The Mother Court: A Newsletter of the SDNY Chapter of the Federal Bar Association. Winter 2021.
THE MOTHER COURT
A N E W S L E T T E R O F T H E S D N Y C H A P T E R O F T H E F E D E R A L B A R A S S O C I A T I O N
W I N T E R 2 0 2 1 • I S S U E 1 • V O L U M E 1
A M E S S A G E F R O M T H E P R E S I D E N T
Dear SDNY Members, Colleagues and Friends:
I am proud to share with you our re- branded newsletter, The Mother Court. With each newsletter, we seek to bring information and share stories that would be of interest to attorney practitioners and judges in our district and circuit.
In this issue, we have an insightful remembrance to the late Associate Justice, Ruth Bader Ginsburg; a highlight of noteworthy Covid-19 cases in our district; a note on the possibility of discharging student loan debt in bankruptcy; and a professional development tip on appellate practice. We also spotlight past programs throughout and offer a preview of what’s upcoming in the next few months.
Thank you to all our contributors for their submissions and the editorial board for their hardwork. We plan to publish The Mother Court quarterly, so look for our next issue in April!
Nancy Morisseau 2020-2021 President SDNY Chapter
R E M E M B E R I N G R B G :
A F O R M E R C L E R K ‘ S P E R S P E C T I V E B Y : T R E V O R M O R R I S O N
“She did not view opposing arguments as mere annoyances to be swatted away. Instead, she viewed them as expressions of serious ideas that needed to be grappled with if the Court was to operate as the rational, deliberative body it is designed to be.”
It was an enormous honor to serve as a law clerk to Justice Ginsburg. She taught me many things during the year I clerked for her. I carry those lessons with me still.
One lesson that I have been thinking a lot about lately has to do with how to engage points of view with which one disagrees. My co-clerks and I learned early on in our time with the Justice about the importance of presenting opposing arguments in their strongest possible light. This was true whether the argument was advanced by one of the parties in the case or by another member of the Court. The Justice stressed to us that, before critiquing the argument, it was critical to present the very best version of it and to consider it on those terms. From there, she homed in on the precise aspects of the argument she found wanting, always striving to avoid hyperbole in her criticism. This was, in part, a matter of simple professional courtesy and respect.
But I think there was something deeper going on as well. I think Justice Ginsburg’s insistence on engaging with the very best version of the arguments with which she disagreed went to the core of how she viewed the role of a Justice.
In my year working for her, I saw a Justice who was at once deeply knowledgeable and also wanting to learn more, at once adept at persuading others and also open to persuasion herself. She did not view opposing arguments as mere annoyances to be swatted away. Instead, she viewed them as expressions of serious ideas that needed to be grappled with if the Court was to operate as the rational, deliberative body it is designed to be.
There is a lesson here for all of us. Today, public discussion of important issues of law and policy rarely features good faith engagement with the best versions of competing arguments. Public officials and pundits alike are more inclined to seek cheap rhetorical points by caricaturing and mocking ideas they don’t like. Many seem almost pre- committed not to engage the issues on the merits and instead to insist that the other side is simply “fake news,” corrupt, or worse. One need not naively believe such charges are never true in order to see the danger in acting as though they always are. In my year working for Justice Ginsburg, I saw an example of a different way to proceed.
Hon. Ruth Bader Ginsburg 1933-2020
May her memory be a revolution.
Trevor Morrison serves as Dean of NYU School of Law, where he is also the Eric M. and Laurie B. Roth Professor of Law. He was a law clerk to Justice Ruth Bader Ginsburg of the US Supreme Court in 2002-2003.
D I S C H A R G I N G S T U D E N T L O A N D E B T :
R E C E N T D E V E L O P M E N T S I N B A N K R U P T C Y
B Y : I R A R . A B E L
Student loan debt has become a significant problem. Accumulated student loan debt is nearly $1.6 trillion and exceeds accumulated car loans, and even, credit card debt. Repayment schedules span decades, with large monthly payments. Lenders are experiencing significant default rates. While the federal government guarantees many of these student loans, servicing this debt has a chilling effect on the sale of houses, cars, appliances, and furniture, as well as spending for vacations and luxury items.
To date, Title 11 of the United States Code (the “Code”) has not proven to be much of a solution. When it was first enacted, the Code permitted the discharge of student loan debt. After some lobbying by the lending industry, Congress amended the Code making it difficult to discharge student loan debt. However, there are potential changes on the horizon.
A recent case, In re Kevin Jared Rosenberg, 610 B.R. 454 (Bankr. S.D.N.Y. 2020), permitted the debtor to discharge a student loan debt in bankruptcy. Also, “The Student Loan Debt Relief Act of 2019,” currently in the Senate Finance Committee, provides that the Secretary of Education must discharge the qualified loan amount of each individual, without regard to the repayment status of the loan or whether the loan is in default. In addition to the discharge (or partial discharge) of the qualifying loan, the Bill provides for refinancing of outstanding loan balances at lower interest rates and payments to the lender to offset any losses.
If enacted into law, the Bill will do much to alleviate the economic hardship caused by the tremendous amount of student loan debt.
Ira R. Abel has practiced law for more than 25 years. He has represented businesses and high net worth individuals in chapter 11 reorganizations and chapter 7 liquidations, restructured businesses outside of bankruptcy court, defended foreclosures and collected judgments. 4
A P P E A L T I P : T A K E Y O U R T I M E
B Y : Z A R A W A T K I N S
An appeal argument is like a five-star meal: it requires meticulous preparation and plenty of time to marinate. Too many lawyers wait until the last minute to start thinking about their appeal arguments, which leads to rushed research and a hurried analysis––or in the worst cases, regurgitation of the lower court arguments (which is equivalent to a fast food meal). Don’t let this be you!
Give your appeal arguments the time they need. Start thinking about them as soon as you know you will take or defend an appeal. Let them steep in your mind as you work on other cases, read the news, or chat with colleagues. I often spontaneously realize a crucial piece of a winning argument after pondering an issue for weeks.
Appellate deadlines allow for the slow formation of an exquisite argument. Always take your time to create it.
Zara Watkins is an appellate attorney with a solo virtual practice. She handles appeals in federal, New York state, and immigration cases. She also writes appeal and motion briefs as Of Counsel for attorneys across the country. You can learn more about her at www.onpointappeals.com.
C O V I D – 1 9 C A S E S I N T H E
S O U T H E R N D I S T R I C T
United States v. Petit,
—F.Supp,3d——- (2020).
In this case, the Honorable Jed S. Rakoff had to decide whether requiring jurors to sit in a second jury box, in light of the COVID-19 pandemic, violated the defendant’s Sixth Amendment rights. Judge Rakoff held that it did not violate the defendant’s Sixth Amendment rights.
Geller v. Cuomo,
—F.Supp.3d—– (2020).
In this case, the Honorable Edgardo Ramos had to decide whether Governor Cuomo’s Executive Orders violated the Plaintiff’s First Amendment rights when she was unable to organize a protest over the City’s gathering restrictions limiting gatherings in light of the COVID-19 pandemic.
Judge Ramos held that Governor Cuomo’s Orders did not violate the plaintiff’s First Amendment Rights.