Act I, Scene III: Milavetz, Gallop & Milavetz, P. A. v. United States
I am blessed with an artistic family. We are creative, brilliant, and socially awkward because of our unique perspective. Pondering connections between ideas or exploring issues from multiple angles is just the natural process of art making. Growing up, my sister loved drawing and naturally wanted to be a drawer (definition: noun; one who draws). I wanted to be a counter! Thanks to the Milavetz decision, every child wanting to grow up to be a debt relief agency can pursue their dream!
Sonia begins each opinion with a concise roadmap: topic area, issue presented, and decision. Normally, the game is “figure out the issue, the rule, the holding” blah blah blah. Sonia knows that I have limited time on this world. She knows that I want to use this decision for justice, if I’m able. So, she’s given me a cheat sheet. Thanks, buddy!
Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA or Act) to correct perceived abuses of the bankruptcy system. Among the reform measures the Act implemented are a number of provisions that regulate the conduct of “debt relief agenc[ies]”—i.e., professionals who provide bankruptcy assistance to consumer debtors. See 11 U. S. C. §§101(3), (12A). These consolidated cases present the threshold question whether attorneys are debt relief agencies when they provide qualifying services. Because we agree with the Court of Appeals that they are, we must also consider whether the Act’s provisions governing debt relief agencies’ advice to clients, §526(a)(4), and requiring them to make certain disclosures in their advertisements, §§528(a) and (b)(2), violate the First Amendment rights of attorneys. Concluding that the Court of Appeals construed §526(a)(4) too expansively, we reverse its judgment that the provision is unconstitutionally overbroad. Like the Court of Appeals, we uphold §528’s disclosure requirements as applied in these consolidated cases.
Without going any further in the opinion, do you know what you’re getting into? Most opinions do not follow this approach. Why? Honestly, I blame Cardozo. Moving on!
At oral arguments, the phrase “in contemplation of bankruptcy” was badmintoned around like some sort of high class dinner party (or at least what I assume might happen at fancy dinner parties). Milavetz basically argued that attorneys were barred from giving any advice that would result in the client incurring any additional debt, even if that advice might be completely ethical in other contexts. There was also concern about having to advertise the bankruptcy firm as providing debt relief agency services (the statute gives specific language to use).
At this point you might be thinking, “are these really the sorts of issues that need to be resolved by the United States Supreme Court?!” I see your exasperation and raise you because the Supremes hear cases that a majority of the justices have chosen to hear. They wanted to decide this issue. Plenty of injustice issues existed in 2010; determining whether or not lawyers are debt relief agencies that need to use specific language in their advertisements was the crucial issue the court decided to tackle.
Later on in the arguments Justice Ginsburg says:
Why don’t we say, well, whatever it means in 707(b), it also means in 5, whatever it is.
Civil Procedure Queen, Lover of Rules, “I Find Technicalities And Have The Glasses to Prove It” Ginsburg can’t keep track of the two codes in the argument? Honestly, this sounds like I’m sitting on the court. However, at least she made an effort. Scalia was in wonderful Scalia form:
Now, it may be a stupid law, but I don’t see why it’s unconstitutional… [s]o it’s a stupid law… [a]nd that’s why it’s a stupid law… where is the prohibition of stupid laws in the Constitution?
However, then something unexpected happens: the gallery erupts in laughter. What am I missing? What’s so funny about the Supremes wasting everyone’s time and failing to protect our rights by prioritizing non-issues like this case? Definitely not hilarious.
Changing the lyrics of “Stupid Hoe” to “Stupid Law” and imagining Nicki roasting Scalia, the Federalist Society, and everyone else using the courts to further injustice? Funny. However, YouTube didn’t have that (yet). So, please enjoy Arty tearing it up with ASL instead.