Statutory Construction Blog

BAPCPA: Officially a Bad Statute

So what is in my in-box this morning but this case:  In re Elmendorf, 345 B.R. 486 (Bankr. S.D.N.Y. 2006), where in interpreting a different provision of this week's Worst Statute in the World (see post below), the district court refused to dismiss a case where the debtor had interpreted the word "exception" to mean "exception" when, in fact, "exception" apparently means "extension."  The court stated that the debtor had "understandably misinterpreted a poorly drafted statute." (Discussing 11 USC 109(h)).

Now it's official.

Worst Statute in the World for August 18, 2006

Again with a nod to Keith Olbermann for the idea, I'd like to announce this week's Worst Statute in the World.  (Nominations are coming in and are encouraged -- email me.)

This week's winner is the Bankruptcy Abuse Prevention and Consumer Protection Act, affectionately known as "BAPCPA".  The statute has been held unconstitional in part, as noted by Kevin Chern over at the bankruptcy lawyer's blog.  Seems Congress decided to enact legislation that, among other things, prohibited bankruptcy attorneys from advising a person "to incur more debt in contemplation of such person filing a case under this title..."  11 U.S.C. 526(a)(4).  The problem, as I understand it, is that sometimes it's in the client's best interest to do this, and it's not illegal for the client to take on more debt.  In late July 2006, in Hersch v. U.S., Northern District of Texas held the statute unconstitional as violating the First Amendment.

BAPCPA section 526(a)(4) -- under which clients can't be told to do something that's legal and in their interest -- today's Worst Statute in the World!

Legislative Directives

In a post below, I raised up the use by legislatures of "interpretive directives." There are a variety of them now, but typically they "order" courts to consider far more than just the text, and even when the text is not ambiguous. Our book catalogs them, but I know there are many.

Here's my question or point to ponder: what do these directives mean? Textualists think that relying on legislative history allows judges to "legislative" by picking out favorable statements to support their interpretation. Do these directives mean, therefore, that legislators trust judges more than judges do? Are they power grabs by the legislature, intending to require judges to listen to and consider as "law" what one fellow from some small district thought the statute meant? Or, something else?

Personally, I'd thought they were signs that the legislatures didn't like textualism, but why? What do you suppose is going on?

Teaching Statutory Construction

Where I teach at Mercer, we have long-had a required course in "Statutory Interpretation." It has morphed in size and shape over the years, but in its current form is a 1-hour, third-semester course. I've learned recently that at least a few other schools are looking at creating a separate course in statutory interpretation but, so far as I know, we're the only school that requires it. (We require too much, but that's for another blog.)

I believe the course is teaching some valuable skills to students -- skills that are unintuitive and valuable. As you no doubt appreciate, statutes have become pervasive in this society, rendering statutory interpretation a skill likely as often applied by practicing lawyers as common law synthesis.

I actually think the course ought to be a 2-hour course, not 1. If you know of other schools that have a required course in interpretation (not legislation, as such, but interpreting enacted text), I'd love to know.

A Typo in a Bill Raises Constitutional Issues

A law.com story by Tresa Baldas explains that when the Senate approved the Deficit Reduction Act, it contained a provision concerning the funding of reimbursements of certain Medicare products that lasted 13 months. However, in the House, due to a clerk's error "13" became "36." That Act, as you can imagine, had a lot of provisions affecting all sorts of things dear to the heart of many interest groups.

Thus, the typo is being used to challenge enactment of the bill. The Government has argued that the courts lack authority to examine the truth, because the leader of each House attested that the identical bill had passed both Houses -- a Constitutional requirement, of course. Opponents argue that the bill is unconstitutional.

The facts seem to support the bill's unconstitutionality. From what I can tell from the materials on line, there's no dispute that the bill that passed the Senate is not the bill that passed the House. The only question is: what to do. I'm no expert in this area, but based upon my understanding of the cases in this area, this seems like a clear case where a litigant with standing to challenge a provision of the bill ought to be able to raise lack of enactment. This isn't some failure to follow an internal procedural rule: it's a constitutional failure. The bill wasn't enacted by both houses.

So far, a couple of district courts have wrassled with the issue, and, I suspect, so too will appellate and perhaps even the Supreme Court.