The Law of Unintended Consequences: Why BAPCPA Means You Need a Lawyer
By Bankruptcy Attorney on Feb 1, 2007 in General Bankruptcy Information
One of the most-often leveled criticisms against the new bankruptcy laws (enacted in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 - or BAPCPA) is that the Act was simply poorly written. Never mind the policy questions; the wording, the structure, the construction, and the organization all are of questionable quality. It’s simply a badly written law.
For many lay people, it might be surprising to learn just how hard it is to write a good statute. You have to meet certain Constitutional standards, of course. You also have to adequately and accurately communicate the prohibited behavior or mandated actions you’re aiming at, without being so broad that you capture other acts or behaviors not at issue. The language has to be precisely measured to be not only communicative but also capable of being understood by the people who will be subject to it (something that is often simply dispensed with, it seems).
In the case of BAPCPA, we have ready proof of the unwieldiness of the statutory language enacted by Congress: the judicial opinions that have been issued in response to that law. Seeing experienced bankruptcy judges wrestle with such basic concepts as “what does this word actually mean in this context?” and “how are we supposed to reconcile these two conflicting provisions?” is a pretty eye-opening experience.
If judges are having this kind of trouble, imagine what a person representing him- or herself is going to go through when he or she files the petition and schedules!
If you’re interested in learning just how frustrated some judges are in the wake of this law, you might want to take a look at an article written by attorney George Singer. It’s a 108-page compendium of the Bankruptcy Court opinions interpreting the new law since its enactment and effective date. The Year in Review: Case Developments under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 82 N.D. L. Rev. 297 (2006).
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