4. ASARCO was more honest about Smith in its briefing below. It never contended
that it could prevail under Smith because
its objections were non-frivolous or caused "meaningful
reduction[s]." Instead, ASARCO urged the Fifth Circuit to reject Smith as "wrongly decided" and
"inconsistent with [opinions] that denied fees for defending a fee
application." 5th Cir. Reply Br. 22, 26 (filed Mar. 8, 2012). Having
persuaded the Fifth Circuit, ASARCO cannot now credibly claim that the split
makes no difference on these facts.
In this next paragraph, the petitioner does something I've commented on elsewhere: Treats certworthiness as a legal proposition:
1. ASARCO does not dispute that this Court commonly resolves 1-1
or 2-1 splits involving bankruptcy. See, e.g., Clark
v. Rameker, 134 S. Ct. 2242,
2246 (2014) (1-1 split between Fifth and Seventh Circuits); Radlax
Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065 (2012) (petition and BIO debate 1-1 or 2-1
split involving Fifth Circuit); Hall v. United States, 132 S. Ct. 1882, 1886 & n.1 (2012) (1-1 split between
Eighth and Ninth Circuit when granted; Tenth Circuit ruled post-grant). That
practice honors the Constitution's call for "uniform laws on the subject
of Bankruptcies throughout the United States," Art. I, ****8, cl. 4. And
it reflects that "the current appellate structure of the bankruptcy
system" results in "relatively few bankruptcy appeals mak[ing] their
way up to the circuit courts." Pardo & Watts, The Structural
Exceptionalism of Bankruptcy Administration, 60 UCLA L. Rev. 384, 438-39
(2012); see Florida Amicus Br.
17. ASARCO's claim that the issues reaches the circuit level only once a decade
makes review more urgent to avoid consigning the bankruptcy system
to disarray for another decade or more.
