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Professor Zywicki's Testimony

posted by Bob Lawless

In a Credit Slips post here, Professor Elizabeth Warren discussed Professor Todd Zywicki's testimony at a recent congressional hearing. In the comments to that post, Professor Zywicki protested that Professor Warren had misinterpreted his comments. After the transcript became available, Professor Zywicki wrote to me to say that he did not state that bankruptcy judges actively lobbied against BAPCPA. Because the transcript is available, I thought the best thing to do would simply be to post the relevant testimony so readers can make up their own minds. The testimony appears "below the fold"--

Chairman CONYERS. Does your memory go back far enough to recall how long the credit card companies had campaigned for bankruptcy reform? I have been here several decades, so I remember. Do you?

Mr. ZYWICKI. I don't. I didn't really pay that much attention to the lobbyists. I mean, I haven't received--my research is not sponsored by any consumer creditors.

Chairman CONYERS. I see.

Mr. ZYWICKI. I haven't received a dime from any bankruptcy groups like bankruptcy judges or any of those sorts of people who think that--who want more bankruptcies. I am just, you know, an independent professor who thought that the bankruptcy system could use some reform. And so, I didn't really pay attention to--

Chairman CONYERS. But it didn't come to your attention as a professor or as a citizen?

Mr. ZYWICKI. Sure, absolutely. Yes, Congressman. I mean, when I said there were--

Chairman CONYERS. I mean, you know that I know about how we got to the law.

Mr. ZYWICKI. Absolutely. What I saw was there was a lot of--there were consumer creditors who wanted reform. There were a lot of bankruptcy lawyers and members of the bankruptcy industry who spent a lot of money and flying around here all the time trying to lobby against them.

Chairman CONYERS. Year after year.


Chairman CONYERS. Exactly. Okay. Now your memory is coming back.

Mr. ZYWICKI. Right. So special interests lobbying on both sides. And, you know, I don't know--the final result, according to at least the empirical studies I have seen suggested that congressmen and senators voted for or against bankruptcy reform based on whether or not they thought it was good or bad policy, not based on special interest influence.
    And that was my impression, that those who voted against it did so sincerely. Those who supported in this House did so sincerely. And I see no reason to doubt that.


Just browsing the internet, your blog is very, very interesting.

Sheesh. He may not have said it directly, but I'd say he "said" it. I count myself among "bankruptcy judges" or those "sorts of people." Does our ilk "want more bankruptcies"? Or, rather, a sensible, effective, fair, comprehensible statute for those who need bankruptcy relief? The latter, without question.

Well, I take the transcript to confirm that Prof. Zywicki did not tell the Committee before whom he testified that bankruptcy judges lobbied against the previous incarnations of BAPCPA. He owes no apologies on that count.

Certainly, he did intend to leave an impression, by innuendo, when he said that he (innuendo: "unlike some others here") hasn't "received a dime from any bankruptcy groups like bankruptcy judges or any of those sorts of people who think that--who want more bankruptcies." That, in turn, carries the innuendo that bankruptcy judges have funded research because they "want more bankruptcies." Personally, I think that people of integrity should take responsibility not only for what they say but also for what they convey by innuendo. But that's just me.

Well it seems rather clear that if he didn't "say" it explicitly, he does think that Bankruptcy judges were a part of that amorphous "they" who apparently like bankruptcies and oppose efforts to reduce them.

The interesting thing I've encountered though is that even CREDITOR attorneys think this new legislation was a load of rubbish. I've heard these sentiments straight from creditor attorneys from one of the biggest creditor law firms in Denver.

Almost no one who actually has to deal with this new law likes BAPCPA.

The exception is the US Trustee's office. But then, they're paid to like BAPCPA...

There is some serious straw-grasping going on here. There is no innuendo or implication in my remark. I said exactly what I intended to say. I know how to say "bankruptcy judges" when I mean it and when I don't say it when I don't mean it. Is this really that difficult to understand?

I said "bankruptcy judges" in exactly the context that I previously recalled saying "bankruptcy judges," which is is commenting that I have received no money from the NCBJ. In this part of the exchange, I understood Congressman Conyers to be suggesting that I was a spokesman or representative of the consumer credit industry. I am not. And I was simply trying to clarify that I have no ties to any group that lobbied on either side of BAPCPA, and was appearing solely in my private, independent capacity as a professor. The issue here was not lobbying, but to clarify that I was appearing privately.

The second context refers to special interest lobbying. I was stating which groups I observed actually lobbying on BAPCPA. As I noted, I saw consumer creditors lobbying on one side and bankruptcy lawyers and other professionals with a direct financial interest in the bankruptcy system on the other.

I do not believe and did not state that bankruptcy judges actively lobbied against BAPCPA. Period. If I believed that bankruptcy judges had lobboed against BAPCPA I would have just stated it--obviously I know how to say the words "bankruptcy judges" when I intend to say that.

In fact, the alternative doesn't even make any sense. If I thought that bankruptcy judges had lobbied against BAPCPA, why wouldn't I have just seaid that? I would've thought by now that it would be obvious that I'm not afraid to criticize or comment on bankruptcy judges when I think it is accurate, even if they or others disagree with me. So if I believed that bankrutpcy judges had lobbied against BAPCPA, wouldn't I just say that?

I can understand why some people, such as those who may have received research support from the NCBJ, might be touchy about being understood as criticizing bankruptcy judges. But as I just stated, the NCBJ hasn't ever sponsored my research, and I have no plans for them to sponsor my research in the future, so I have no reason to pull my punches.

So can you all please stop putting words in my mouth? This really isn't a hard one--I said what I meant and if I had intended something else I would have said something else. What was I supposed to do--in the second context, was I supposed to enumerate every persons who I was NOT including in that list? I would've thought by now it would be pretty clear that I don't shy away from making controversial statements, but I don't appreciate others trying to tell me what I supposedly did or did not say.

This exchange was chaotic and as you can see, Congressman Conyers kept interrupting and interjecting while I was trying to answer his questions. It is completely understandable that Professor Warren simply misheard or misunderstood the details of my testimony during the hearing. That's fine. And so I contacted Professor Warren and Professor Lawless privately to give them an opportunity to correct the record voluntarily. I would've thought that sending a transcript with the actual words of the hearing--which match up exactly with my prior remembrance--would have demonstrated what I actually said and didn't say at the hearing.

And as I said in my first comment here, if I had inadvertently misstated my position on that point, I would have been happy to clarify it. It just turns out that in fact I did not misstate my position, others simply misheard it (and now have misread it to boot).

I really don't understand why some folks around here aren't willing to simply admit that they made a small mistake and move on. Instead, now instead of just dealing with misremembered exchanges in a congressional hearing I apparently am expected to answer for comments I never made because some people are unwilling to read the actual words that I said and instead have decided that I "implied" something different and so they want to attribute positions to me that I don't even hold.


Prof. Zywicki, this is what you said:

"I haven't received a dime from any bankruptcy groups like bankruptcy judges or any of those sorts of people who think that--who want more bankruptcies."

I think your statement speaks for itself. As for your comment that "[t]here is no innuendo or implication in my remark. I said exactly what I intended to say," again, I think your words speak for themselves.

I'm glad that Todd is weighing in on his remarks, because these transcripts -- especially when there are a lot of interruptions -- get confusing.

What I don't understand, Todd, if you're still checking in on these comments, is whether you intended to say bankruptcy judges are "those sorts of people" who want more bankruptcy. If I read the dry transcript alone, I would assume that "or any of those sorts of people" is an elaboration of bankruptcy judges as a previously referenced illustration (i.e., "bankruptcy judges or any of those sorts of people [like bankruptcy judges] who want more bankruptcies"). But it's possible in the room your inflection and affect and cadence meant to suggest those were two utterly unrelated constituencies: (1) bankruptcy judges; and (2) any of those sorts of people who want more bankruptcies.

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