I got so excited when I read this opinion by Judge Graber. It's the latest installment of a two-part series about what you do when a person who files for bankruptcy wrongfully fails to disclose on their bankruptcy schedules a pending lawsuit (which is an asset of the estate). Do you dismiss the lawsuit on judicial estoppel grounds? Or do you let it go forward?
What I loved about this dispute was that, earlier this year, I had written an extremely long post about this exact issue. Prompted by the issuance of the Ninth Circuit's first opinion on this issue (back in July). Among other things, my post anticipated the present holding, and argued that distinguishing the earlier case (in an appropriate factual setting) would be a good idea. Which is exactly what Judge Graber does here.
Or so I thought.
When I went back to read (and link to) my earlier post, I discovered what has become all-too-common in my busy-but-way-fun career. Had I written nearly 1000 words or so on the topic? Yes. Did that make it overly long? Certainly. Yet I was still not finished. Tired. But still not finished. So I left the post in "draft" form. To be finished and posted another day.
A day that never came.
So I was a tiny bit disappointed in that. Because I had spent so much time on the thing, and thought that I had some tolerably decent points. Yet it was all for naught, since I never actually finished the thing.
Though, to be honest, I'm not nearly as bummed as one might initially think. For one thing, the most recent opinion did the right thing, so as far as "advancing the law" goes, no blood, no foul. Plus, were I to be totally honest, the most fun part for me about writing these things is figuring the stuff out for myself. Lots of this stuff is incredibly complicated. It's often a challenge to figure out what the right rule is. Especially since (as faithful readers well understand) the fact that a court has decided X in no way conclusively determines -- to me, at least -- that X is right and Y is not. The interesting part is thinking about whether X or Y is right, not (to me, anyway) necessarily trying to convince others. The law's a puzzle. Trying to figure out the puzzle is the part that's the most fun. Taking a picture of the finished puzzle and showing it to others is a bonus, to be sure. But when time and other constraints don't allow that to happen, so be it.
Still, I'd by lying if I said that a part of me wished I had completed the thing. Because the underlying debate (in the first case) between Judge Graber -- who wrote the majority opinion -- and Judge Bybee (who wrote the dissent) was, and remains, awesome. Both sides made (and make) great points. It's the battle of two very bright people mutually articulating eminently reasonable arguments. Yet coming out opposite ways.
Ironically enough, in the present opinion, it's Judge Graber -- the author of the current opinion -- who cuts back on the scope of Judge Graber's earlier (split) opinion. Not in a way that's results-oriented or that makes no sense. But rather in a way that's both principled as well as designed to achieve some of the same objectives discussed in Judge Bybee's earlier dissent.
Which I love. Especially since I found several of those points pretty powerful. Even at the time
Seeing how law develops is sometimes like watching sausage being made.
Other times, it's a beautiful thing.