Trial of the Century or Private Ceremony? (Pari Passu's Little Mysteries) (Updated)
I am not a litigator, and would never venture to read the scheduling tea leaves to predict case outcomes. That said, two things about next Wednesday's hearing in what some call "trial of the century" strike this civilian as pretty odd.
First, after agreeing to receive written submissions from everyone and their cousin, the court initially scheduled a mere fifteen minutes of argument for each of NML and Argentina. None of the third parties were on the hearing schedule until they raised a massive ruckus, which yielded seven minutes apiece for Bank of New York as trustee and the Exchange Bondholder Group, plus a little something extra for NML and friends. Since David Boies for exchange bondholders got no time on the original schedule and barely any time on the revised one, those who said that this round was all about replaying Olson v Boies in Bush v Gore were left without a theory.
Second, word has it that this hearing was first scheduled to take place in a smaller courtroom than the last round. Not clear if this is still the case (updates welcome!). A small room makes sense on the theory that February 27 is a nonevent, a quickie to tie up loose ends--NML's view. It makes no sense if you expect Rethink of the Revolution. If you just take everyone who filed briefs plus their immediate families, not to mention journalists flocking from near and far, you can fill a stadium. But the court seems to be in no mood for a big fat Argentina party.
It would be great to hear from litigators whether any of this really means anything. But from Mars, several options look plausible:
- First, the court has known what it wanted all along and was just humoring everyone's due process desires;
- Second, the court read the briefs and did not think oral arguments would add much to them -- either because they were fabulously clear, or because they contained no new information;
- Third, the court is pushing against the circus atmosphere that has come to surround this case, which also overblows the significance of the case.
None of these readings sound very good for Argentina and its fellow travelers. But maybe none of this means anything anyway.
Update: Someone pointed out to me that there is one more theory that could explain a short argument and a tiny room -- that the en banc petition is about to be granted, so this hearing is not the deciding event. Now that would be one crazy turn of events.