,
15 tweets,
7 min read
Read on Twitter
Looking at her list, @SenWarren could've made more -- much more -- if she hadn't been so selective, if she hadn't stuck to work consistent with her principles. The vast majority of her work was standing up for consumers and small businesses.
/1
/1
Warren was helping asbestos victims get their fair compensation, helping employees get their pay, and helping small businesses take on big ones. Last one there is her helping the lawyer portrayed in the movie A Civil Action. /2 
Some of Warren's cases show just how deeply respected she is in her area of expertise. It is quite rare for a Circuit Court to appoint a neutral expert at all, much less an expert to advise them on a matter of law. /3
One case caught my eye, Fairchild Aircraft, in which she represented an aircraft manufacturer that was sued over a crash. On the surface, that's not pro-consumer -- except it is, when viewed alongside her contemporaneous amicus in Piper Aircraft and her prior legal writings. /4
Way back in 1987, Warren published a law review article about the bankruptcy code, and in there noted how bankruptcy plans are supposed to take care of potential future creditors, and how they also have a "claim." In the Fairchild Aircraft case, the manufacturer went bankrupt /5
five years before the accident, and all the assets were bought by another company. But, for whatever reason, the bankruptcy plan was approved without any provision for future potential claimants, and so no money was set aside for circumstances like the crash. /6
The crash victims' estates wanted to avoid the bankruptcy discharge (which would've stopped their case) by arguing they didn't have a "claim" under the code. That result would be good for them -- but bad for other people injured by products from companies that went bankrupt. /7
If future tort victims don't have a "claim," then companies going bankrupt aren't obliged to set aside funds for them. That'd leave most future victims in a lurch when there were no funds available. Most of Warren's work revolved around ensuring those funds were set aside. /8
In Piper Aircraft, the court appointed someone to represent the interests of future claimants, and they proposed a $100M set-aside for these claims. Warren filed a brief in support. The 11th Circuit said no, and held "claims" need to be identifiable. /9
The issue of future tort claimants in bankruptcy has evolved since then. It's still vexing and complicated, but most courts now follow Warren's argument. In 2007, for example, the Archdiocese of Portland's bankruptcy included a $20M trust for future tort claimants. /10
The single issue that gets me into the most fights with lawyers here is: I judge lawyers for what they do. I won't pretend a white-shoe Supreme Court lawyer who helps corporations cheat consumers is morally and socially equivalent to a public defender. They're inferior. /11
Viewed that way, the vast majority of @ewarren's private work while teaching was for an unambiguous social good: ensuring corporate bankruptcies provide protections for people and businesses injured by the company's prior conduct. And none of her work made society worse.
/end
/end
Addendum: there's just so much wrong in the WaPo story on @ewarren's work.
For example, this part about Travelers is dead wrong: the company eventually did pay it all, plus interest. Seems @washingtonpost didn't bother to check what happened with the litigation after 2012.
For example, this part about Travelers is dead wrong: the company eventually did pay it all, plus interest. Seems @washingtonpost didn't bother to check what happened with the litigation after 2012.
Seems @washingtonpost has silently updated the Travelers Insurance part with an additional sentence pointing out the money was paid--but they left in the erroneous sentence that "Travelers was able to preserve its immunity but avoid paying," which it obviously wasn't.
And another stealth edit. This one at least gets the facts right about a publicly-available court proceeding. I still don't see how they describe Warren as "help[ing] the company fight for immunity." She helped structure a trust as part of a settlement.
