« Floyd Norris Asks a Good Question | Main | Column on Bankruptcy Reform in Houston Chronicle »

On Absurdity

posted by Bob Lawless

A few days ago, I discussed the sloppy drafting in the 2005 bankruptcy amendments, focusing on one particular piece of drafting that could be construed to eliminate involuntary bankruptcy petitions. Tom Perkins made a good point in the comments. A venerated legal maxim holds that courts are to apply the plain meaning of a statute unless the results would be absurd, but "[c]ourts are now faced with having to define absurdity much more frequently in light of many of the curiously drafted or pasted together provisions of BAPCPA."

In January, Judge Bruce Markell published a thoughtful opinion exploring what it means for a result to be absurd such that a court should not follow the literal words of the statute. Judge Markell was dealing with a part of the 2005 amendments related to homestead exemptions. He uses Justice Scalia's legisprudential writings as a point of departure: "Justice Antonin Scalia is one of the strictest, if not the strictest, textualists active today. . . .  If the methods used by Justice Scalia would lead to the reformation of the statute, then the statute probably should be reformed, and little time need be spent in discerning the proper or ultimate test for all federal statutes." This opinion has been called the WWSD or "What Would Scalia Do" approach. The legal citation is In re Kane, 336 B.R. 477 (Bankr. D. Nev. 2006) and is well worth a read by anyone grappling with applying the 2005 bankruptcy amendments.



Regarding the increased frequency with which courts may now have to confront the "absurd result" argument in interpreting BAPCPA, my blog entry over at Concurring Opinions, "Now Playing in a Bankruptcy Court Near You," observes:

A search of Westlaw’s FBKR-CS database, which consists of reported and unreported bankruptcy decisions and orders that are issued by all levels of federal courts, reveals that, to date, there are 538 documents that mention “BAPCPA” or “Bankruptcy Abuse Prevention and Consumer Protection Act.” Notwithstanding that this is a new law that has presented issues of first impression for courts, this strikes me as an excessive amount of opinion-writing, more than one would normally expect to see with a legislative enactment that has been in effect for less than a year. Worse yet, of those 538 documents, 40 mention the phrase “absurd result.” Even if only some of those opinions involve a BAPCPA issue where a plain language interpretation could lead to an absurd result—conceivably, a court might mention the phrase as it rejects a weak absurd-result argument—it can’t be a good sign that approximately 7.4% of the issued opinions within the year of BAPCPA’s enactment make an “absurd result” reference.



Policy debate aside, if you can't discern a reasonable meaning from a statute, I think it should be struck down as vague. Make Congress do at least a competent job at drafting. It should not be the judiciary's job to divine meaning from a mass of words thrown together into some kind of legal soup. That is not the way language works. Each word has a relationship with every other in a sentence. And sentences relate to other in the same paragraph, etc. You don't stir them together and "smell" it to reach a conclusion.

Although I can sympathize with the bankruptcy judges in the daunting task set them by Congress, I really wish there was a legal principle by which a Court could say "No! I can't even make a reasonable attempt at construing this, so I'm not going to try. Congress, start over!"

As much as everyone complains about "judicial activism" (although most people use the term improperly) some of it is foisted upon the Courts by a lazy and incompetent legislature.

The comments to this entry are closed.


Current Guests

Follow Us On Twitter

Like Us on Facebook

  • Like Us on Facebook

    By "Liking" us on Facebook, you will receive excerpts of our posts in your Facebook news feed. (If you change your mind, you can undo it later.) Note that this is different than "Liking" our Facebook page, although a "Like" in either place will get you Credit Slips post on your Facebook news feed.

News Feed



  • As a public service, the University of Illinois College of Law operates Bankr-L, an e-mail list on which bankruptcy professionals can exchange information. Bankr-L is administered by one of the Credit Slips bloggers, Professor Robert M. Lawless of the University of Illinois. Although Bankr-L is a free service, membership is limited only to persons with a professional connection to the bankruptcy field (e.g., lawyer, accountant, academic, judge). To request a subscription on Bankr-L, click here to visit the page for the list and then click on the link for "Subscribe." After completing the information there, please also send an e-mail to Professor Lawless (rlawless@illinois.edu) with a short description of your professional connection to bankruptcy. A link to a URL with a professional bio or other identifying information would be great.