Principled principles of statutory interpretation: A judicial perspective after two years of BAPCPA

American Bankruptcy Law Journal

Volumn 81, Issue 3, 2007, Pages 195-232

  Waldron, Thomas F ^a   Berman, Neil M ^a  

^a Southern District of Ohio ^*

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EID: 36348947486     PISSN: 00279048     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (166)

1. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992) (citations omitted).
2. Id. at 253 (citations and internal quotation marks omitted).
3. United States v. Fisher, 2 Cranch 358, 386 (1805) (Marshall, C.J.), quoted in Lamie v. U.S. Trustee, 540 U.S. 526, 543 n.1 (2004) (Stevens, J., concurring).
4. Pub. L. No. 109-8, 119 Stat. 23 (2005). We refer to the legislation as "BAPCPA" throughout the article. Most of the provisions of BAPCPA became effective as of October 17, 2005, although there were some exceptions. For a summary of the effective dates for various BAPCPA provisions, see Hon. William Houston Brown and Lawrence Ahern III, 2005 BANKRUPTCY REFORM LEGISLATION WITH ANALYSIS, §§ 1.3, 1.4 and 1.5 (Feb. 2006).
5. As of the publication of this article, appellate opinions on the meaning of BAPCPA are still limited, but a few cases have reached that stage. See, e.g., In re Wright, 492 F.3d 829 (7th Cir. 2007) (creditor entitled to an unsecured deficiency claim on a surrendered "910 car"); Daimlerchrysler Fin. Svcs. Americas LLC v. Quick (In re Quick), 371 B.R. 459 (B.A.P. 10th Cir. 2007) (creditor not entitled to an unsecured deficiency claim on a surrendered "910 car"); Jumpp v. Chase Home Fin., LLC (In re Jumpp), 356 B.R. 789 (B.A.P. 1st Cir. 2006) (The stay termination of 11 U.S.C. § 362(c)(3) is limited to property of the debtor.); Dixon v. LaBarge (In re Dixon), 338 B.R. 383 (B.A.P. 8th Cir. 2006) (dismissal is the appropriate remedy for a debtor who is not eligible to be in bankruptcy due to the failure to comply with the briefing requirement of 11-U.S.C. § 109(h).
6. See, e.g., In re Jones, 352 B.R. 813, 825-26 (Bankr. S.D. Tex. 2006) (decision reviews a legal conflict between judges in the same district about whether, upon finding a debtor ineligible for failure to comply with 11 U.S.C. § 109(h), the case should be dismissed or the petition struck from the court's records.). Sometimes, consistency is difficult to find even in the decisions of a single judge. In determining it was not appropriate to consider the Internal Revenue Manual in a particular case, one judge "confessf[ed] with chagrin" that she did exactly that in another reported decision and noted that, "[s]uch, it appears, is the nature of BAPCPA jurisprudence - courts not only are inconsistent with the decisions of other courts, but this Court, at least, is inconsistent with its own." In re Sawdy, 362 B.R. 898, 913, n. 4 (Bankr. E.D. Wisc. 2007).
7. See David Gray Carlson, Means Testing: The Failed Bankruptcy Revolution of 2005, 15 AM. BANKR. INST. L. REV. 223, 227 (Spring 2007) ("To be sure, BAPCPA adds a great amount of detail and is rife with bad draftsmanship, dumbfounding contradictions, and curious, even comical, special interest exceptions. It is hard to choke out any words of admiration for the quality of BAPCPA's draftsmanship. Judges and scholars have not hesitated to pour scorn on Congress for the details of BAPCPA.") (footnote omitted). However, there was at least one law professor, who testified before the Senate Judiciary Committee, stating that the legislation was "fine as it is", adding, "There is no word that I would change in this particular piece of legislation." In re Kane, 336 B.R. 477, 481, n. 7 (Bankr. D. Nev. 2006), citing Sen. Jud. Comm., Hearing on S. 256: Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 109th Cong., unofficial transcript (Feb. 10, 2005). For the professor's response, arguing the comment was not quoted in its proper context, and additional comments, see http://www.volokh.com/posts/1143601581. html.
8. See U.S. Const., art. 1, § 8, cl. 4, which, among other things, gives Congress the power to establish "uniform laws on the subject of Bankruptcies throughout the United States." Nevertheless, with the possible exception of discrete issues, such as the new debt relief agency provisions and their effect on attorney speech, BAPCPA appears constitutional. See Schultz v. United States, 369 B.R. 349 (E.D. Tenn. 2007) (means test provisions of BAPCPA are constitutional because they are based on national statistics; decision also reviews the uniformity requirement generally). See also Erwin Chemerinsky, Constitutional Issues Posed in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 79 AM. BANKR. LJ. 571 (Summer 2005) (reviewing constitutional issues in specific sections of BAPCPA).
9. For example, the sheer volume of reported decisions on the new credit briefing requirement, 11 U.S.C. § 109(h), which, regardless of one's view of its efficaciousness, is a relatively simple idea, suggests a lack of linguistic clarity. Reported decisions have struggled with such minutiae as to whether a debtor need to attend the briefing at least a calendar day before the petition is filed. See In re Barbaran, 365 B.R. 333 (Bankr. D.D.C. 2007) (the court reversed its earlier reported decision, In re Mills, 341 B.R. 106 (Bankr. D.D.C. 2006), and held the credit briefing could occur on the same calendar day that the petition was filed).
10. See, e.g., Hon. Keith M. Lundin, Ten Principles of BAPCPA: Not What Was Advertised, 24 AM. BANKR. INST. J. 1, 70 (September 2005) ("Whether by design or default, bankruptcy petitioners and judges will spend decades unraveling cross-references that lead nowhere and interpreting new terms of art that fail to communicate.") (footnote omitted); Henry J. Sommer, Trying to Make Sense out of Nonsense: Representing Consumers Under the "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005", 79 AM. BANKR. L.J. 191, 191 (Spring 2005) ("One of the chief problems that will be confronted is atrocious drafting, especially in many of the consumer provisions of the bill.").
11. As one court noted in construing provisions addressing one of BAPCPA's changes to the automatic stay: In an Act in which head-scratching opportunities abound for both attorneys and judges alike, § 362(c)(3)(A) stands out. It uses the amorphous phrase "with respect to" a total of four times in short order and raises questions about the meaning of the words "action taken," and "to the debtor." The language of the statute is susceptible to conflicting interpretations, and if read literally, would apply to virtually no cases at all. In sum, it's a puzzler. In re Paschal, 337 B.R. 274, 277 (Bankr. E.D.N.C. 2006).
12. However, when Congress chooses to act, it does not hesitate. In August 2006, a court determined that, under BAPCPA, in a chapter 13 case, the means test prohibited above median family income debtors from taking deductions for charitable contributions. In re Diagostino, 347 B.R. 116 (Bankr. N.D.N.Y. 2006). By December 2006, a new law was enacted to allow such deductions. Religious Liberty and Charitable Donation Clarification Act of 2006, Pub. L. No. 109-439, 120 Stat. 3285 (2006).
13. Of course, only a few bankruptcy cases ever reach the Supreme Court. Even when they do, these decisions sometimes lead to more uncertainty and a new round of litigation. In a 4-4-1 split, plurality decision concerning the appropriate interest rate for chapter 13 secured creditors subject to cramdown, Justice Scalia candidly commented that "[t]oday's judgment is unlikely to burnish the Court's reputation for reasoned decisionmakmg." Till v. SCS Credit Corp, 541 U.S. 465, 508 (2004).
14. Daniel J. Bussell, "Plain Meaning" Cases Lead to Costly and Flawed Amendments to the Bankruptcy Code, 19 AM. BANKR. INST. J. 1, 41 (August 2000).
15. Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908).
16. Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., Inc., 989 F.2d 1305, 1308 (2d Cir. 1993) (emphasis in original; internal citations omitted).
17. Thompson v. Oklahoma, 487 U.S. 815, 858 (1988), quoting Brown v. Allen, 344 U.S. 443, 540 (1953) (opinion concurring in result).
18. See In re Clark, 363 B.R. 492, 497 (Bankr. N.D. Miss. 2007) ("[T]his court is convinced that its earlier ruling. . .was erroneous.").
19. In re TCR of Denver. LLC, 338 B.R. 494, 499 (Bankr. D. Colo. 2006). 20 H.R. Rep. No. 109-31(1) (2005), reprinted in 2005 U.S.C.C.A.N. 88. 21 In re Abdul Muhaimin, 343 B.R. 159, 167, n. 5 (Bankr. D. Md. 2006). 22 In re Rowe, 342 B.R. 341, 349 (Bankr. D. Kan. 2006) (citations omitted).
20. In re Donald, 343 B.R. 524, 535-36 (Bankr. E.D.N.C. 2006).
21. In re Carver, 338 B.R. 521, 523 (Bankr. S.D. Ga. 2006) (internal citations and quotation marks omitted).
22. See, e.g., In re Paschal, 337 B.R. 274 (Bankr. E.D.N.C. 2006); In re Johnson, 335 B.R. 805 (Bankr. W.D. Tenn. 2006).
23. See, e.g., In re Jumpp, 344 B.R. 21 (Bankr. D. Mass. 2006), vacated by 356 B.R. 789 (B.A.P. 1st Cir. 2006); In re Jupiter, 344 B.R. 754 (Bankr. D.S.C. 2006); In re Curry, 362 B.R. 394 (Bankr. N.D. 111. 2007).
24. In re McNabb, 326 B.R. 785, 788-89 (Bankr. D. Ariz. 2005). 28 In re Kane, 336 B.R. 477, 489 (Bankr. D. Nev. 2006).
25. Lee Dembart and Bruce A. Markell, Alive at 25? A Short Review of the Supreme Court's Jurisprudence, 1979-2004, 78 AMER. BANKR. L.J. 373, 387 (Fall 2004).
26. John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70, 71 (2006) (footnote omitted).
27. Id. at 71-72.
28. Id. (footnotes omitted).
29. Jerry L Mashaw, Textualism, Constitutionalism and the Interpretation of Federal Statutes, 32 WM. & MARY L. REV. 827, 842 (Summer 1991).
30. For a review of the early development of this approach to statutory interpretation by Justice Scalia, Judge Easterbrook and others, see William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 650-57 (April 1990). The "new textualists", in the most general sense, contrast themselves from older text focused schools of interpretation by considering context. That is, the "new textualists" believe that words cannot simply be interpreted from the language itself, without considering how the particular user of the words would understand the language in the context they are being used. See John L. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2456-66 (June 2003).
31. See Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 28 (2006) ("[T]extualists emphasized that the legislative process is messy and full of compromises, some principled and some unprincipled.") (footnote omitted).
32. Id. at 2 (footnotes omitted).
33. Marrama v. Citizens Bank of Massachusetts, 127 S.Ct. 1105 (2007).
34. Id. at 1109.
35. Id. at 1107.
36. Id. at 1107-08.
37. Id. at 1110-11.
38. 11 U.S.C. § 706(a).
39. The minority opinion, based on its interpretation of the plain language of § 706(a), would allow a chapter 7 debtor an absolute one time to right to convert to chapter 13, even though the case may be immediately returned to chapter 7. Id. at 1112. The majority opinion referred to this course of events as a "procedural anomaly." Id. at 1108.
40. Id. at 1107, citing Grogan v. Garner, 498 U.S. 279, 286, 287 (1991) (internal quotation marks omitted).
41. Id. (footnote omitted).
42. Id. at 1110.
43. Id, quoting S. Rep. 95-989, p. 94 (1978). The majority opinion also notes that "nearly identical language" appears in H.R. Rep. No. 95-595, p. 380 (1977).
44. Id.
45. Id. at 1110-11.
46. Bad faith is considered a basis to dismiss "for cause" under 11 U.S.C. § 1307(c). Id. at 1111.
47. Id. at 1111.
48. Id. at 1113.
49. Id.
50. Id. at 1111-12.
51. Id. at 1111.
52. See Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206 (1988) ("The short answer to these arguments is that whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code.").
53. Marrama, 127 S.Ct. at 1112 (footnotes omitted).
54. Id. at 1116-17.
55. Travelers Cas. and Sur. Co. of Am. v. Pacific Gas & Elec. Co., 127 S.Ct. 1199 (2007).
56. Fobian v. Western Farm Credit Bank (In re Fobian), 951 F.2d 1149 (9th Cir. 1991).
57. Travelers, 127 S.Ct. at 1203, quoting in part Fobian at 1153 (citation omitted).
58. Id. at 1205-06.
59. Id. at 1206.
60. Id. at 1206 (internal citations omitted). 65 Marrama, 112 S.Ct. at 1110-11.
61. Hon. Marjorie O. Rendell, 2003 - A Year of Discovery: Cybergenics and Plain Meaning in Bankruptcy Cases, 49 VILL. L. REV. 887, 887 (2004). Nevertheless, the author opines, at least in terms of rhetoric, an effective argument to the court must begin with a plain meaning analysis before other arguments are presented. Id. at 887-89.
62. Bank of Marin v. England, 385 U.S. 99, 103 (1966).
63. U.S. v. Ron Pair Enters., Inc., 489 U.S. 235, 249 (1989), quoting United States v. Monia, 317 U.S. 424, 431 (1943) (dissenting opinion).
64. Ron Pair, 489 U.S. at 241-42.
65. See also Daniel J. Bussell, Textualism's Failures: A Study of Overruled Bankruptcy Court Decisions, 53 VAND. L. REV. 887, 894-898 (April, 2000) (criticizing the textualist analysis in the Ron Pair decision).
66. Dewsnup v. Timm, 502 U.S. 410, 435 (1992) (Scalia, J., dissenting). In another decision, Justice Scalia again commented on the lack of consistency in statutory interpretation methodology by the Supreme Court and the impression he believed it created: When the phrase "applicable nonbankruptcy law" is considered in isolation, the phenomenon that three Courts of Appeals could have thought it a synonym for "state law" is mystifying. When the phrase is considered together with the rest of the Bankruptcy Code (in which Congress chose to refer to state law as, logically enough, "state law"), the phenomenon calls into question whether our legal culture has so far departed from attention to text, or is so lacking in agreed-upon methodology for creating and interpreting text, that it any longer makes sense to talk of "a government of laws, not of men." Speaking of agreed-upon methodology: It is good that the Court's analysis today proceeds on the assumption that use of the phrases "state law" and "applicable nonbankruptcy law" in other provisions of the Bankruptcy Code is highly relevant to whether "applicable nonbankruptcy law" means "state law" in § 541(c)(2), since consistency of usage within the same statute is to be presumed. This application of a normal and obvious principle of statutory construction would not merit comment, except that we explicitly rejected it, in favor of a one-subsection-at-a-time approach, when interpreting another provision of this very statute earlier this Term. "[W]e express no opinion," our decision said, "as to whether the words [at issue] have different meaning in other provisions of the Bankruptcy Code." I trust that in our search for a neutral and rational interpretive methodology we have now come to rest, so that the symbol of our profession may remain the scales, not the seesaw. Patterson v. Shumate, 504 U.S. 753, 766-67 (1992) (Scalia, J., concurring; internal citations omitted).
67. Lance Phillip Timbreza, The Elusive Comma: The Proper Role of Punctuation in Statutory Interpretation, 24 QLR 63, 64-65 (2005), quoting Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401 (1950).
68. It has been repeated, in sum and substance, in countless reported decisions, that: As the United States Supreme Court has instructed courts in examining the provisions of the Bankruptcy Code, "[w]e have stated time and time again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." That statement is consistent with the United States Supreme Court's principles that statutory interpretation is a holistic endeavor which must begin with the language of the statute itself. Resort to an examination of legislative history is appropriate only to resolve statutory ambiguity, and in the final analysis, such examination must not produce a result demonstratively at odds with the purpose of the legislation. The Sixth Circuit has likewise noted that statutes "must be read in a 'straightforward' and 'commonsense' manner," and that "[w]hen we can discern an unambiguous and plain meaning from the language of a [statute], our task is at an end." Andersson v. Sec. Fed. Sav. & Loan of Cleveland (In re Andersson), 209 B.R. 76, 78 (B.A.P. 6th Cir. 1997) (internal citations omitted).
69. For an example of the use of dictionary definitions by the Supreme Court, see Rousey v. Jacoway, 544 U.S. 320, 326 (2005).
70. As Justice Scalia noted in a decision critical of the analysis of the lower appellate court: It is regrettable that we have a legal culture in which such arguments have to be addressed (and are indeed credited by a Court of Appeals), with respect to a statute utterly devoid of language that could remotely be thought to distinguish between long-term and short-term debt. Since there was here no contention of a "scrivener's error" producing an absurd result, the plain text of the statute should have made this litigation unnecessary and unmaintainable. Union Bank v. Wolas, 502 U.S. 151, 163 (1991) (Scalia, J., concurring).
71. Midlantic Nat. Bank v. New Jersey Dept. of Envtl. Prot., 474 U.S. 494, 501 (1986).
72. Avoiding surplusage, like any statutory interpretation tool, is not absolute, but one with prescribed conditions: Surplusage does not always produce ambiguity and our preference for avoiding surplusage constructions is not absolute. . . . Where there are two ways to read the text-either attorney is surplusage, in which case the text is plain; or attorney is nonsurplusage (i.e., it refers to an ambiguous component in § 330(a)(1)), in which case the text is ambiguous-applying the rule against surplusage is, absent other indications, inappropriate. We should prefer the plain meaning since that approach respects the words of Congress. In this manner we avoid the pitfalls that plague too quick a turn to the more controversial realm of legislative history. Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004) (internal citations omitted).
73. Bank of Am. Nat. Trust and Sav. Ass'n v. 203 North LaSalle Street P'ship, 526 U.S. 434, 461 (1999) ("In Dewsnup, the Court held, based on pre-Code practice, that § 506(d) of the Code prevented a Chapter 7 debtor from stripping down a creditor's lien on real property to the judicially determined value of the collateral." internal citations omitted). However, the Supreme Court has also admonished the lower courts that "while pre-Code practice informs our understanding of the language of the Code, it cannot overcome that language. It is a tool of construction, not an extratextual supplement." Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 10 (2000) (internal citations and quotation marks omitted).
74. A neologism is "a new word, usage, or expression", sometimes redefining a known term. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1981), p. 1516. The Court has explained that "'[I]t is generally presumed that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another,' and that presumption is even stronger when the omission entails the replacement of standard legal terminology with a neologism." BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994) (internal citation omitted).
75. Id. at 556-57 ("A common rule of construction calls for a single definition of a common term occurring in several places within a statute . . . and the case for different definitions within a single text is difficult to make[.]")(internal citations and quotation marks omitted).
76. In current supreme court jurisprudence, policy consequences are not generally considered. See, e.g., Union Bank v. Wolas, 502 U.S. 151, 158 (1991) ("The fact that Congress may not have foreseen all the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning.") (citation omitted). However, policy consequences are specifically given weight when two competing statutes must be reconciled, such as the Bankruptcy Code and ERISA. See Alan Schwartz, The New Textualism and the Rule of Law Subtext in the Supreme Court's Bankruptcy Jurisprudence, 45 N.Y.L. SCH. L. REV. 149, 151 (2000-2001).
77. "An maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another." BLACK'S LAW DICTIONARY 403 (6th ed. abridged). For an application of this principle, see Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992).
78. Jean Braucher, The Challenge To The Bench And Bar Presented By The 2005 Bankruptcy Act: Resistance Need Not Be Futile, 2007 U. ILL. L. REV. 93, 99 (2007).
79. Bankers Life and Cas. Co. v. United States, 142 F.3d 973, 982 (7th Cir. 1998) (citation omitted).
80. A recent bankruptcy decision of the Supreme Court considered legislative history before even discussing the relevant statutory text. Marrama v. Citizens Bank of Massachusetts, 127 S.Ct. 1105, 1109-10 (2007).
81. One author notes Public Citizen v. United States Dep't of Justice, 491 U.S. 440 (1989) as the Supreme Court's "most extensive discussion of the absurdity doctrine." Glen Staszewski, Avoiding Absurdity, 81 IND. L.J. 1001, 1047 (Summer 2006). In a concurring opinion written by Justice Kennedy, joined by Chief Justice Rehnquist and Justice O'Connor, absurdity is defined narrowly as "where it is quite impossible that Congress could have intended the result . . . and where the alleged absurdity is so clear as to be obvious to anyone." Public Citizen, 491 U.S. at 471. However, in the majority opinion of the same case, absurdity appears to be defined more broadly to include a situation where it is "unreasonable to believe that the legislator intended to incude the particular act." Id. at 454, citing Holy Trinity v. United States, 143 U.S. 457, 459 (1892). See also Stawzewski at 1047-50 (discussion of the Supreme Court's different applications of the absurdity doctrine).
82. See Stephen Breyer, The 1991 Justice Lester W. Roth Lecture, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 848-49 (January 1992) (noting that, dating back to the writings of Blackstone, absurdity is an exception to the mandate to follow the literal language of a statute and Justice Scalia has recognized the doctrine in limited circumstances).
83. Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004).
84. Id.
85. See United States v. Granderson, 511 U.S. 39, 68-69 (1994) (Kennedy, J, concurring) ("It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think, perhaps along with some Members of Congress, is the preferred result.") (citation omitted)
86. See Exxon Mobil Corp. v. Allapattah Svcs., Inc., 545 U.S. 546, 572 (2005) (Stevens, J., dissenting) ("Because ambiguity is apparently in the eye of the beholder, I remain convinced that it is unwise to treat the ambiguity vel non of a statute as determinative of whether legislative history is consulted. Indeed, I believe that we as judges are more, rather than less, constrained when we make ourselves accountable to all reliable evidence of legislative intent.").
87. See id. A purposivist approach would approve ignoring the plain meaning of a statute, even where the statute has a reasonable purpose consistent with its plain meaning, if the legislative history, a conference committee report of both Houses of Congress, demonstrates convincingly that the purpose, reasonable or not, was not the purpose Congress intended for the statute.
88. Begier v. I.R.S, 496 U.S. 53, 68 (1990).
89. Exxon Mobil, 545 U.S. at 568 (internal citations omitted). The philosophical differences between Justices Scalia and Breyer on the appropriate use of legislative history are often debated in their decisions. For an example, compare Justice Scalia's majority opinion and Justice Breyer's dissent in F.C.C. v. NextWave Pers. Commc'ns, Inc., 537 U.S. 293 (2003).
90. See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S.Ct. 2455, 2474 (2006) (Breyer, J, dissenting) ("I cannot agree with the majority's conclusion. Even less can I agree with its failure to consider fully the statute's legislative history. That history makes Congress' purpose clear. And our ultimate judicial goal is to interpret language in light of the statute's purpose. Only by seeking that purpose can we avoid the substitution of judicial for legislative will. Only by reading language in its light can we maintain the democratic link between voters, legislators, statutes, and ultimate implementation, upon which the legitimacy of our constitutional system rests.").
91. Breyer, supra note 87, at 860-61.
92. Id. at 861-82 (footnotes omitted).
93. Id. at 863 (footnotes omitted).
94. Id. at 863-64.
95. On the Supreme Court's use of legislative history, see generally Norman J. Singer, 2A SUTHERLAND STATUTORY CONSTRUCTION, § 48A:11 (6th ed. March 2005) and Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 WIS. L. REV. 205 (2000).
96. H.R. 2500, 105th Cong. (1997).
97. S. 1301, 105th Cong. (1997).
98. For a complete view of how BAPCPA became law after years of failed attempts, see Susan Jensen, A Legislative History of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 79 AM. BANKR. L.J. 485 (Summer 2005).
99. See Thornburg v. Gingles, 478 U.S. 30, 44 n.7 (1986) ("We have repeatedly recognized that the authoritative source for legislative intent lies in the Committee Reports on the bill.") (citations omitted); United States v. Awadallah, 349 F.3d 42, 54 (2nd Cir. 2003) ("[T]he authoritative source for finding the Legislature's intent lies in the Committee Reports on the bill, which represent[t] the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation.") (internal quotation marks and citation omitted).
100. There was no Conference Committee Report because there was no Conference Committee. The House Judiciary Committee did not approve any amendments to the Senate version of the bill [S. 256, 109th Cong. (2005)] and the House of Representatives, by rule, did not permit any amendments. See Jensen, supra note 103, at 565-66.
101. One bankruptcy court observed: Legislative history is virtually useless as an aid to understanding the language and intent of BAPCPA. The section-by-section analysis in the Report of the House Committee on the Judiciary merely provides a gloss of the statutory language of BAPCPA § 322. It does not provide an example of the kind of problem or abuse it was intended to correct, nor a citation to a case whose result it sought to alter. In re McNabb, 326 B.R. 785, 789 (Bankr. D. Az. 2005). But see In re Kaplan, 331 B.R. 483, 487-88 (Bankr. S.D. Fla. 2005) (Court found that the legislative history on 11 U.S.C. § 522(p) and (g) were "replete with references" in "clear conflict" with the result in McNabb.).
102. See Begier v. I.R.S, 496 U.S. 53, 64 n.5 (1990) (The majority opinion, in reference to the passage of the Bankruptcy Code of 1978, noted that "Congress was unable to hold a conference, so the Senate and House floor managers met to reach compromises on the differences between the two bills." The majority opinion treated these "floor statements ... as persuasive evidence of Congressional intent.").
103. See Weingarten Nostat, Inc. v. Serv. Merch. Co, Inc., 396 F.3d 737, 742 (6th Cir. 2005) (cited consistent reports of the House of Representatives and the Senate for legislative history).
104. In addition, due to the long history of failed efforts to enact bankruptcy reform prior to the enactment of BAPCPA, some reported decisions cite to the legislative history of prior bankruptcy reform bills which never became law. See In re Quevedo, 345 B.R. 238, 243-46 (Bankr. S.D. Cal. 2006).
105. H.R. Rep. No. 109-31(I) (2005), reprinted in 2005 U.S.C.C.A.N. 88, 92. See also 151 Cong. Rec. S2470 (daily ed. March 10, 2005) (statement of Sen. Nelson), cited in In re Ellringer, 2007 WL 1976750, at *3 (Bankr. D. Minn. 2007) ("First and foremost, the bill will curb abuse of the bankruptcy system by implementing a means test to ensure that those who can afford to repay some portion of their unsecured debts are required to do so.").
106. In re Sorrell, 359 B.R. 167, 177-78 (Bankr. S.D. Ohio 2007) (internal citations omitted). But see also In re Pertfetto, 361 B.R. 27, 30, n. 6 (Bankr. D.R.I. 2007) (In considering an interpretation of the text of § 707(b) that would allow a debtor to file chapter 13, immediately convert to chapter 7 and avoid the hurdle of the means test, the court noted, in taking a common sense approach, and without citation to any particular legislative history, that "[a]nyone not in a sound sleep would know that was the last thing the 109th Congress would have intended.").
107. The use of the Official Bankruptcy Forms for BAPCPA, like all Official Forms, is mandatory. The Interim Bankruptcy Rules are not mandatory, but were adopted by the bankruptcy courts throughout the country. The Interim Bankruptcy Rules, with changes and revisions, will likely be adopted as permanent, mandatory Bankruptcy Rules by the Judicial Conference of the United States and ultimately approved by the Supreme Court. See generally 28 U.S.C. § 2075 (Providing that "[t]he Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure in cases under Title 11."). For more details on the process, see http://www.uscourts.gov/rules/index.html.
108. In re Fox, 370 B.R. 639, 645 (Bankr. D.N.J. 2007).
109. Lamie v. U.S. Trustee, 540 U.S. 526, 542 (2004) (internal citation omitted). See supra note 12.
110. See generally John Rao, Testing The Limits Of Statutory Construction Doctrines: Deconstructing The 2005 Bankruptcy Act, 55 AM. U.L. REV. 1427 (June 2006) (discussion of many of the statutory issues BAPCPA's drafting has created).
111. See 11 U.S.C. § 101(39A) (defining "median family income").
112. Cf. In re Kolb, 366 B.R. 802 (Bankr. S.D. Ohio 2007) (Projected disposable income is based on BAPCPA's new statutorily defined procedures for determining disposable income, projected over the applicable commitment period of the plan) and In re Upton, 363 B.R. 528 (Bankr. S.D. Ohio 2007) (Projected disposable income is not restricted to BAPCPA's new statutorily defined procedures for determining disposable income and may include a consideration of the debtor's schedules, with the exception of any social security income on the debtor's schedules). 118 11 U.S.C. § 101(10A).
113. See 11 U.S.C. § 1325(b)(3) (applying the statutorily defined expenses of § 707(b) for above median family income debtors).
114. 11 U.S.C. § 1325(b)(1)(B) (emphasis added).
115. In re Alexander, 344 B.R. 742, 749 (Bankr. E.D.N.C. 2006).
116. See, e.g., In re Demonica, 345 B.R. 895, 900 (Bankr. N.D. Ill. 2006).
117. See, e.g., In re Jass, 340 B.R. 411, 416 (Bankr. D. Utah 2006).
118. See, e.g., In re Grady, 343 B.R. 747, 752 (Bankr. N.D. Ga. 2006).
119. See, e.g., In re Casey, 356 B.R. 519, 522-23 (Bankr. E.D. Wash. 2006).
120. In re Kolb, 366 B.R. 802, 815 (Bankr. S.D. Ohio 2007).
121. Id. Some reported decisions, on both sides of the debate, have recognized that under BAPCPA, § 707(b)(2)(B) applies a new statutory standard, "special circumstances." Jass, 340 B.R. at 418-19; In re Hanks, 362 B.R. 494, 501-02 (Bankr. D. Utah 2007).
122. See Jass, 340 B.R. at 419 (Court finding that the formulaic calculation of disposable income will be changed in "only in rare circumstances" and "[a]s a general rule, Debtors should not expect the bottom line determined from Schedules I and J to trump the calculations of a properly completed Form B22C.").
123. See Kibbe v. Sumski (In re Kibbe), 361 B.R. 302, 2007) ("Rigid adherence to a debtor's prepetition income history would commonly produce results at odds with both congressional purpose and common sense").
124. "Due to the changes in calculating income, and other changes under BAPCPA, the reality of almost all chapter 13 debtors is unlikely to match the formulas of BAPCPA. For above median family income debtors, the problem is worse, because, due to the formulaic expenses BAPCPA employs for these debtors, expenses can also be artificially inflated in order to propose confirmable plans with little, or no dividend for the unsecured creditors. See In re Alexander, 344 B.R. 742, 750 (Bankr. E.D.N.C. 2006) ("For any number of reasons, because a debtor has income not counted in the definition of current monthly income, has housing or transportation expenses less than the permissible IRS deductions, has huge secured debt for luxury items that, bizarrely, may be deducted in full as a reasonable and necessary expense, or wishes to continue to contribute to or repay a loan to her 401(k) plan rather than pay her unsecured creditors, a debtor under the new "disposable income" test may show a zero or negative number, yet may be able to make the required showing that she actually has enough income to fund a confirmable plan.").
125. See Kolb, 366 B.R. at 820 ("The court recognizes that this Debtor may never be able to pursue a confirmable plan .... The reason is simple. The Debtor's schedules of income and expenses reveal she may not have the actual income necessary . . . .").
126. See, e.g., id. at 815 ("Significantly, Congress decided to place the definition of 'disposable income' within the same subsection of § 1325 that requires a debtor, upon objection to confirmation, to pay all of his
127. See Alexander, 344 B.R. at 749 ("If 'disposable income' is not linked to 'projected disposable income' than it is just a floating definition with no apparent purpose."); Kolb, 366 B.R. at 815 (Due to the structure of § 1325(b), projected disposable income cannot be not a separate term from disposable income, nor can it have a "separate meaning" for determining a debtor's plan payment to unsecured creditors).
128. See Hanks, 362 B.R. at 499. It has also been argued that the word "projected", even if surplusage, was exactly the same prior to BAPCPA. See Kolb, 366 B.R. at 817 ("That Congress has chosen a different calculation for determining disposable income to be projected does make the superfluous word argument any more compelling than it would have been before BAPCPA."). The counterargument is that since BAPCPA's version of disposable income, unlike pre-BAPCPA law, considers mostly past income and expenses, Congress, by retaining the word "projected", intended to differentiate between "disposable income" and the "future oriented" concept of "projected disposable income." In re Slusher, 359 B.R. 290, 296-97 (Bankr. D. Nev. 2007).
129. See Hanks, 362 B.R. at 499 ("[O]ne word clearly should not be elevated in importance so as to gut an entire statutory scheme enacted by Congress."). One realization from analyzing the weight to give the word "projected", by only reviewing the language Congress chose in another section of BAPCPA, is that Congress does not necessarily appreciate the difference between disposable income and projected disposable income. In a new provision applying chapter 13 to individual chapter 11 cases, the statute cross references the term projected disposable income incorrectly. See 11 U.S.C. § 1129(a)(15)(B) (incorrectly referring to "projected disposable income of the debtor (as defined in section 1325(b)(2)"). While such an error could arguably be dismissed as a simple "scrivener error", it is a relevant source of text from another section of BAPCPA which raises the question about how much weight Congress gave the word "projected." Kolb, 366 B.R. at 816, n.18.
130. See supra note 12.
131. In re Wright, 492 F.3d 829 (7th Cir. 2007).
132. Daimlerchrysler Fin. Svcs. Americas LLC v. Quick (In re Quick), 371 B.R. 459 (B.A.P. 10th Cir. 2007).
133. The nomenclature "hanging paragraph" is due to that fact that Congress added the following language to 11 U.S.C. § 1325(a), but did not include it in any particular subsection of § 1325(a): "For purposes of paragraph (5), section 506 shall not apply to a claim described in that paragraph if the, creditor has a purchase money security interest securing the debt that is the subject of the claim, the debt was incurred within the 910-day preceding the date of the filing of the petition, and the collateral for that debt consists of a motor vehicle (as defined in section 30102 of title 49) acquired for the personal use of the debtor, or if collateral for that debt consists of any other thing of value, if the debt was incurred during the 1-year period preceding that filing."
134. It is worth noting that, despite this article's earlier statement that there is little consensus on much of the enacted text in BAPCPA, and the provisions of the "hanging paragraph" of 11 U.S.C. § 1325(a) certainly remain subject to considerable dispute, published decisions, to the extent they even mention the issue, ignore the absence of the word "period", or the phrase "period of time" or similar words, which are necessary to clarify that the "910 day" phrase in meant to cover an event occurring anytime in the 910 day period. See, e.g., Capital One Auto Fin. v. Osborn (In re Osborn), 363 B.R. 72, 75 (B.A.P. 8th Cir. 2007) (adding a "sic" to the statute). Wright also recognizes the drafting error by the designation "sic." Wright, 492 F.3d at 831. Quick, together with other reported decisions, simply ignores the missing word or phrase. Quick, 371 B.R. at 461.
135. Wright, 492 F.3d at 830.
136. 11 U.S.C. § 1325(a).
137. Quick, 371 B.R. at 461-62 (footnotes omitted).
138. Wright, 492 F.3d at 830.
139. Quick, 371 B.R. at 463 (footnote omitted).
140. Wright, 492 F.3d at 831. See also 28 U.S.C. § 158(d)(2) (providing the procedures for, and the limitations upon, direct appeals from the bankruptcy courts to the appropriate Circuit Court of Appeals).
141. Wright, 492 F.3d at 831.
142. Quick, 371 B.R. at 463-64 (internal citation omitted).
143. Wright, 492 F.3d at 833.
144. See In re Penrod, 50 F.3d 459, 463 (7th Cir. 1995) (liens may be affected by the provisions of a confirmed chapter 11 plan); In re Pence, 905 F.2d 1107, 1110 (7th Cir. 1990) (secured creditor's lien may be modified by a confirmed chapter 13 plan).
145. Quick, 371 B.R. at 463 (footnote omitted).
146. Id.
147. Wright, 492 F.3d at 832.
148. United States v. BDO Seidman, LLP, 492 F.3d 806, 823 (7th Cir. 2007) (internal citations and quotation marks omitted).
149. Wright, 492 F.3d at 832.
150. See, e.g., In re Trejos, 352 B.R. 249, 253-54, n.7 (Bankr. D. Nev. 2006) (reviewing comments on BAPCPA's poor drafting and noting the difficulty in making "practical sense" of many of BAPCPA's provisions).
151. See Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253 (1992) ("When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete."; citations and internal quotation marks omitted).
152. 11 U.S.C. §§ 101, 102, and 103.
153. See, e.g., Rousey v. Jacoway, 544 U.S. 320, 326 (2005) (opinion cited RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (Second Ed. 1987) and WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1981) for the definition of "on account of"); Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 126 S.Ct. 2105, 2117 (2006) (dissenting opinion cited WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1981) for the definition of "contribution"); Cohen v. de la Cruz, 523 U.S. 213, 220 (1998) (cited BLACK'S LAW DICTIONARY (6th Ed. 1990) and AMERICAN HERITAGE DICTIONARY (3rd ed. 1992) for the definition of "debt for").
154. See Towne v. Eisner, 245 U.S. 418, 425 (1918) (Holmes, J.) ("A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.") (citation omitted).
155. See, e.g., In re Sorrell, 359 B.R. 167, 182-83 (Bankr. S.D. Ohio 2007) (comparing the use of the term "the Social Security Act" in various sections of Title 11 to help determine the meaning of "benefits received under the Social Security Act" in a new BAPCPA sub-section, 11 U.S.C. § 101(10A)(B).).
156. See Price v. Delaware State Police Fed. Union (In re Price), 370 F.3d 362, 369 (3rd Cir. 2004) ("Thus, ambiguity does not arise merely because a particular provision can, in isolation, be read in several ways or because a Code provision contains an obvious scrivener's error. Nor does it arise if the ostensible plain meaning renders another provision of the Code superfluous. Rather, a provision is ambiguous when, despite a studied examination of the statutory context, the natural reading of a provision remains elusive. In such situations of unclarity, '[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived,' including pre-Code practice, policy, and legislative history."; internal citations omitted).
157. See Lamie v. U.S. Trustee, 540 U.S. 526, 541 (2004) ("The Act may now contain surplusage, along with grammatical error; but that may have been the result of trying to make the substantive change with the fewest possible textual alterations or of an error by the scrivener in carrying out the change.").
158. Bank of Am. Nat. Trust and Sav. Ass'n v. 203 North LaSalle Street P'ship, 526 U.S. 434, 461 (1999) (Thomas, J., concurring).
159. See Union Bank v. Wolas, 502 U.S. 151, 158 (1991) ("The fact that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning.") (citation omitted).
160. See Exxon Mobil Corp. v. Allapattah Svcs, Inc., 545 U.S. 546, 568-69 (2005) ("We need not comment here on whether these problems are sufficiently prevalent to render legislative history inherently unreliable in all circumstances, a point on which Members of this Court have disagreed.").
161. See Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253 (1992) ("When the words of a statute are unambiguous . . . 'judicial inquiry is complete.'"; citation omitted).
162. See, e.g., Lamie, 540 U.S. at 539 ("Though we find it unnecessary to rely on the legislative history behind the 1994 enactment of § 330(a)(1), we find it instructive that the history creates more confusion than clarity about the congressional intent. History and policy considerations lend support both to petitioner's interpretation and to the holding we reach based on the plain language of the statute.").
163. See In re TCR of Denver. LLC, 338 B.R. 494, 500 (Bankr. D. Colo. 2006) (The use of "and" instead of "or" in 11 U.S.C. § 1112(b) was a "drafting error").
164. See id. at 499 (A plain meaning reading of 11 U.S.C. § 1112(b) is absurd because it would require a "perfect storm" of all the causal factors to exist in order for a chapter 11 case to be dismissed.).
165. Midlantic Nat. Bank v. New Jersey Dept. of Envtl. Prot., 474 U.S. 494, 501 (1986).
166. See In re Reyes, 361 B.R. 276, 279 (Bankr. S.D. Fla. 2007) ("[F]ollowing the doctrine of constitutional avoidance, this Court will address the other issues raised by the Motion to resolve the issues on other than constitutional grounds, if possible.").