I hope that courts will continue to grapple with the role that an arm’s-length inquiry should play in a determination of insider status. In the event that the appropriate test for determining non-statutory insider status is different from the one that the Ninth Circuit applied, and involves a different balance of legal and factual work than the Court addresses here, it is possible I would view the applicable standard of review differently. Because I do not read the Court’s opinion as foreclosing that result, I join it in full. https://www.supremecourt.gov/opinions/17pdf/15-1509_4fbi.pdf [internal citations inconsistently omitted throughout]
|
|
#
?
Mar 5, 2018 16:39
|
|
|
It's funny how I can pick out a Gorsuch opinion in only a few sentences because it reads like a sixth-grader wrote it. "May [rhetorical question]? We believe it may."
|
|
#
?
Mar 5, 2018 16:41
|
|
|
"Our analysis begins with the Constitution." oh ok thanks neil
|
|
#
?
Mar 5, 2018 16:44
|
|
|
|
| # ? May 17, 2024 17:58 |
|
|
VitalSigns posted:It's funny how I can pick out a Gorsuch opinion in only a few sentences because it reads like a sixth-grader wrote it. Tbf you can pick it out in the first two words in this case.
|
|
#
?
Mar 5, 2018 16:51
|
|
