There were least two important decisions on Indian law this term. (And, yes, that remains the proper term for this field of law in the United States -- https://www.law.cornell.edu/wex/american_indian_law.) The sovereign rights of the tribes (as "domestic dependent nations") were tested this year both as regards federal bankruptcy law and in connection with adoptions policy. The tribes came up 1 for 2. SCOTUS rejected their claims o f immunity from bankruptcy, but upheld the Indian Child Welfare Act. The former was an 8 to 1 decision. The only dissent came from Justice Gorsuch, who has become known as the most pro-Indian Justice since William O. Douglas. I am reminded of a statement that used to be attributed to Justice Douglas, re: his rule in deciding how to vote: "the individual over the government, the government over the corporation, the environment over everything, and give the Indians whatever they want." In this instance, even Justice Douglas might well...
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I wrote here in December about some philosophically weighty litigation, the Jevic Holding case. Now the Supreme Court of the United States has weighed in, so it is time for an update. This is a 6 to 2 judgment, with an opinion for the court by Justice Breyer, and a dissent written by Justice Thomas, for himself and Alito. The gist of the case is the conflict in bankruptcy law between the absolute priority rule (APR) and a practice known as the structured dismissal. The bankruptcy court in this case issued a structured dismissal even though it meant stiffing the possessors of a judgment debt, which would normally have priority over some of the debts the structure does pay. That debt came about due to a class action of 1,800 truck drivers over Jevic's violations of the Worker Adjustment and Retraining Notification Act (WARN). Jevic was a New Jersey based trucking company, the object of a leveraged buy-out by Sun Partners in 2006. The 'leveraging' thing wa...
On Tuesday morning of this week, the Supreme Court of the United States denied cert in Unite Here v. Trump Entertainment Resorts. In plain English, it denied appeal, which means that the decision of the court below stands. Chapter 1113 of the bankruptcy code allows the debtor, here the Trump entity, to reject a collectively bargained agreement (CBA) under certain circumstances. This seems to put bankruptcy law at odds with the National Labor Relations Act. The NLRA prohibits an employer from unilaterally changing the terms of a CBA even after the agreement has on its own terms expired. In this case the union, Unite Here Local 54, said that the bankruptcy court lacked subject matter jurisdiction to amend the contract terms in Trump's favor. But the bankruptcy court decided that the more specific law prevails over the more general: section 1113 holds here. So it granted Trump's motion. This is surely a case of what the presidential candidate who is a namesake of thi...