As the Supreme Court nears double digit months without a ninth Justice, the end may be in sight. Now that the election is over and President-elect Trump is beginning to fill his soon-to-be cabinet positions, judicial nomination buzz is warming up, and attention will be turning from the Senate’s blockage of Judge Merrick Garland’s nomination to potential Supreme Court nominations under the incoming administration. Still, the Court must wait until at least January—and more likely some time later—to have a full bench. Until then, the eight currently serving Justices will continue to hear cases.
In December, the Court will continue its pattern of hearing seemingly low-impact cases that primarily involve procedural or technical issues, such as the bankruptcy case Czyzewski v. Jevic Holding Corporation. But it will also hear several cases involving much more politically charged issues. In Jennings v. Rodriguez, for instance, the ever-contested issue of immigration will make an appearance at the Court as the Justices decide a class-action lawsuit about the right of detained immigrants to bail. And in McCrory v. Harris and Bethune-Hill v. Virginia State Board of Elections, the Court will address the use of race in redistricting once again. Some cases will also have serious and wide-reaching consequences—both for the parties in the cases and others. If the Court sets new requirements for how states may determine whether an individual has an intellectual disability in capital cases in this month’s Moore v. Texas, it could not only result in the petitioner being removed from death row, but also keep other individuals from facing execution in the future.
As the Court gears up to hear its last slate of arguments in 2016, On the Docket’s preview gives a brief look at what each of the month’s cases is about, what the parties may argue, and what the expected impact of the cases may be. As always, remember to check back when opinions are handed down for scholarly commentary from many of the greatest minds in the relevant legal fields!
November 28
Beckles v. United States
No. 15-8544; 11th Cir.
In 2007, after police searched the apartment of Travis Beckles’s girlfriend and found a sawed-off shotgun under a mattress, Beckles was arrested and charged with possession of a firearm by a felon. Because Beckles had a history of at least three qualifying drug offenses under the Armed Career Criminal Act (“ACCA”), his sentence range was enhanced from a maximum of ten years to a range of fifteen years to life in prison. Beckles’s sentence was calculated under the U.S. Sentencing Guidelines. The official commentary to the Guidelines at the time of Beckles’s sentencing listed possession of a sawed-off shotgun as a “crime of violence,” and commission of a crime of violence is one element required for a criminal to be considered a career offender under the Guidelines. Because Beckles had committed a crime of violence under the Guidelines and their commentary, the district court considered him a career criminal. Based on the applicable sentencing range for him under the Guidelines—360 months to life in prison—the district court sentenced Beckles to 360 months in prison.
After a series of other procedural matters that included a previous trip to the Supreme Court and a sentence reduction to 216 months, Beckles now finds his case once again before the highest court in the land. The Court granted his petition for a writ of certiorari to answer three questions: 1) whether the vagueness doctrine renders the “residual clause” of Section 4B1.2(a)(2) of the Sentencing Guidelines void; 2) if it does, whether the invalidation of the residual clause applies retroactively; and 3) whether Beckles’s conviction for possession of a sawed-off shotgun counts as a crime of violence under the Sentencing Guidelines after the Court’s recent decision in Johnson v. United States.
The residual clause of Section 4B1.2(a)(2) of the 2006 Guidelines defined as a crime of violence any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”1 Beckles argues that the residual clause is unconstitutionally vague because the Court held in Johnson that a clause in the ACCA identical to the one at issue here was unconstitutionally vague and because the Section 4B1.2(a)(2) residual clause causes the Court to go through the same analysis as the ACCA’s unconstitutionally vague clause. Beckles supports his argument by pointing out that the majority view among courts is that the Court’s ruling in Johnson means that the Section 4B1.2(a)(2) residual clause is unconstitutionally vague just like the ACCA clause. The United States argues that Beckles’s vagueness argument will not save him, though, because the district court did not rely on the residual clause when determining that Beckles had committed a crime of violence. Rather, it relied on the Guidelines’ commentary’s express inclusion of possession of a sawed-off shotgun as a crime of violence. The government also contends that the commentary’s reference to possession of a sawed-off shotgun effectively added possession of a sawed-off shotgun to the definition of a crime of violence under the Guidelines generally, and not just through the residual clause. Finally, the government argues that even if the reference to possession of a sawed-off shotgun did refer only to the residual clause, the residual clause was not vague with respect to that offense because the offense was expressly listed in the Guidelines.
On the second question, Beckles argues that the Johnson rule—which he contends invalidates the residual clause—applies retroactively because, based on the legal context at the time of his final conviction in 2009, it is a new rule when applied to him, and because it is a substantive rule. Beckles maintains that the Johnson rule applied to Section 4B1.2(a)(2) is a substantive rule because it changes what counts as a crime of violence under the Guidelines and affects whether specific offenders may be classified and punished as career offenders. The United States, on the other hand, argues that the Johnson rule as applied here would be a procedural rule and thus would not apply retroactively to Beckles. It contends that the Johnson rule applied here would not change the permissible sentence a court could give Beckles, but would only affect the court’s consideration and explanation of the sentence. The meaning the rule would therefore be procedural rather than substantive, it argues, and thus would not be retroactive.
Turning to the third question, Beckles argues that because Johnson invalidates the residual clause, his conviction of possession of a sawed-off shotgun is no longer a crime of violence under the Guidelines, as it does not fit within the remaining definition of a crime of violence after the residual clause has been removed and is not one of the crimes of violence specifically listed in the Guidelines. The United States does not have an argument specifically addressed to the third question in its brief, but that may be because if it succeeds on one of its other arguments, the third question would be rendered moot.
The impact of this case is likely to be minimal regardless of who wins. Earlier this year, the U.S. Sentencing Commission amended the Guidelines, removing the residual clause and adding “use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a)” to the list of crimes of violence.2 Therefore, the outcome of this case is likely to have little prospective effect, likely impacting only Beckles and others who were sentenced as career offenders following conviction for a crime considered a violent crime under the now-defunct residual clause. If the Court decides that Beckles’s sentencing as a career offender was based on the residual clause and decides to apply Johnson to retroactively invalidate the residual clause, Beckles and other prisoners sentenced as career offenders under the residual clause may be able to obtain resentencing. However, if the United States wins and the Court decides that Beckles’s sentencing was not based on the residual clause or if the Court decides not to apply the rule retroactively, Beckles and other similarly situated will not be so fortunate to receive a resentencing. Regardless though, the Sentencing Commission’s recent amendments will likely limit the practical prospective effect of this decision.
1. U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (U.S. Sentencing Comm’n 2006).
2. U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines 4–5, 7 (2016). This provision of the U.S. Code includes sawed-off shotguns. See 26 U.S.C. § 5845(a).
November 29
Moore v. Texas
No. 15-797; Tex. Crim. App.
In 1980, Bobby James Moore was sentenced to death following a murder conviction for shooting a store clerk during a robbery. After multiple motions, habeas petitions, and a denied petition for writ of certiorari, Moore filed a third habeas petition arguing for the first time that he was intellectually disabled. The Texas state habeas trial court found that Moore was intellectually disabled and therefore could not be executed under the Supreme Court’s decision in Atkins v. Virginia.1 The habeas court recommended that the Court of Criminal Appeals grant Moore habeas relief, but the Court of Criminal Appeals did not accept the habeas court’s decision and denied Moore’s claim that he should be exempt from execution based on an intellectual disability. The Court of Criminal Appeals stated that the habeas court had erred in applying a recent medical standard from a manual published in 2010 to determine whether Moore had an intellectual disability. The Court of Criminal Appeals stated that it used a different definition from a manual published in 1992 to determine when someone was exempt from execution because of an intellectual disability. After the Court of Criminal Appeals denied his claim for exemption from execution based on an intellectual disability, Moore filed a petition for a writ of certiorari, which the Supreme Court granted.
The question before the Supreme Court is: must a state use a current medical definition of intellectual disability when determining under Atkins if a defendant may be executed, or may it use an older definition?
Texas argues that a state is not required to follow one specific test or definition in its Atkins determinations. It states that although the views of the medical community must be considered in these determinations, the medical community’s views are not dispositive and no one view is authoritative. It also contends that no consensus among states has developed that the latest definition of intellectual disability must be used and that requiring states to use a specific latest definition of intellectual disability would be problematic. The state further maintains that, based on the record and an expert assessment of his functioning, Moore would not be found intellectually disabled under any standard the Court of Criminal Appeals would have applied to him. Additionally, the state argues that even if the Court concludes that the Court of Criminal Appeals did not adequately consider recent definitions, the proper remedy would be a remand for consideration of those definitions rather than a rule requiring all states to use the most recent definitions in their Atkins determinations. Furthermore, the state notes that the use of evidentiary factors that the Court of Criminal Appeals allows in the state’s Atkins determinations does not mean that the state rejects the standards of the medical community in these determinations. Texas points out that the use of these factors is purely optional and that the factors were irrelevant to the outcome of Moore’s case.
Moore contends that the Court of Criminal Appeal’s use of the 1992 definition and rejection of the habeas court’s use of the 2010 definition is effectively a prohibition on the use of current medical standards in violation of the Eight Amendment. He argues that Supreme Court precedent requires the consideration of current medical standards in the Atkins determination. He contends that states have no reason to use older standards or definitions in the determination, and that the use of older standards could result in the execution of those with intellectual disabilities. Moreover, Moore argues that some of the factors the Court of Criminal Appeals used in its intellectual disability determination are inconsistent with or even counter to current medical standards. Moore also contends that the Court of Criminal Appeals limits the prohibition on execution of individuals with intellectual disabilities to only a subset of individuals with intellectual disabilities, rather than exempting all individuals with intellectual disabilities.
This case has the potential to have several varying impacts. First, the decision in this case may affect state criminal justice systems. If the Supreme Court decides that states must use a certain medical standard in Atkins determinations, states will have to adapt to the newly required standard, which could require a significant amount of training to bring the relevant criminal justice system officers up to speed on the new standard. States may also find themselves relitigating cases of individuals in positions similar to Moore who were found not to have an intellectual disability under an older standard but who may have a disability under a current standard.
This case may have a more theoretical impact as well, implicating principles of federalism. A decision in favor of Texas would allow states to continue to apply their own standards to their Atkins determinations, even if different states have different standards. A decision requiring the use of a specific standard would require federally-mandated uniformity among states in Atkins determinations.
Finally, the Court’s decision here will gravely impact Moore and could also impact individuals nationwide who are or who will be on death row. Requiring modern standards would likely give a wider reach to the Atkins rule, as modern standards may have a broader understanding of intellectual disabilities. As such, a decision requiring the use of newer standards in Atkins determinations may give hope to numerous individuals who were sentenced to death by a state that used an older, stricter standard, as these men and women may have a chance at reevaluation under new standards that could move them off of death row.
1. 536 U.S. 304, 321 (2002) (holding that the Eight Amendment prohibits the execution of an individual with an intellectual disability).
November 30
Jennings v. Rodriguez
No. 15-1204; 9th Cir.
Few topics generate more controversy in the current political climate than immigration. The news cycle often presents the subject in diametric terms, with Democrats favoring progressive immigration reform and Republicans championing strong national borders. The truth is far more nuanced, as evidenced by the challenge to the outgoing Obama Administration’s immigrant detention policies in Jennings v. Rodriguez. The case centers on the prolonged detainment of immigrants without the possibility of bail during proceedings to determine whether they may legally remain within the United States. This type of detention gained national attention when, in 2015, a federal judge blocked the Administration’s efforts to deter future immigration by indiscriminately detaining tens of thousands of women and children who arrived at the southern border seeking asylum from violence in Central America. The hardline rhetoric that marked the recent presidential election ensured the practice would remain in the public spotlight. It is in this environment that the Supreme Court will decide one of the most politically charged cases of the 2016 term.
Jennings arises as a class-action brought by three distinct subclasses of immigrants that federal authorities detained for extended periods without a bail hearing. The first subclass consists of immigrants who are detained for removal upon being released from criminal custody following a conviction for any of a range of crimes, including misdemeanors and simple drug offenses. Federal law does not expressly provide for bail determinations of these individuals. The second subclass includes aliens who are detained upon their arrival to the United States, either for review of their request for asylum or due to some other doubt on the part of the reviewing DHS officer regarding their legal right to be present in the country. Like the first subclass, federal law does not expressly provide for a bail hearing for these individuals. The third and final subclass includes immigrants who are arrested and detained pending a removal determination. Unlike with members of the first two subclasses, federal law does expressly authorize the temporary release of members of the third subclass following a bail hearing. Federal agencies currently interpret the statute, however, to place the burden on the detainee of demonstrating that they do not pose a public danger or flight risk—the inverse of the standard in typical bail proceedings. Further, once bail has been denied, a new hearing is not periodically granted, but rather is only permitted upon a showing of changed circumstances.
The immigrant plaintiffs filed suit charging their prolonged detention as a violation of due process, arguing that the Constitution requires an individualized bail determination by a neutral decision-maker in any instance of civil detention. They cite several particularly egregious incidents in support of their argument, including an Ethiopian asylum seeker who was denied release because a DHS officer claimed that there was a pattern of deceit among the Somalian detainees. Absent a bail hearing, the Ethiopian detainee was never given an opportunity to demonstrate that the grounds for detainment were invalid—if for no other reason than that he was not Somalian.
The district court and the Ninth Circuit Court of Appeals agreed with the plaintiffs, granting a preliminary injunction. The court held that, to avoid a serious constitutional conflict, federal law should be interpreted to require DHS to hold a bail hearings after six months of detention, and a minimum of once every six months thereafter. The court further held that the burden should fall upon the government at these hearings to affirmatively prove by clear and convincing evidence that the detainee was a danger or a flight risk. The injunction went into effect four years ago, and the plaintiffs claim that nearly 70% of detainees granted hearings in the years since were granted bail, saving the government millions in detention costs. The Ninth Circuit issued a final ruling in granting permanent relief in October 2015.
The Government now challenges the ruling on two interrelated grounds. It first argues that the Ninth Circuit overstepped its authority, effectively rewriting the substantive content of federal law to avoid directly addressing the constitutional question. It next contends that prolonged detention without bail is constitutional under a long line of cases in which the Supreme Court held that political branches have “plenary authority” to determine which aliens may enter the United States. Foremost among these precedents is 2003’s Demore v. Kim, in which the Court upheld the detention of criminal aliens without opportunity for bail pending a removal determination.
The Government’s reliance on Demore is substantially undercut, however, by a self-inflicted wound. Last year, the Solicitor General’s office took the rare step of confessing error to the Supreme Court. In its briefs in Demore, the Government cited a number of statistics that it now admits were “significant errors.” Among other misstatements, the Government claimed that the average length of immigrant detention was only a few months—well shy of the six-month deadline imposed by the Ninth Circuit. The correct figure is over a year, with many immigrants detained for substantially longer. Whether this discrepancy will be sufficient to distinguish Demore remains to be seen. At a time of political tumult, advocates will surely be keeping a close eye on the case for clues about the future direction of the Court.
December 5
Bethune-Hill v. Virginia State Board of Elections
No. 15-680; E.D. Va.
&
McCrory v. Harris
No. 15-1262; M.D. N.C.
Political scientists often refer to redistricting as the most political activity in America. Every ten years following the completion of the United States Census, state legislatures across the country redraw the boundaries of voting districts to account for changes in population. Politicians long ago discovered that this seemingly straight-forward administrative task actually forms one of the most powerful tools in American politics; by drawing boundaries strategically based on demographic mapping, a party can subdivide or pack its opponent’s supporters into a single district, virtually guaranteeing electoral success in the aggregate. Though it has never looked kindly on the practice, the Supreme Court has thus far been unable to arrive at a manageable standard for identifying and rectifying this sort of “partisan gerrymandering.” The same is not true, however, when it comes to drawing districts that systematically disadvantage racial minorities.
In 1993’s Shaw v. Reno, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits legislatures from drawing districts on the basis of race unless that use is narrowly tailored to serve a compelling government interest. The Court clarified in 1995’s Miller v. Johnson that this strict scrutiny applies any time race is the “predominant factor” in the drawing of a district. This general prohibition stood somewhat at odds with federal law. Until it was rendered inactive by a Supreme Court decision in 2013, Section 5 of the Voting Rights Act of 1965 (“VRA”) required certain states with a history of racial discrimination to submit their redistricting plans to the Justice Department or the District Court for the District of Columbia prior to enactment. The plans were not permitted to go into effect until these bodies ensured that the new maps did not have the purpose or effect of discriminating against racial minorities. One aspect of this evaluation was a requirement that the new map not degrade the ability of racial minorities to elect a candidate of their choice. The requirements were not entirely unreconcilable, however. In 2015, the Supreme Court held in Alabama Legislative Black Caucus v. Alabama (“ALBC”) that a state’s good-faith and reasonable belief that it was required to use race to obtain Section 5 preclearance may be a sufficiently compelling interest to satisfy strict scrutiny if the use was narrowly tailored to meet that goal.
Virginia and North Carolina were both subject to the Section 5 preclearance requirements still in effect during the redistricting that followed the 2010 census. In a purported effort to satisfy the law, each state’s legislature identified existing districts as minority ability-to-elect districts and redrew them to contain a black voting age population (“BVAP”) that met or exceeded the minimum levels needed to elect a candidate of its choice. The Justice Department cleared both maps, but voters in each state sued, challenging the new maps for what they characterized as impermissible racial gerrymandering. Under federal law, challenges to redistricting are heard by a three-judge panel at the district court-level and are appealable directly to the Supreme Court.
In Virginia, the legislature had redrawn each of twelve identified districts to contain a BVAP of at least 55%. In Bethune-Hill v. Virginia State Board of Elections, a two-judge majority upheld the plan. The court first examined whether racial considerations predominated over more traditional redistricting criteria such as compactness, contiguity, and adherence to political boundaries. It then examined whether any deviations from these neutral criteria could be justified by other explanations. Lastly, it evaluated whether those deviations that were attributable to only race outweighed all other neutral criteria. Using this test, the court found that race had not been a predominating factor in eleven of the twelve districts. In the twelfth district, which had required “drastic maneuvering” in its design to meet the 55% BVAP target, the court held that the use of race was valid under strict scrutiny because it was narrowly tailored to meet the requirements of Section 5.
One judge dissented, arguing that the use of a “one-size-fits-all” 55% BVAP target indicated that race was the predominate consideration in all twelve districts. She objected to the majorities three-step analysis, stating that “the incidence of constitutional harm is not limited to the presence of a district that is odd in shape.” She would have further concluded that the use of the 55% target was not sufficiently tailored to satisfying the requirements of Section 5 to satisfy strict scrutiny, striking down the redistricting plan in all instances.
In North Carolina, the new redistricting map included an increased BVAP in two districts, CD 1 and CD 12. A two-judge majority struck down the plan in McCrory v. Harris, holding that the use of race predominated in the drawing of both districts and was not narrowly tailored to the requirements of Section 5 in either case. One judge dissented in part. He noted that the violation in CD 1 did not seem to be the product of flagrant discrimination, but rather the difficulties of balancing Equal Protection requirements with those of Section 5. He would have further held that CD 12 was drawn not as the result of racial gerrymandering, but rather partisan gerrymandering to benefit the Republic party. Because this consideration predominated over race, the judge would not have subjected CD 12 to strict scrutiny.
The Supreme Court granted certiorari in both cases, which will be argued back to back on December 5. The decisions are sure to have some ramifications for the volume of future redistricting litigation, but circumstances will likely render the holding a narrow one. The Supreme Court struck down the formula for determining which jurisdictions were subject to Section 5’s preclearance requirements in 2013’s Shelby County v. Holder because it relied on data that was forty years out of date. Though the ruling left Section 5 itself intact, Congress has not enacted a new formula to govern its coverage, and it currently remains inoperative.
December 6
Life Technologies Corporation v. Promega Corporation
No. 14-1538; Fed. Cir.
A question of patent statutory interpretation finds its way to the Supreme Court through a bit of a circuitous route, though the Justices’ decision will be broadly applied. The meaning of the word “substantial” is what is at issue before the Court, and it came up in the damages phase of otherwise straightforward patent litigation.
DNA testing kits, used in forensics and paternity questions, typically contain five components: a mix for primer, a nucleotide reaction mix, a buffer solution, control DNA, and a polymerase. These five components all work together to provide DNA analytics. Promega and Life Technologies both manufacture a certain kind of DNA testing kit. In 2010, Promega sued Life Technologies (“LifeTech”) for infringement on five patents for which Promega was either the exclusive licensee or owned. LifeTech was found to have infringed on the patents, and the question was given to a jury as to how much in damages Promega was to be awarded. In order to determine the damages, the jury first had to answer the question of what part of LifeTech’s sales constituted United States sales. The jury found that all LifeTech’s sales worldwide were U.S. sales and awarded $52 million in lost profits to Promega.
LifeTech immediately moved for judgement as a matter of law, asserting that Promega had not sufficiently demonstrated that a “substantial portion” of the kits sold abroad contained patent-infringing products, as required by 35 U.S.C. § 271(f)(1). 35 U.S.C. § 271(f)(1) instructs on the extraterritoriality of patent infringement, dictating that an entity has infringed on a patent if it has “without authority supplie[d] or cause[d] to be supplied in or from the United States all or a substantial portion of the components of a patented invention.” LifeTech argued, and the district court agreed, that because only the polymerase was an infringed product, Promega had not shown that a substantial portion of LifeTech’s international sales of the DNA kit contained infringed patents. The district court put a number to what “substantial” meant: at least two.
The Federal Circuit disagreed with the district court’s quantitative assessment of what “substantial” means and adopted a more qualitative approach. In reversing the district court’s opinion, the Federal Circuit relied on dictionary definitions and case law to determine that sometimes a single component can constitute an infringement. And in this case, the court held, LifeTech’s polymerase was substantial.
Promega urges the Court to affirm the Federal Circuit’s holding, asserting that a qualitative definition of “substantial” is more in line with the statutory intent than a quantitative one. LifeTech, however, contends that the district court was correct. Supported by the Solicitor General, LifeTech proffers that the Federal Circuit did not adequately apply the presumption against territoriality and a decision in Promega’s favor would wreak havoc on the global economy. Without the strict textual interpretation of the late Justice Scalia, it remains to be seen how the Court as a whole will approach this question of the meaning of a single word.
December 7
Czyzewski v. Jevic Holding Corporation
No. 15-649; 3d Cir.
A company owes you money. You sue that company. Another group of lenders sues the company as well. You have priority over the lenders to receive the money owed, but the company settles with the group of lenders leaving you without a dime. A court says this settlement agreement is okay. How do you feel?
This was the situation that the truck drivers of Jevic Transportation, Inc. faced. Sun Capital Partners purchased Jevic in a leveraged buyout in 2006 with financing by CIT Group. By 2008, Jevic had to file for Chapter 11 Bankruptcy, owing approximately $53 million to its first-priority secured creditors, Sun Capital and CIT, and an additional $20 million to unsecured creditors. On the eve of filing for bankruptcy, Jevic fired all of it’s nearly 1,800 truck drivers.
The truck drivers sued Jevic, alleging that the company violated state and federal laws known as the Worker Adjustment and Retraining Notification Acts, which in some instances require sixty days’ notice before mass layoffs occur. The unsecured creditors also filed a fraudulent conveyance suit against Jevic, Sun Capital, and CIT. Eventually, an agreement was reached between Sun Capital, CIT, Jevic, and the unsecured lenders. However, the drivers were not only left out of receiving any payments—the agreement called for the dismissal of their case.
This agreement, known as a “structured dismissal,” has become increasingly common among bankruptcy courts. Structured dismissals offer a compromise between dismissing a case outright and creating a liquidation plan in its entirety. They are frequently preceded by an order of the bankruptcy court, which dictates the order of the distribution of assets. The question before the Supreme Court is whether or not structured dismissals can contravene the priorities by which bankruptcy laws dictate creditors get paid. Under statutory bankruptcy law, $8.4 million of the truck drivers’ claims would have had priority over the claims of the unsecured lenders.
The district court upheld the structured dismissal, as did the Third Circuit, aligning itself with the Second Circuit. These two circuits held that the absolute priority rule of bankruptcy law does not need to be followed if the court approves the settlement separately from the reorganization plan. The views of these two circuits, which together represent the major corporate law hubs of Delaware and New York, are in direct conflict with the Fifth Circuit, which in 1984 held that settlements must comply with the priority rule of statutory bankruptcy law.
Nineteen states urged the Court to hear this case, which will have serious implications for day-to-day bankruptcy law practice. The Solicitor General of the United States likewise encouraged the Court to grant cert, coming in on the side of Jevic and urging the Court not to create uncertainty over creditors’ rights and repayment claims. If the Supreme Court reverses, it has the potential to create a clear structure against which parties to bankruptcy proceedings negotiate their claims. If they affirm, however, guidance will be needed to confirm when the safety-valve of the least-bad alternative is available for courts to overrule statutory principles.
This post was authored by The George Washington Law Review Online Editorial Team.
