[6/9/09 PM Update: The United States Supreme Court just cleared the Chrysler sale! "The applications for stay … are denied," the Court wrote in this 2 page per curiam opinion. The Court still may hear the petition, but the petitioners needed to prove likelihood of success not just on the merits, but also "a likelihood that irreparable harm will result from the denial of a stay." Even the tort claimants can’t prove that as they’ll always have their day in court in their respective jurisdictions.]
[See Part I of my analysis of Judge Gonzalez’s sale opinion here.]
The brilliant lawyer, author, and ex-blogger, Bill Patry (now senior copyright counsel at Google), wrote on his Patry Copyright Blog back in 2005 about the greatest Biblical scholar of all time, Rabbi Shlomo Yitzhak (whom everyone affectionately calls "Rashi"). Bill wrote:
Rashi is used as a learning device for children not because he is simple (he isn’t) but because of the unusual nature of his commentary. His commentary consists of very terse conclusions, but without the questions that prompted the conclusions. Children are left with the task of asking "What’s Bothering Rashi?" … The "What’s Bothering Rashi?" approach to learning text is useful in analyzing statutes because it teaches one to ask the why of things, rather than as we almost always do, just read the literal words divorced from what the law would be like in their absence.
Bill’s post came to mind in thinking about "What’s Bothering Ruthie?" that would prompt her to write a one-liner calling a halt to a sale that remarkably worked its way from bankruptcy filing to cert. review in less time than it takes the average person to buy a used Town & Country. Here are a few ideas:
- Maybe she doesn’t like the lawyers down the street telling her (as reported here by SCOTUS Blog) that "no court, including the Supreme Court, has the authority to hear a challenge by Indiana benefit plans to the role the U.S. Treasury played in the Chrysler rescue." Tell that to Justice Marshall!
- Or maybe, like her predecessors during the Depression in the Schechter Poultry Corp. v. US case, she’s wondering whether (as argued here by Ralph Nader) Congress abdicated the essential legislative functions with which it is vested by letting the Executive Branch alone structure and implement the deal.
- As noted in my Part I analysis, however, I doubt she’s losing sleep over whether the sale is a sub rosa plan or whether the absolute priority rule was violated.
I’m guessing, though, that what bothers her most — and frankly what’s really been bothering me most (hence Part II) — is the sale’s treatment of tort claimants, both present and future, and Judge Gonzalez’s cursory justification for such treatment. He wrote:
Continue Reading What’s Bothering Ruthie? Chrysler Bankruptcy Sale Opinion Analysis – Part II