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June 24, 2009

Harvard Note on Hersh v. United States - DRA Constitutional Law Issue

Thanks to a reader.  The article BANKRUPTCY LAW — FIFTH CIRCUIT APPLIES DOCTRINE OF CONSTITUTIONAL AVOIDANCE TO UPHOLD ATTORNEY SPEECH RESTRICTIONS IN BANKRUPTCY CODE. — Hersh v. United States ex rel. Mukasey, 553 F.3d 743 (5th Cir. 2008) can be accessed here. 

"Where [the doctrine of constitutional avoidance] once applied only in cases of ambiguity, it is now occasionally misapplied in cases where there is no serious doubt as to the statute’s meaning.  In these latter cases, judges simply rewrite unconstitutional legislation to make it constitutional. Enter Section 526(a)(4) of the Bankruptcy Code."  Pretty good stuff.  

"The Fifth Circuit stands alone in its interpretation of Section 526(a)(4); every other court to consider the issue has held the provision unconstitutional.  The Hersh court’s evasion of such a result using
constitutional avoidance was inappropriate." 

"The proper course of action is simply to strike Section 526(a)(4) from the Bankruptcy Code. The provision’s meaning is clear and is clearly unconstitutional."

June 24, 2009 in Supreme Court | Permalink

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