Pathways to SCOTUS Stardom

For more than a century, most lawyers who showed up at the Supreme Court for arguments were one shotters.  But starting in the mid 1980s, a new breed of lawyer emerged.  The SCOTUS superstar; someone who was a specialist in making arguments to SCOTUS, showed up repeatedly, and usually possessed the most elite of legal credentials possible.  No prizes for guessing the gender and race of most of these SCOTUS superstars.  (Aside -- SOOTUS superstars also existed in the early 1800s, but probably for different reasons).

A number of scholars have documented the rise of this new type of lawyer and legal specialty - included here are Kevin McGuire, Richard Lazarus, and H.W. Perry.  There has also been interesting work on the question of the impact of this new type of lawyer (they win more and are much better than others at getting cert granted - as work by Adam Feldman & Alexander Kappner has shown).

There has thus far, however, been little attention paid to the dynamics of the gender disparity among SCOTUS superstars.  Megan Lemon's excellent new paper, Pathways to the Podium, does just that using a combination of qualitative and quantitative data.  The findings from the interviews Megan did with a number of these superstars are fascinating.  One of the implications of Megan's study seems to be that men are able to more easily and quickly achieve and monetize their superstardom.  

When Can the US President Forgive a Sovereign Debt?

Let us assume that the US has made a loan to a foreign sovereign for some combination of political and benevolent reasons. For example, to support some friendly nation after they get hit by a severe hurricane or to help out a military ally with arms after they have been suffered an unprovoked attack by another nation.

Congress has the "power of the purse", so loans have to be approved by it. But does Congress also retain the power, at some later date, to decide on whether some portion of this debt can be forgiven? Or can the Executive Branch make the decision here? At first cut, under the "power of the purse" rubric, my thought was that surely Congressional approval would have to be obtained. But a fascinating new paper by David Del Terzo, appropriately titled "When Can the President Issue Foreign Debt Relief"  suggests that the answer is more complicated.

Serta Simmons Uptier: Implications

We now have the first major Court of Appeals decision on a liability management transaction. On the last day of 2024, Judge Andy Oldham of the 5th Circuit issued a very thoughtful and thorough opinion regarding the Serta Simmons uptier transaction and subsequent bankruptcy plan. (I have fond memories of Andy looking like a deer in the headlights on the 1st day of 1L Contracts when he was asked "What's an assumpsit?" by a certain former co-blogger...) Although the opinion is an important punctuation point, I don't think it will itself fundamentally change the use of liability management transactions; there's really little downside from pursuing them and potentially plenty of upside.

 

Is Elon Musk Trying to Protect Alex Jones's X Accounts?

There's a fascinating development in the Alex Jones Chapter 7 case.  Jones ended up in bankruptcy to try to avoid paying on the defamation judgment the Sandy Hook victims' families won against him. His case converted to a Chapter 7, and a trustee has been liquidating his assets. Among the assets the trustee is trying to sell are Jones's social media accounts in X (formerly Twitter). 

X has since filed an objection to the sale claiming that the X accounts are not the property of Jones, but are instead owned by X, which merely issued Jones a non-transferable license.  Now this "limited" objection is only about the "accounts" proper, not the content Jones posted on X. X claims that it is objecting because of it has an interest in preventing the transfer of accounts because of its concern about making sure that users are who they say they are.

X's professed concern about fake accounts is risible. X does not generally verify its users when it onboards them. Nor does X appear monitor in any way to determine if an account has in fact been transferred. Instead, X is a platform that is lousy with fake accounts and bots. So what's this really about?

As far as I can tell, the X objection to the sale is about Elon Musk wanting to ensure that Alex Jones can continue to use his Twitter handles and retain his followers and make it very difficult for anyone to delete or edit Jones's old posts.

Can Trump Fire the Fed Chair? Some Legal Realism

Fed Chair Jerome Powell has tersely indicated that he won't resign if asked by the President and that he cannot be fired or demoted. Peter Conti-Brown, who is a keen observer of Fed issues, has a nice summary of the state of the law. The basic idea is that as a formal legal matter, members of the Federal Reserve Board are removable by the president "for cause," such as inefficiency, neglect of office, and malfeasance. It's less clear if the President can demote the Chair to a mere Board member and, if so, what would be the standard for demotion, but it would seem strange that the greater cannot include the lesser. 

But here's the thing:  none of the legal rules matter. 

Unfair and Abusive Automatic CD Rollovers

Earlier this month the FTC finalized its “Click-to-Cancel” Rule to make it easier for consumers to get out of recurring subscriptions and memberships. The rule was promulgated under the FTC’s power to prohibit unfair and deceptive acts and practices in commerce, but the FTC’s jurisdiction under that power does not extend to banks, and banks have an auto-renew product that is in some instances much more problematic than automatic subscription renewals. What I’m talking about are automatic CD rollovers, which are sometimes done in an unfair and abusive way to rollover unsuspecting depositors into way-below-market-rate CD terms.