Objections to the availability of bankruptcy are bountiful, with a majority relying on implicit “moral” arguments that too often miss the point. In the commercial realm, anti-bankruptcy arguments tend to be a bit more sophisticated. For example, in an era of global trade in goods and services where state-backed subsidies are typically frowned upon, Chapter 11 bankruptcy protection in the United States is perceived as “cheating.” For instance, in the realm of air services trade where European states have long publicly subsidized their respective air carriers, the U.S. has cried foul since its airlines are ostensibly exposed to the forces of raw competition without recourse to the public piggyback when times get tough. While the creation of a common aviation market within the European Union has reduced the availability of subsides for Union member state carriers, these airlines argue—with some plausibility—that Chapter 11 operates in much the same way as a subsidy, shielding U.S. airlines from the natural effects of competition, namely exiting the market altogether.
Karl Llewellyn, one of the towering legal minds of the 20th century who helped give birth to Legal Realism, maintained a distinction between “paper rules” and “real rules” (or “working rules”). Paper rules, according to Llewellyn and other Realists, are what you find when you crack open, say, the Michigan Court Rules or the Michigan Compiled Laws; real or working rules are the actual rules judges apply or the decisions they render, often in a manner liberated from the text. This is not to say that judges don’t follow any rules. Rather, according to the Realist movement, judges follow rules that are, in part, of their own devising. It is the role of jurists, then, to ascertain what those rules are, how they will be applied, and which judges prefer them.
Listeners of the hit podcast Casefile may recall last August’s episode dealing with the 1998 disappearance of Amy Lynn Bradley aboard a cruise ship owned by an American corporation but registered or “flagged” in Norway. The phenomenon of ships being registered in foreign countries has come to be known as the “flag of convenience” problem. Because a ship primarily follows the laws and regulations of the country where it is flagged, there is an incentive for ship owners to register their craft in states with loose oversight of safety, security, and labor issues. The Bradley case, which made headlines around the world, proved vexing to American investigators as the Norwegian registry of the ship coupled with its port location when Bradley went missing (Curacao) dictated in large part the laws that had to be followed. While some steps have been taken since 1998 to address this problem, flags of convenience remain a common feature of the maritime industry.
Giambattista Vico, writing in chapter two of his De Antiquissima, observed: “An esteemed jurist is, therefore, not someone who, with the help of good memory, masters positive law, but rather someone who, with sharp judgment, knows hw to look into cases and see the ultimate circumstances of facts that merit equitable consideration and exceptions from general rules.”
Ever since “Brexit” (the nickname for the United Kingdom’s (U.K.) withdrawal from the European Union (EU)), aviation analysts and lawyers have pondered what would become of U.S./U.K. aviation trade relations. Prior to the landmark 2007 U.S./EU Air Services Agreement, U.S./U.K. aviation trade was governed by a highly restrictive agreement signed in the 1970s known as “Bermuda II” (“Bermuda I” was the slightly less restrictive treaty signed between the two countries after the Second World War). Bermuda II imposed tight controls on transatlantic rates, routes, and services offered by both parties’ air carriers. London Heathrow Airport, a major gateway into Europe, locked out competition from all but two U.S. airlines, PanAm and TWA (these rights were later acquired by American Airlines and United). Despite U.S. attempts to liberalize its trade relations with Britain, the U.K. remained favored a policy of managed air services trade for decades.
Lawyers love slapping the expression “For Settlement Purposes Only” (and/or “Confidential”) on correspondence with other attorneys, especially if a demand letter has been sent. A demand letter, also sometimes referred to as a nasty-gram, is a request from one party to another to cease doing something, pay something, acknowledge something, etc. Parties without counsel will typically do one of two things in response to such letters: (A) Panic or (B) Throw them in the garbage. Should they have representation, however, it is not uncommon for their counsel to send back a reply telling the other party’s lawyer to either buzz off or, absent that, propose some sort of settlement—and that is where the magic language comes in.
Going off of last week’s post concerning low-income tenant exploitation, a question that naturally arises is should a tenant who fall below a certain income threshold be entitled to low-cost or free legal representation? The first objection, of course, is who is going to pay for it? While some attorneys are willing to volunteer their time, either directly or through a legal aid society, such measures are few and far between. Moreover, landlords—and their attorneys—have a crucial advantage right off the bat, namely aggregation.
How legally exploitable are lower-class tenants in Michigan? It’s an empirical question, and one that has not been thoroughly researched (as far as my scan of Google Scholar can tell). Even so, it’s not difficult to imagine how landlords, in concert with unscrupulous attorneys, could shake down tenants for extra cash even if they are not substantially behind on their rent.
Before taking to Twitter yesterday to issue a rather controversial message to North Korea regarding nuclear weapons, United States President Donald Trump issued this curious tweet:
Since taking office I have been very strict on Commercial Aviation. Good news – it was just reported that there were Zero deaths in 2017, the best and safest year on record!
— Donald J. Trump (@realDonaldTrump) January 2, 2018
As discussed in part one of this series, strict liability crimes—criminal offenses which do not require the prosecution to prove intent (mens rea)—arose in the late 19th and early 20th centuries in response to urbanization and industrialization. These laws, often referred to as public welfare offenses, were typically directed at the sale of alcohol, foodstuffs, and narcotics, along with pollution and public nuisance offenses. For better or worse, the list of strict liability offenses grew throughout the latter half of the 20th Century, leading judges, lawyers, and legal academics to question not only their fairness, but their constitutionality. Despite calls to curtail the promulgation of strict liability crimes, many states continue to pass them, including Michigan. A number of state legislators have, however, taken steps to pass intent statutes which require the presence of general intent for most crimes, regardless of statutory language. Michigan is not one of them.