§ 3.12 — Conclusion: The Job Ahead
Revised: February 25, 2017
For 25 years before the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA),1 bankruptcy lawyers, judges and scholars worked with a bankruptcy law that was substantially consistent in its implementation of familiar principles and often elegant in its technical construction. BAPCPA was fundamentally different in both respects: the drum beats of its proponents were not carried into the score, and the nomenclature of this law is obscure at best, incomprehensible often.
What can bankruptcy professionals do to make sense of BAPCPA? Here are some suggestions.
|1.||Don’t let anyone tell you what BAPCPA says; read it for yourself. In and out of court you have undoubtedly heard a lot about what BAPCPA says. Don’t believe it. There is no substitute for reading it yourself and drawing your own conclusions. What “they” may have meant to say and what they actually said are different things in many places that matter. We no longer have the luxury to rely on thousands of reported cases and secondary authorities that pre-digest the Code. We have to start over at that diabolical place law professors tell us to go when all else fails: read the statute.|
|2.||Every word counts. This is what Hank Hildebrand, the Chapter 13 trustee in Nashville, Tennessee, calls “the Easter Egg Phenomenon.” Each time you read a section of BAPCPA, the words are going to tell you something new or different. Every word has to mean something, and there are so many new terms of art and new concepts in BAPCPA that no one can take big bites. Instead, take it one word at a time and let every word mean what it says. The Easter eggs will roll out just by paying careful attention to the words.|
|3.||“Plain meaning” is the starting point. Resist the temptation to jump from reading the words to divining intent. Sure there is legislative history—some would say there are eight years of it, beginning with the Responsible Borrower Protection Bankruptcy Act of 1997.2 But much was lost, much changed and much was added in the translation of rhetoric into BAPCPA. It will often be in the best interests of one player or another to skip the devil and start with what “they” intended. The Supremes have repeatedly admonished the bankruptcy community to start with the words of the statute.3|
1 Pub. L. No. 109-8, 119 Stat. 23 (2005).
2 H.R. 2500, 105th Cong., 1st Sess. (1997). See § 2.2 Brief History, Including “Legislative History,” of BAPCPA.
3 Patterson v. Shumate, 504 U.S. 753, 760, 112 S. Ct. 2242, 2248, 119 L. Ed. 2d 519 (June 15, 1992) (“exceptionally heavy burden” to defeat plain meaning of Bankruptcy Code); Union Bank v. Wolas, 502 U.S. 151, 158, 112 S. Ct. 527, 531, 116 L. Ed. 2d 514 (Dec. 11, 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.”).