Jurisprudence

What Everyone Is Missing About Elizabeth Warren’s Consulting Work

Recent reporting on the senator’s corporate legal work sheds more heat than light on the subject.

Elizabeth Warren seen in profile with a finger pointing up.
Elizabeth Warren delivers an economic policy speech on Thursday in Manchester, New Hampshire. Scott Eisen/Getty Images

Last week, Washington Post political reporters Annie Linskey and Matt Viser published back-to-back stories on Warren’s legal consulting work during her years as a law professor—one story concentrating on how much private clients paid her, and the other on a memo she wrote in support of a company’s effort to get the Supreme Court to hear a case. The unmistakable impression these stories create is that Warren greatly enriched herself with a highly lucrative practice defending major corporations against liability for environmental degradation and other wrongdoing. As Linskey and Viser put it, her past legal practice representing corporate entities is “out of step with the liberal presidential campaign she is running today.”

But it only seems that way because Linskey and Viser describe a caricatured version of that practice. Much of Warren’s legal career before she entered public service was devoted to the highly technical field of bankruptcy, a complicated subject that often defies straightforward characterization within the clear-cut whose-side-are-you-on narratives that are the stuff of a presidential campaign. Yet throughout Warren’s political career, her bankruptcy work has been oversimplified to fit a tempting media narrative.

The case highlighted by the Post, CMC Heartland v. Union Pacific, illustrates this. By the time Warren got involved, the question was not whether some corporation bore responsibility for remedying environmental contamination, but rather which of two companies was ultimately liable for the costs. One of those companies was responsible for indemnifying the other for those costs, but it contended that its bankruptcy erased that liability, even though that bankruptcy ended before Washington state passed the law that created the cleanup responsibility. As Georgetown Law professor Adam Levitin summed up the controversy:

In the 1970s, a railroad company, the “Milwaukee Road,” filed for bankruptcy. As part of that bankruptcy, Union Pacific purchased a rail yard in Washington State from the debtor. The purchase included an indemnification for environmental liability. The company that subsequently emerged from bankruptcy was called CMC Heartland.

A decade after the sale (and well after the conclusion of the bankruptcy), Washington State passed a new environmental law that required a cleanup of the rail yard. Union Pacific paid for the cleanup, but sought to have CMC Heartland—the reorganized debtor—foot the bill based on the indemnification agreement. CMC Heartland argued that it shouldn’t be liable because Union Pacific had never filed a claim in the bankruptcy based on the indemnification agreement, so all of its liability under the indemnification agreement was discharged in the bankruptcy. Union Pacific countered that the discharge covered only liabilities that existed at the moment of the discharge, not liabilities that arose in the future.

The 7th U.S. Circuit Court of Appeals agreed with Union Pacific, holding that CMC Heartland had to indemnify Union Pacific’s liability under the recently passed Washington law.

CMC Heartland filed a petition for certiorari, a request for the Supreme Court to review the decision, asserting that the case presented the important, recurring question of whether “for purposes of bankruptcy law, a liability claim based on a state statute can arise before enactment of the statute that creates liability for that conduct.” The Supreme Court found this petition interesting enough to call for the views of the U.S. solicitor general, a step it takes with only a small fraction of those petitions filed with it each year. Before responding to such a request, the solicitor general’s office customarily invites both sides to meet with it and, if they choose, provide short submissions in addition to the briefs already filed with the Supreme Court.

It was at this point that CMC Heartland apparently retained Warren to draft a hurried memo to the solicitor general’s office. It is unsurprising that CMC Heartland would contact Warren, or that Warren would agree to do so.

Not only was Warren among the country’s most prominent bankruptcy lawyers, but her strong views on this issue were already a matter of public record. She articulated a comprehensive vision that bankruptcy proceedings should account for many claims that might be filed against the bankrupt company in the future as well as those already filed. For example, if a bankrupt company faced litigation for exposing its workers to asbestos, the bankruptcy should try to resolve its liability to poisoned workers whose symptoms had not yet manifested, not just those whose suits were filed before the bankruptcy. Otherwise, those workers might never get paid, or they might end up in court later, rehashing the same fight.

Two years earlier, Warren said as much in an amicus brief in the 11th U.S. Circuit Court of Appeals, in which she argued that a bankruptcy court could set aside a pot of money in anticipation of such claims that wouldn’t be distributed to present claimants.

That brief—filed on behalf of Warren alone, and for which she presumably was unpaid—not only makes essentially the same arguments as the memo that is the subject of the Post’s breathless coverage, but in many places it uses the same language. In both documents, Warren argued that bankruptcy must address future claims as well as present ones, and finally resolve all liability for them, because the alternative would:

undermine the central principle of the federal bankruptcy laws—to treat like claimants alike—leaving those with pre-filing injuries to a collective treatment in the bankruptcy proceeding while those whose injuries arise later founder alone, sometimes receiving much better subsequent treatment and other times receiving no compensation at all.

That is, Warren argued that it was in the interests of many future claimants, not just the bankrupt company, to have a forum for adjudicating their claims within the bankruptcy, rather than take their chances after the bankruptcy was over against a company that might or might not have resources remaining to compensate them. And because such claims are appropriately resolved within the bankruptcy itself, she argued, they shouldn’t stand in the way of bankruptcy providing a truly clean slate for the bankrupt company.

The memo she wrote for CMC Heartland to present to the solicitor general appears to repurpose her previous writing, with a few tweaks. For generating this memo on short notice, she was paid $21,000.

The gambit failed. The Justice Department’s brief to the Supreme Court opposed certiorari. Its principal reason was that CMC Heartland had failed to properly raise the issue before the lower courts, a prerequisite for having the Supreme Court consider it. Secondarily, the Justice Department disagreed with CMC Heartland and Warren both on the merits of how the bankruptcy code should be construed and whether the issue occurred frequently enough to merit Supreme Court review. It noted “we are not aware of any other pending litigation in which a reorganized entity claims immunity from post-discharge statutory enactments that impose retrospective liability.” The Supreme Court denied certiorari.

What should we make of this episode? It appears that a prominent professor was retained to draft a memo restating views she had offered before, giving her a chance to put those views in front of the U.S. government (and maybe the Supreme Court down the road) and influence the development of her field of study. While her memo was written for CMC Heartland, and served that company’s interest in the case, it advocated a vision of bankruptcy that Warren argued would ultimately benefit consumers, workers, and others with claims against such companies.

A more sophisticated critical look at how Warren’s law career dovetails with her current positions is possible. It is not beyond doubt that Warren’s consistently expressed position that future claims should be folded into a present bankruptcy or be forever barred is, in fact, the best one. But the Post’s telling sheds more heat than light on the complex subject. Nowhere did the Post mention that Warren’s memo simply repurposed arguments she had made before without pay, thus leaving the reader with the impression that the money she was paid influenced her argument. And it repeatedly suggested, wrongly, that Warren’s memo threatened the remediation of environmental contamination.

For example, it stated: “Warren was representing a large development company that was trying to avoid having to clean up a toxic waste site.” Not so: All agreed Union Pacific was responsible for the cleanup, and the question was whether CMC Heartland had to indemnify it.

Similarly, the Post stated: “Warren’s memo was sent to the Justice Department in an effort to elevate the matter to the U.S. Supreme Court—a move seen by activists at the time as a delay tactic that would only jeopardize public health.” It isn’t clear how the Supreme Court taking the case to decide CMC Heartland’s indemnification obligations could have delayed any cleanup or jeopardized public health, since Union Pacific’s responsibility to clean the site wasn’t at issue.

The bottom line is that, in the CMC Heartland case, Warren did no more than rehash a position regarding how bankruptcy law should work that she articulated, in various settings, paid and unpaid, for decades. She appears to have selected representations that would permit her to further this view rather than seeking to maximize her earnings. That she asked for payment from a client who could pay her and benefited from her work seems less than scandalous. There is no indication that her position, if adopted, would have mattered to environmental cleanup. Of course, had the story emphasized these points, readers might well have wondered why Warren’s memo merited a story at all.