May 26, 2009
Interesting Split on Plain Meaning under BAPCA
Section 707(b)(2)(A)(iii)(I) (no, I am not making that up) of the bankruptcy statutes, which creates a "means test" for when a case can be dismissed for abuse of the bankruptcy system has created an interesting split, addressed in In re Stewart. __ F. Supp.2d __ (Bankr. D. Or. March 16, 2009). That court wrote in part: "Although most courts on either side of the split agree that interpretation of § 707(b)(2)(A)(iii)(I) is governed by the plain language of the statute, their interpretations differ."
Although the case presents, I am sure, an interesting question for bankruptcy lawyers, it also raises to me the interesting question of ambiguity: how can any court, once there is a split in meaning, say that plain meaning controls, and that the statute is unambiguous?
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" how can any court, once there is a split in meaning, say that plain meaning controls, and that the statute is unambiguous?"
Cf. Bank of Am. Nat'l Trust and Sav. Ass'n v. 203 N. LaSalle St. P'ship, 526 U.S. 434, 461 (1999) (Thomas, J., dissenting) ("A mere disagreement among litigants over the meaning of a statute does not prove ambiguity; it usually means that one of the litigants is simply wrong.").
[Of course, I'd anticipate that justices are less inclined than litigants to manufacture ambiguity, but e.g. Stevens/Breyer seem hell bent on using legislative history even when, by their own admission, the statutory language is clear. Thus, I am not surprised that they would call even a clear statute ambiguous so that they can pick out statements from a statute's legislative history to support their preferred result.]
Posted by: andy | Jun 15, 2009 9:10:24 PM
It's an interesting issue. Surely, dispute by litigants is not enough; but on the other end of the spectrum, if courts split, doesn't that suggest ambiguity? (The law, at least in textualist courts, disfavors finding ambiguity even then, but, c'mon...)
Posted by: David Hricik | Jun 22, 2009 1:27:23 PM