Josiah M. Daniel, III
Legal Historian
• Visiting Scholar, Department of History, The University of Texas at Austin
• Retired Partner in Residence, Vinson & Elkins LLP
jmd3.historian@gmail.com
blog-josiahmdaniel3.blogspot.com/
Bio
• After forty years of law practice, today I am a legal historian with several projects underway. See American Historical Ass’n, Perspectives, https://www.historians.org/publications-and-directories/perspectives-on-history/november-2018/aha-member-spotlight-josiah-m-daniel-iii
Published in July 2023 in Northern Kentucky Law Review and (unfortunately but necessarily) corrected and revised by me shortly thereafter, my article, culminating forty years of research, titled “Cooptation of the Carmack Amendment by the Railroads, 1906-1917: A Study in Associational Lawyering” is now available: papers.ssrn.com/sol3/papers.cfm?abstract_ id=4559518. My project began when I was a young lawyer, and over four decades of full-time law practice, I continually nursed the project along, visiting seven archives along the way to acquire the primary-source research that is an essential foundation and distinctive attribute of the analysis in my article.
My other, larger project is the biography of Dallas congressman Hatton W. Sumners (1875-1962), a complex figure who served in Congress 1913-1947 and chaired the House Judiciary Committee 1931-1947, that is, overlapping the presidency of Franklin D. Roosevelt. His papers reside in the Dallas Historical Society's archives where I have been reviewing them over the past eight years. One chapter of my book, focusing on Sumners’s role in resolving the 1937 court-packing crisis, was published in 2021 under the title "'What I Said Was "Here Is Where I Cash In"': the Instrumental Role of Congressman Hatton Sumners in the Resolution of the 1937 Court-Packing Crisis," 54 UIC L. Rev. 379 (2021) (available: papers.ssrn.com/sol3/papers.cfm? abstract_id=3867823 or https://repository.law.uic.edu/lawreview/ vol54/iss2/1/). A portion of another chapter is posted, under the title “Congressman Hatton W. Sumners’s 1928 Amendment to the Electoral Count Act,” on SSRN at papers.ssrn. com/sol3/papers.cfm?abstract_id=4086905. Forthcoming very soon is my chapter/article on Sumners’s key involvement in the extensive revisions and additions to bankruptcy law, focusing primarily on Chapter IX or municipal bankruptcy, enacted during the financial distress of the 1930s.
I have additional legal history manuscripts nearly completed with tentative titles (i) “‘Our Very Useful And Honorable Profession’: the Texas Bar Association’s Long and Winding Pathway Toward the Professionalization of Texas Lawyers, 1882-1940,” (ii) “Historical Lawyering in the Epic Chapter X Reorganization Case, In re TMT Trailer Ferry, Inc., 1957-1978,” (iii) "Single Asset Real Estate Debtors in Chapter 11: History, Assessment, and SARE Lawyering in the Twentieth-first Century," and (iv) "The Federal Equity Receiver’s Lack of Standing to Pursue the Fraudulent Transfer Cause of Action: The Problem and Two Solutions."
I am very happy to be a Charter Member of the Alliance for Texas History in 2024.
• During 39 years of law practice, I represented debtors, lenders, asset purchasers, creditors’ committees, landlords, trustees, and unsecured creditors in corporate and commercial restructurings, in cases under Chapters 7, 9, and 11 of the Bankruptcy Code, and in advisory work regarding all aspects of restructuring and insolvency law.
Although I retain my law license, I am retired from that! But I do continue to write commentaries about bankruptcy as a subject matter, primarily viewed from historical perspective. See, e.g., Josiah Daniel, "AI Chatbots Are Useless for Bankruptcy Lawyering," papers. ssrn.com/sol3/papers.cfm?abstract_id=4538847. See, also, Josiah Daniel, "Congressional Bill Would Impair Ch. 11 Mass Tort Resolution," www.law360.com/articles/1408090/congressional-bill-would-impair-ch-11-mass-tort-resolution (July 30, 2021).
And I am pleased to note that my bankruptcy-law article on the topic of executory contracts (listed below) was cited with approval by the First Circuit Court of Appeals in the "reorganization" case of Puerto Rico's governmental entities under the bankruptcy manqué statute called PROMESA. See In re Fin. Oversight & Mgmt. Bd. for Puerto Rico, 9 F.4th 1, 10 (1st Cir. 2021).
Professional Background
• Vinson & Elkins LLP, Partner, 1999-2016, Of Counsel, 2017, Retired Partner in Residence, 2018-present
• Prior law firms: Winstead, Sechrest & Minick, 1986-1999; Underwood, Wilson, Berry, Stein & Johnson, 1978-1986
• Admitted to practice: Supreme Court of Texas, 1978-present; also: United States Supreme Court; U.S. Courts of Appeal for the Fourth, Fifth, Seventh, and Tenth Circuits; U.S. District Courts for the Northern, Southern (to 2018), Eastern, and Western Districts of Texas
Education
• The University of Texas at Austin, M.A., history, 1986
• The University of Texas School of Law, J.D., 1978 (Member, Texas Law Review)
• Sewanee: The University of the South, B.A., history, 1973 (Phi Beta Kappa)
Publications
Legal history articles
• “Cooptation of the Carmack Amendment by the Railroads, 1906-1917: A Study in Associational Lawyering,” 50 No.Ky. L. Rev. 51 (20-23), corrected and available at: papers.ssrn.com/sol3/papers.cfm?abstract_id=4559518.
• “Congressman Hatton W. Sumners's 1929 Amendment to the Electoral Count Act,” 26 LSN Legal History eJournal No. 40 (Apr. 29, 2022).
• “What Can the Past Teach Today’s Bankruptcy Law Students, Lawyers, Judges, and Restructuring Professionals?: An Annotated Bibliography of Histories of Debt and Bankruptcy,” available at SSRN: papers.ssrn.com/sol3/papers.cfm?abstract_id=3954504 (Nov. 2021) [see: www.creditslips.org/creditslips/2022/02/
annotated-bibliography-of-histories-of-debt-and-bankruptcy.html]
• "Governor Dan Moody, the Texas Bar, and the Cause of Judicial Reform in Texas During the Late 1920s . . . and to McDonald v. Longley Today," available at SSRN: papers.ssrn.com/sol3/papers.cfm?abstract_id=3929505 (Sept. 23, 2021), revising and updating the original version published in 2 Journal of the Texas Supreme Court Historical Society No. 2, 1 (Winter 2012)
• "The Number Nine: Why the Texas Supreme Court Has the Same Number of Justices as the United States Supreme Court," available at SSRN: papers.ssrn.com/sol3/papers.cfm?abstract_ id=3929777 (Sept. 23, 2021), revising and updating the original version published in In Chambers (Summer 2018)
• "'What I Said was "Here is Where I Cash In"': the Instrumental Role of Congressman Hatton Sumners in the Resolution of the 1937 Court-Packing Crisis," 54 John Marshall Law Review 379 (June 2021), available here: repository.law.uic.edu/lawreview/
vol54/iss2/1/
• “Our Very Useful and Honorable Profession”: The Texas Bar Association’s Work Toward the Professionalization of Texas Lawyers, 1882-1940, forthcoming
• "LBJ v. Coke Stevenson: Lawyering for Control of the Disputed Texas Democratic Senatorial Primary Election of 1948," 31 Review of Litigation 1 (2012) (Best Law Review Article of the Year, awarded by the Texas Bar Fdn., 2013)
• "The Lost Law Schools of Texas," 10 Journal of the Texas Supreme Court Historical Society No. 2 at 46 (Winter 2021) (co-author)
• "What’s in a Name?: The History, and Proper Usage, of the Names 'Texas Bar Association' and 'State Bar of Texas,'" In Chambers (Fall 2019)
• "Dean Page Keeton and Academic Freedom at UT Austin: Three Archival Letters," Not Even Past, notevenpast.org/dean-page-keeton-and-academic-freedom-at-ut-austin-three-archival-letters/ (Oct. 2019); also available at law.utexas.edu/news/2019/
11/06/dean-page-keeton-and-academic-freedom-at-ut-austin-three-archival-letters/
• "A Practicing Lawyer’s Tribute to Professor Joseph W. McKnight" (1925-2015), 7 Journal of the Texas Supreme Court Historical Society No. 2 at 18 (2018)
• "Toward the Legal History of Texas: An Evaluation of Death on the Lonely Llano Estacado by Bill Neal," In Chambers at 5 (Fall 2017)
• "Hatton Sumners and the Retirement of Supreme Court Justices," Not Even Past, http://notevenpast.org/hatton-sumners-and-the-retirement-of-supreme-court-justices/ (Apr. 2017)
• "LBJ v. Coke Stevenson: Case Changed History and Defined “Lawyering,” Texas Lawbook (July 2012)
• "Creating the State Bar of Texas, 1927-1941," 45 Texas Bar Journal 455 (1982)
• “'Chief Justice of the United States': History and Historiography of the Title," 1983 Supreme Court Historical Yearbook [now, Journal of Supreme Court History] 109
• "Governor Dan Moody and Business Progressivism in Texas," 1927-1931, M.A. thesis, Univ. of Texas at Austin, 1986
The “lawyering” series (in chronological order)
• "A Proposed Definition of the Term 'Lawyering',” 101 Law Library Journal 207 (2009)
• "Lawyering on Behalf of The Nondebtor Party in Anticipation, and During the Course, of an Executory Contract Counterparty's Chapter 11 Bankruptcy Case,"14 Houston Business & Tax Law Journal 230 (2013)
• "The Landlord’s Rejection-Damage Claim Under Bankruptcy Code § 502(b)(6): Lawyering the Allowed Claim Amount with Graphic and Mathematical Expressions, "31 American Bankruptcy Institute Journal No. 11 (2013)
• "Am I a 'Licensed Liar'?: An Exploration into the Ethic of Honesty in Lawyering . . . and a Reply of 'No!' to the Stranger in the La Fiesta Lounge, "7 St. Mary’s Journal on Malpractice and Legal Ethics 32 (2016)
• "Rx for Ailing Rural Public Hospitals: Chapter 9 Bankruptcy and Pro Bono Lawyering, "18 Houston Journal of Health Law & Policy 205 (2018)
• "'Listserv Lawyering': Definition and Exploration of Its Utility in Representation of Consumer Debtors in Bankruptcy and in Law Practice Generally," 11 St. Mary’s Journal on Malpractice and Legal Ethics (2021)
Other legal articles
• "AI Chatbots Are Useless for Bankruptcy Lawyering, papers.ssrn.com/sol3/papers.cfm?a bstract_id=4538847 (Aug. 13, 2023)
• "'Even if a Party Has a Change of Heart': A Framework for Enforcement of Courthouse-Steps Settlements Against Defaulting Parties in Cases and Proceedings in the Texas Bankruptcy Courts," 52 Texas Tech Law Review 199 (2020)
• "Enforcing a Pipeline Carrier’s Liens," Oil & Gas Financial Journal 34 (May 2017) (Co-author)
• "Chapter 11: Entering a New Generation," Texas Lawbook (Nov. 29, 2011)
• "The Fraudulent-Transfer Risk In Asset Acquisitions and Investments With Financially Distressed Parties in the United States," 4 Law & Financial Markets Review 32 (2010)
• "Arbitration in Bankruptcy Cases Under the Jurisprudence of the Fifth Circuit Court of Appeals and the District and Bankruptcy Courts in Texas," 43 Texas Journal of Business Law 447 (2009)
• "Recovering on Unsecured Loans in Chapter 13 Cases of Higher Income Borrowers," 63 Consumer Finance Law Quarterly Report 68 (2009)
• "Does the Fifth Circuit Need A BAP?," 5 State Bar of Texas, Bankruptcy Law Section, Newsletter No. 3 (2007)
• "The Oversecured Lender's Entitlement to Postpetition Interest, Fees, Costs, and Charges Pursuant to Section 506(b) of the Bankruptcy Code," 22 Texas Bank Lawyer No. 2, July 1998
• "The Texas Rule of Estoppel in Zoning Cases," 33 Baylor Law Review 241 (1981) (co-author)
Op-eds and Book Reviews
• "Reform the Electoral Count Act," Dallas Morning News, July 1, 2022, dallasnews.com/opinion/ commentary/2022/07/03/reform-the-electoral-count-act/
• ‘Individual right to decide’ fails with virus: Abbott is politicizing health, safety of Texans,” Austin American-Statesman, Aug. 22, 2021
• "Bill Would Impair Ch. 11 Mass Tort Resolution," Law360, July 30, 2021
• “Packing the Supreme Court Would Fail: Take a Lesson from Franklin Roosevelt’s Failed Attempt to Add Justices,” Dallas Morning News, www.dallasnews.com/opinion/commentary/ 2020/09/30/if-democrats-try-to-pack-the-supreme-court-they-will-fail-at-significant-cost/ (Sept. 30, 2020)
• “The Right to a Gun is Not Absolute,” Austin American-Statesman (June 20, 2019) https://www.statesman.com/opinion/20190620/opinion-right-to-gun-is-not-absolute
• Another View: New Plan to Save U.S. Auto Industry and Another View: How to Save General Motors, New York Times' DealBook (Mar. 23 & April 3, 2009) (co-author)
• Review of Gangster Tour of Texas by T. Lindsey Baker,” 24 Legacies: A History Journal for Dallas and North Central Texas, No. 2, 56 (2012)
• Review of Sands and Quicksands from the Red River—and North by William N. Stokes, Jr.,” 96 Southwest Historical Quarterly 147 (1992)
Historical and Scholarly Affiliations and Activities
• Charter Member, Alliance for Texas History, 2024
• Founder and Chair, Legal History Committee (fka Legal History Discussion Group), Dallas Bar Ass'n, 2007-present (conceived, recruited the speakers, organized, obtained MCLE accreditation for, and emceed 87 legal-historical programs to date, all presented at the Dallas Bar headquarters)
• Member, 2006-present, Chair 2006-2014 & 2018-present, Visiting Committee, Department of History, The University of Texas at Austin
• Life Member, American Society for Legal History ("ASLH"); Member, ASLH Annual Meetings and Conferences Committee, 2009-2017; Member, Editorial Board, H-LAW (blog of the ASLH), 1998-2017
• Member, American Historical Ass'n
• Member, Organization of American Historians
• Sustaining Life Member, Texas Law Review Ass'n
• Life Member, Texas Supreme Court Historical Society
• Member Dallas Bar Ass'n
• Dallas Bar Foundation
• Trustee and Fellow, Dallas Historical Society, and Member of its Collections Committee
Representative Legal Practice Experience (1978-2017)
• Individual debtor in Ch. 11 case in which SEC and IRS claims predominated
• Rural public hospital district in successful reorganization under Ch. 9 of the Bankruptcy Code
• Advisory work on structuring oil and gas and other industrial and commercial transactions in times of financial stress and insolvency
• 225-store retail grocery chain as debtor in Ch. 11; confirmation of plan of reorganization; resolution of disputed claims litigation
• Equity holder and estate-claims defendant in Ch. 11 liquidation of home-loan originator and servicer
• Secured equipment lender in Ch. 11 case of oil and gas drilling company; creditors’ plan of liquidation
• Parent and affiliates in mass-tort Ch. 11 case (consumer lending claims); settlements; plan approved; affirmed on appeal
• Ch. 11 relief for mass tort situations
• Chair of Unsecured Creditors Committee in Hawaiian/Japanese hotel Ch. 11
• DIP lender in mining company Ch. 11 case
• Noteholder group in mortgage company Ch. 11; creditors’ plan of liquidation
• Secured lender in acute care hospital Ch. 11 case
• Secured lender in restaurant companies’ Ch. 11 cases
• ILEC in Ch. 11 cases of CLECs
• Secured lenders in broadcasting restructurings and Ch. 11 cases
• Lenders and debtors in other restructurings and Ch. 11 cases—commercial real estate; finance companies; oil and gas production, refining, processing, and transmission; convenience store chains; manufacturing; retailing; transportation; agricultural warehousing, livestock auctions, and feedlots; and individuals
• Defense of receiver’s and trustees’ suits for fraudulent and preferential transfers
Legal-Profession Affiliations and Recognitions
• Member, American Law Institute, 2012-present
• Fellow, American College of Bankruptcy, 2016-present
• Contributing Author, Bloomberg Law: Bankruptcy Treatise, 2016-2021
• Chambers USA, Bankruptcy/Restructuring Law (Texas), 2006–2017
• Legal 500 U.S., Bankruptcy: Southwest, 2009; Corporate Restructuring: Including Bankruptcy, 2015
• The Best Lawyers in America (Woodward/White, Inc.), Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law, 2005−2017; Litigation–Bankruptcy, 2011−2017
• The Best Lawyers in America (Woodward/White, Inc.), "Lawyer of the Year" in Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law (Dallas/Fort Worth), 2016 & 2017
• Who’s Who Legal: Texas (Law Business Research Ltd.), Insolvency & Restructuring Law, 2007−2008
• Legal Media Group’s (Euromoney’s) Guide to the World’s Leading Insolvency & Restructuring Lawyers, 2009−2010 and 2012
• Life Fellow, Texas Bar Foundation and Dallas Bar Foundation
• Member, American Bar Association
• Member, State Bar of Texas