You Know, I Think Having Had Barry Eichengreen and Jeffrey Sachs (and Others) as My Teachers Gives Me an Unfair Advantage
Mitch Daniels, Deficit Arsonist: "The Building Was on Fire Anyway!"

Buce Watches Justice Kagan

I don't think he likes what he sees very much. This one goes to 11 on the snark meter:

Underbelly: Justice Kagan's Torture Memo: "It Can't Possibly Mean That": [T]he issue is a precise point of statutory interpretation (so precise you could be excused for wondering why the Court messes with it at all)... does the debtor get to deduct expenses for a car payment when he owns no car? On a hasty reading, the uninitiated reader might conclude that "yes, he does get the deduction." He might also conclude that the result is a bit silly but clarity and coherence have apparently never been part of Congress' brief.

Justice Kagan was not so easily fooled. She reads the statute a second time and finds that "the key 'applicable'," and that the deduction just wasn't applicable.... From a more spacious vantage, however, the case really needs to be filed not under "bankruptcy" per se but under "statutory interpretation." And here, you might be tempted to wonder whether what they learn at the Harvard Law School is the art of torturing the statute until you extract a confession.

There's a back-story here that you'd never suss out of the opinion itself. Specifically, the language in question comes from the famous-all-over-town bankruptcy amendments of 2005, which made it much tougher for ordinary folks to get bankruptcy relief. Whether that's A Good Thing or not is the kind of issue on which, inevitably, tastes differ. But another issue, apart from substance, is quality of the statute as a piece of draftsmanship. Here there is much wider agreement: it's a mare's nest, a dog's breakfast, a can of worms, just about anything but the cat's meow.... No surprise, then, that an kind of cottage industry has developed in the lower courts since 2005 which you might call Saving Congress from Itself--more precisely, trying to read some sense into a statute which often doesn't make any sense. But this endeavor has not been purely technical. Rather, there seems to have developed a sense among the lower courts that what Congress intended to do was jam it to the debtor good and hard, and that if Congress didn't get it right the first time, then we must help them. Bankruptcy lawyers have fashioned a new canon of statutory interpretation: if the statute seems to favor the creditor, apply the statute; if it seems to favor the debtor, assume it's a mistake and favor the creditor anyway.

I wouldn't put Kagan in quite that camp. Her reading seems more rooted in the "Congress couldn't have said anything that stupid" school. And she obviously has a lot of company: the whole crew is on board. The whole crew, that is, with one exception: Antonin Scalia who ways in with a typical blunt assertion of a kind of plain-meaning rule (whatever Scalia may be willing to torture, you'd have to say that statutes are not on the list).... So we are left with the ironical conclusion that Justice Kagan, late darling of the left, begins her Supreme Court career by putting money in the pocket of the credit card companies. while the last man standing at the pass in defense of the beleagured debtor is Antonin Scalia...

Me? I'm tickle to see eight justices signing up for the principle of statutory implementation noted by Robert Unger in his article on the "Critical Legal Studies Movement": that if a statue is enacted as part of the political victory of the cowmen over the farmers, you interpret the statute to the benefit of the cowmen and to the detriment of the farmers. (OK, OK. Unger is not making an "Oklahoma" reference--it's not "farmers" but rather "sheep-herders.")