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Misquoted by a Federal Bankruptcy Judge?

Much to my surprise and dismay, it appears that I have been badly misquoted by Federal Bankruptcy Judge (and former law professor) Bruce Markell regarding my testimony before the Senate Judiciary Committee regarding BAPCPA. Not only did Judge Markell grossly take my words out of context in a published judicial opinion but I understand that he did the same thing in a recent speech to the a local bankruptcy lawyers association (as reported to me by a person present at the talk). Now I have tracked down the full transcript of the Hearing, so I wanted to set the record straight here.

Here's what Judge Markell wrote in his opinion in In re Kane, 336 B.R. 477 (Bankr. D. Nev. 2006) (I couldn't find the opinion on-line other than in Westlaw) at page 481:

This court concurs with Judges Mark and Riegle--the cap applies to all debtors who do not satisfy the 1,215-day rule--but for different reasons than either of them advanced. Whether the text is ambiguous or not, it is still possible to consider and implement what Congress unambiguously intended and to overcome the drafters' unfortunate choice of words. [FN7]

FN7. Section 522(p) is one of many examples of poor drafting in the new bankruptcy law, which Professor Todd Zywicki assured the Senate Judiciary Committee was "fine as it is," adding, "There is no word that I would change in this particular piece of legislation." SEN. JUD. COMMITTEE, Hearing on S. 256: Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 109th Cong., unofficial transcript (March 10, 2005).

Judge Markell quotes me as suggesting that I somehow created a warranty with respect to the exact drafting of the statute (which was about 400 pages long as enacted). It is clear from reading the full transcript and the context in which this exchange took place that Judge Markell has crudely taken my comments out of context. In fact, my comments referred to a completely different question, namely whether the fact that the bankruptcy reform legislation had been pending for eight years at the time of the hearing meant that the draft was obsolete in light of changes in the economy and the bankruptcy system during that time. There was no discussion at all about particular drafting glitches or errors, either in Senator Feingold's questions or my responses.

Here's the relevant passages from the Hearing transcript.

SENATOR FEINGOLD: Professor Zywicki, as you know, I have mentioned that the Bankruptcy Act was fist introduced eight years ago, and you have long supported it. However, as Professor Warren has stated, the eight years since this bill was introduced have seen many developments with significant implications for bankruptcy law. Furthermore, we now have significatly more data about who files for bankruptcy and why they do than when the bill was first introduced.

Given all of the things that have changed since the original bill was drafted and given all the new information that has emerged sicne that time, is there anything about this bill that you think should be changed, or do you endorse S. 256 without any adjustments whatsoever?

There are two key contextual points here. First, the argument that "the world has changed in the past eight years" was the key procedural element of Professor Warren's testimony during this Hearing and a point made repeatedly by opponents of the bill during the Hearing and legislative process. Her testimony is available here. In particular, it was noted that during that period of time after the legislation was originally introduced (1997) had all of the big Chapter 11 "scandal" bankruptcies, such as WorldCom and Enron, which the bankruptcy reform legislation didn't address in a major way. Second, the reference to "significantly more data on who files bankruptcy" refers to the "Health Related Bankruptcies" paper that Professor Warren published right before these Hearings and which was the main substantive of the critics of the legislation during this particular Hearing. I discuss the study here and a new critique of the study is available here (subscription).

So the main attacks on the legislation during the last go-around were (1) during the intervening eight years new problems arose in the bankruptcy system that were not accounted for in the legislation, and (2) during that time new evidence of the supposed causes of bankruptcy filings had been discovered which should lead to a reconsideration of the basis for the legislation.

Here's my answer:

MR. ZYWICKI: Senator, first, let me clarify that I believe that the majority of bankruptcy filers are legitimate, honest bankruptcy filers, and I would not endorse this bill if I believed that in trying to eliminate fraud and abuse we would be harming people, the honest, innocent people for whom bankruptcy is intended.

Having said that, this bill has been around for eight years. The problems that this bill attacks have not disappeared during eight years; they have worsened during that eight-year period. There may be new abuses that have come on the scene, additional new problems that have come on the scene [TZ: Here I am referring to the possibility of further reforms in the future to deal with Chapter 11 scandals such as Enron]. But that is not, I don't believe, a reason to ignore the fact that this bill targets real problems. It targets the homestead exemption abuses, it targets fraud and those sorts of things. So this bill responds to problems that are still endemic in the system.

SENATOR FEINGOLD: What about my question? Are there any changes to the bill that need to be made at all or is it exactly the way it should be? We are making [TZ: I think this is a typo in the transcript, it should be "marking"] this thing up next week. This is it. The train is leaving the station, apparently, and there is not going to be another bankruptcy bill probably for a very long time. This is it. Should this bill be changed?

MR. ZYWICKI: I believe this bill is fine as it is.

SENATOR FEINGOLD: Not one word?

MR. ZYWICKI: There is no word that I would change in this particular piece of legislation.

SENATOR FEINGOLD: Well, Mr. Chairman, I know my time is up, but the idea that after eight years and all the economic changes in this country that there wouldn't--

CHAIRMAN SPECTER: If you need some more time, Senator Feingold, go ahead.

SENATOR FEINGOLD: Let me just say that after eight years, the notion thatt there wouldn't be anything different about the Bankruptcy Code--with all of ht eeconomic changes and dislocations, that there wouldn't be a word to change is not credible to me and is a further reason why I am very cincerned about the speed with which this bill is moving.

Thank you for the extra time, Mr. Chairman.

The reference to "economic changes and dislocations" is a third contextual point--earlier in the Hearings Senator Feingold had expressed dismay about the decline of the manufacturing sector in his home state of Wisconsin during the eight year period that the legislation was pending, which he argued meant that it was bad policy to tighten the bankruptcy laws.

Here's Senator Specter's closing remarks, picking up where Senator Feingold left off about whether the passage of time had made the bill obsolete:

CHAIRMAN SPECTER: Thank you, Seenator Feingold.

The timing on the bill has been set. We are moving ahead. This hearing was designed to give us opinions of experts in teh field on problems in teh bill. We will have many communzues from insterested citizens in all walks of life, and when the Judiciary Committee meets next Thursday to consider the bill, there will be time between that sesion and the full floor debate. So there is time for consideration of any changew taht ought to be made.

Looking at all of this in context, it is quite clear that both subjectively and objectively I was not in any way making any respresentations about the particular drafting of every single word in the bankruptcy reform legislation. This exchange is focused on one central point--should the legislation be reconsidered because of changes in the economy and bankruptcy system during the eight-year period between the time the legislation was first introduced and actually enacted. My argument is straightforward--no, even if new abuses have manifested themselves in large Chapter 11 cases, that does not change the essential need for this legislation as it applies to consumer bankruptcies because the problems and abuses were still present and weren't going to solve themselves.

There is simply no reasonable way to read this passage as suggesting that I was endorsing the drafting of every single word in the legislation (or any particular word for that matter in this particular exchange) and I know subjectively that I was not providing such a warranty. It seems equally clear that Senator Feingold was not asking that question, and moreover, no other Senators or other people testifying raised detailed and particular questions about drafting provisions of the legislation. That was not the purpose of the Hearing and it was not the purpose of my exchange with Senator Feingold.

Obviously a piece of legislation of this complexity is going to have unanticipated drafting problems as applied to particular factual circumstances. Heck, the 1978 Code was declared unconstitutional after it was enacted. I certainly had no anticipation that legislation would turn out to be perfect in every possible term. But that wasn't the question I was answering.

To suggest, as Judge Markell does, that I was vouching for the drafting of the exact language of the bankruptcy reform legislation seems grossly sloppy about reading the proper context here at best. At worst, this is a willful distortion of what I said. Perhaps Judge Markell was saimply misled by someone else who excerpted my quote out of context. I'm sorry that Judge Markell's misuse of my quote made it into a published opinion in the first place. At the very least, I hope he will refrain from using this noncontextual quote in the future.

Bobbie:
Perhaps I'm slow, but after having read the context you provide and the judge's footnote, I don't think he misrepresented you.

When you say you wouldn't change a word, I would assume you meant, you wouldn't change a word for any reason. So, for example, if you thought one section was poorly written, I would have assumed that you would have said so, qualifying your answer as, "I don't think changed conditions warrant altering a single word, although I have other reservations about some of the wording." But I think either interpretation of your words is reasonable.

Having heard your explanation, I do see what you intended to get at, but if you would have provided me your testimony earlier today and asked whether the judge misrepresented you, I likely would have said no.
3.29.2006 2:03pm
Juan Notwithstanding the Volokh:
You protest too much. While he mentions the age of the bill, Feingold was concerned it was moving too fast and didn't address all that it might. There won't be another bill in a long time, he says, shouldn't we take our time to pass this one? And you say it is fine as it is and that you would not change one word.

If you didn't read all the words and agree with them, you should have said so, but you didn't. You had one chance to tell congress your opinion and you used it to rubber stamp the whole thing.
3.29.2006 2:04pm
Sam (mail):
I agree with the other posters, that your words are most naturally read as the Judge read them. If you had meant to qualify what you were saying, you had the opportunity to use different words. So, if you want now to say, "I really didn't mean that the bill was ready to fly, or to take a position on that at all," that's fine -- but don't blame the Judge or others for interpreting your testimony in its most natural sense.
3.29.2006 2:14pm
Abe Delnore:
It's ironic how many typographical errors there are in the post, particularly the transcript excerpts.
3.29.2006 2:23pm
Christopher C (mail):
Sorry Professor, but I think the bankruptcy judge caught you engaging in hyperbole when you said "There is is no word that I would change in this particular piece of legislation." I think the Judge was pointing out that you, in apparent desire to see the legislation enacted quickly, simply overstated your case about the wisdom of enacting the bill immediately. The rush to enact left many poorly drafted, grammatically improper, sections intact and now the courts have to clean up the mess that Congress, with your urging, enacted.
3.29.2006 2:31pm
Some Guy (mail):
No one cares.
3.29.2006 2:34pm
Steve:
I am also on Judge Markell's side here.

It is clear that had you given what you now admit to be the more complete and honest answer - "There may be drafting issues or other problems with the language of the bill, but I don't believe one word has to be changed merely because of the passage of time" - the Senator would have responded with something like "Well, let's talk about the drafting errors," and would have used that as a pretext to attempt to delay passage of a bill that you clearly wanted passed. So instead, you gave an unqualified answer, and like it or not, it's the answer you gave.
3.29.2006 2:35pm
brett (mail):
Regardless of whether he quoted you accurately or not, why is he quoting you at all? What business does he have using a published judicial opinion to express his personal views about the bankruptcy legislation, and, worse, about a single person who testified in favor of the bill? Very odd, and I would hope that this gets some attention.
3.29.2006 2:38pm
Max:
Professor Zywicki hardly needs me to defend him but the commenters seem to be missing any contextual understanding of the legislative process. Clearly Zywicki was there to testify about the substance of the law, not drafting errors, typos, potential ambiguities, and the like. There is no conceivable way whatsoever that Judge Markell thinks that's what he was testifying about. Senator Feingold obviously asked him a question ("Not one word?") that didn't really make much sense in the context, as senators are wont to do, and Professor Zywicki gave a response that, while directly responsive, he probably now regrets not qualifying with the context that is numbingly obvious not only from the surrounding testimony but also from the reason he was invited to testify to begin with. But regardless, the judge can't possibly not understand the context. It's pretty shoddy and wildly gratuitous seeing as how it adds nothing to the opinion.
3.29.2006 2:43pm
Don Miller (mail):
Just a layman,

But reading through the transcript of the hearing, I would have believed your statement "There is is no word that I would change in this particular piece of legislation", meant exactly that.

After reading your explanation and rereading the transcript a couple times, I believe it is reasonable for an impartial party to come to the conclusion that you were happy with all parts of the bankruptcy bill and didn't think any part needed clarification.
3.29.2006 2:44pm
LG:
Sorry -- it's at least "reasonable" to read it the way the Judge read it, as you can see from several posts above mine. I empathize you didn't mean it that way, but c'est la vie. I think your visceral revulsion at how it came off in print is obscuring your judgment...
3.29.2006 2:44pm
FXKLM:
If the statute is 400 pages long, I don't think it's reasonable to believe that every single word was exactly as Zywicki would have wanted it. No one is ever completely happy with every single word of a statute unless he drafted it single-handedly (and probably not even then). That's just not how legislation works, especially not legislation on this scale.
3.29.2006 2:56pm
Arthur (mail):
The accuracy of the quotation depends on what the meaning of "is" is.
3.29.2006 2:56pm
42USC1983 (mail):
No one is ever completely happy with every single word of a statute unless he drafted it single-handedly (and probably not even then).

Fair enough. Of course, one should not say of legislation one is not completely satisfied with that: "There is no word that I would change in this particular piece of legislation." Got that? Good.
3.29.2006 3:15pm
FXKLM:
1983: Todd's interpretation of his statement (that he wouldn't change a word for the purpose of responding to recent events) is at least reasonable. My point is that the other interpretation (that he really wouldn't change a word for any reason) is not something that anyone would intend to say, so it's not reasonable for a person to interpret it that way.
3.29.2006 3:26pm
jgshapiro (mail):
Shouldn't you just write a letter to the judge pointing out what you believe to be his error, and asking him to revise the footnote accordingly? It's not as though this footnote is necessary to the rest of the opinion. Nor is the opinion a product of a panel decision -- he could change it himself if he wanted to. At least you might convince him not to repeat himself in future opinions. You are not a party to the case, so there's no issue of ex parte communications.

My understanding (which could be wrong) is that published opinions can be corrected to some extent, at least before they appear in the printed volumes. If you can't find the opinion anywhere except Westlaw, that suggests that you still have time to make your case where it matters.
3.29.2006 3:47pm
Bobbie:
Max, how is there space between the substance of a law and whether it is clearly written?
3.29.2006 3:57pm
Dilan Esper (mail) (www):
I've got to say, I think Todd Zywicki is probably being a bit disingenuous about his testimony. Remember, this was a bill that was tied for eight years because of amendments and changes and disagreements over language. Zywicki strongly believed in it, whatever one's opinion is about that belief. Feingold was discussing the possibility of yet more changes to meet concerns that he had. And Zywicki didn't want to see any more changes because it would delay the bill's passage.

My reading of this is that Zywicki's attitude was that he would rather see the bill pass than have it go back for more amendments. And if I am right, I see nothing wrong with the judge's citation of his testimony.
3.29.2006 4:39pm
logicnazi (mail) (www):
Well the problem here is that by very delibrate choice of words the Senator seems to be asking whether it is possible for this piece of legislation to be better in even the slightest detail. Asking about every single word as a clarification to a statement expressing that you didn't want to change it clearly indicates that the not one word bit was meant to be far over the top.

However, if one makes the assumption that the Senator was asking an intelligent question not trying to trip one up in a transparent rhetorical trick, the standard thing we do when interpreting unclear statements, we can't read her as asking the literal question. Of course it would be absurd that there isn't *one* word that could be slightly improved in clarity or improve ultimate results.

Trying to be charitable to the Senator, i.e., assume she isn't engaging in a stupid rhetorical tricks, the best interpratation is probably that she was asking you if you knew of any *particular* place that you would change. Not whether the bill was utterly perfect as written.

At the very least it would have been better for the judge to make the context clear, a context which would have revealed your intent was clearly not to claim total perfection even if that is the most obvious reading of the words. So I think it wasn't the best this judge could have done but it does seem within the range of reasonableness.
3.29.2006 4:56pm
logicnazi (mail) (www):
In other words I think the differing intuitions about what you said from the commenters is a difference in whether we are trying to determine what you actually said or what you really intended when you said that.

It is like when someone says that "Michael Jorden could jump 100 feet into the air." and their friend replies, "You mean he could literally jump 100 feet?" and the person replies, "Yes, he could literaly jump 100 feet."

A straightforward reading of the words, modulo sarcasm, would say that this person was literally claiming Jordan could jump 100 feet into the air. However, assuming we know they have some basic grasp of how big a foot was and the limits of physiology it would be absurd to suggest this represented their belief. They are just being hyperbolic.

Hence why I think it is a little (but not much) unfair for the judge to seem to suggest you really do think every word is correct.
3.29.2006 5:01pm
Dave Hardy (mail) (www):
At least they got your name right. One of my articles, cited in a Circuit decision, was attributed to David T. Garvey. I assume the opinion was "dicated but not read."
3.29.2006 5:06pm
Max:
Bobbie, in the opinion, Judge Markell himself holds that it is clear "what Congress unambiguously intended." In other words, the substance or what the bill was intended to do. That's what Zywicki was testifying about. He didn't draft the bill and he wasn't testifying about potential unintended ambiguities. As the professor points out briefly, this bankruptcy reform legislation was 400 pages long. What we are talking about here is a very small subdivision of a small section of the bill. Every statute has potential ambiguities, some intentional, some simply out of error. Courts deal with this all the time. This was - in Judge Markell's opinion - an unintentional ambiguity and it is silly to link that with the professor's testimony.
3.29.2006 5:10pm
Max:
And yes, to everyone who has pointed out that it is literally what Zywicki said, you are correct. If you weren't, we wouldn't be having this conversation because the judge wouldn't have been able to take it out of context. But Zywicki is pointed out that it's taken out of context and the predominate response is: well, OK, but if you do take it out of context, the judge was correct. Well, sure, the point is it's disingenuous to take it out of context.
3.29.2006 5:17pm
Max Gardner (mail):
I think that Professor Zywicki could make better use of his time working on an 800 page Technical Amendments Bill to the BAPCPA of 2005.

Max Gardner
3.29.2006 5:18pm
Robert Schwartz (mail):
Given that BAPCPA is turning out to be the disaster many (including me) had forecast, if I were Prof. Zywicki, I would pull my hat down, whistle "Sweet Georgia Brown", and stroll out of the room nonchalantly. There is no reason to go down with the ship.
3.29.2006 5:26pm
Mark Cornell (mail):
As the only academic in the area of bankruptcy law to support the BARF, you have perhaps set your self up as a target of those who are unhappy with the incredibly inept drafting provisions of this law. In all intellectual honesty, you could not have looked at the BARF and not seen the many inconsistently drafted provisions, the failure to define important terms (or even use the existing common terms of art), and the generally inept drafting.

When asked:

SENATOR FEINGOLD: What about my question? Are there any changes to the bill that need to be made at all or is it exactly the way it should be? We are making [TZ: I think this is a typo in the transcript, it should be "marking"] this thing up next week. This is it. The train is leaving the station, apparently, and there is not going to be another bankruptcy bill probably for a very long time. This is it. Should this bill be changed?

MR. ZYWICKI: I believe this bill is fine as it is.

SENATOR FEINGOLD: Not one word?

MR. ZYWICKI: There is is no word that I would change in this particular piece of legislation.

You should have made use of that opportunity to point out the completely inept drafting of the bill. As one judge stated at a CLE, if one of his associates had produced this work product, the associate would be out of a job.

Finally, your statement: "Obviously a piece of legislation of this complexity is going to have unanticipated drafting problems as applied to particular factual circumstances" grossly understates the poor drafting of this legislation.

Mark
3.29.2006 5:26pm
Claude Dancer (mail):
The thrust of Sen. Feinstein's question is clear: "Prof. Zywicki, would you change any substantive provision of this legislation?" Answer: "No, I would not change any substantive provision." That is the only reasonable way to interpret this exchange.

It seems to me that the commentators--as well as bankruptcy practitioners and judges at large--are upset at the policy choices that Congress made in BAPCPA. Having lost the legislative battle, one of their only hopes to keep the issue alive is to paint the statute as hopelessly flawed (which it is not). In a perfect world, we could spend as much time as we wanted on legislation to resolve every drafting issue. Unfortunately, that's not how the real world works. Spending any more time on BAPCPA to get it "perfect" might've spelled its doom politically.

The Bankruptcy Code has never been a model of draftsmanship, and what flaws and inconsistencies in it have been addressed and resolved by courts over time. The same will be true of BAPCPA--unless activist judges violate their judicial oaths by willfully misinterpreting it to undermine its purposes.
3.29.2006 6:16pm
Irensaga (mail):
Professor, I've read through your post, and it's hard to see that the bankruptcy judged misconstrued you here. Maybe there was a bit of context that was left out, but it is not "clear" that your comments were taken "crudely out of context."

Those who enter the public sphere have the duty to clearly communicate what they mean. You cannot simply expect all of us to do the mental gymnastics necessary to provide your statements with meaning that just simply is not immediately apparent.

This was a horrendous peice of legislation. It's premises are suspect, it motivations ugly, and it has more drafting screw-ups than anything I've read from Congress in a long time. Not to mention the Constitutional challenges that are mounting up ...

You were about the only Bankruptcy expert in the entire USA (not counting credit card lobbyists) who actually supported this legislation. Surely you knew your reputation was going to be linked with BAPCPA's fate?

If you're trying to distance yourself from the legislative trainwreck that is shaping up, that's understandable, but I don't think this post is going to do the trick.
3.29.2006 6:42pm
Tracy Coyle (mail) (www):
Todd,

He is not the only judge bad-mouthing the law. Hundreds of judges, trustees, bankruptcy attorneys and a large number of law school professors wrote extensively on what was wrong with that bill. Sen Feingold happens to be my Senator and I do not like him, but unlike the Republican Senator from Wisconsin who voted for the bill, he opposed both the intent and way the bill was rammed through. Your characterization only lent support for the effort and if you don't like the result, well, you are not one of the thousands of debtors that have to deal with it.

We were one of the voices in the wilderness shouting that the law was bad. From my blog and on my partners law office website , we tried to warn people.

Needed or not (and we didn't think it was needed to address the issues you so broadly claimed needed addressing), the law is a non-functioning nightmare.

Two issues most clearly stand out. Bankruptcies are down almost 80% nationwide - as intended by the bill - but foreclosures are up as much as 50% in some areas (68% in our district), so the reasons for people to file have not changed.

Second, the attorney fees, court filing fees (slated to go up AGAIN on April 9th), and the cost of credit counseling have made it very difficult for the people 'least likely to be affected by the law' to actually afford adequate representation.

Proclaim 'out of context' all you want, the judges and attorneys that have to deal with what you considered fine legislation for the next 20-30 years will remember your contribution for a long time. And if they immortalize you in their decisions, well, what more could an attorney want!?
3.29.2006 11:17pm
Public_Defender (mail):
Professor Zywicki, your post is thoroughly (and uncharacteristically) unprofessional.

You made an unqualified but unintentional endorsement of every word in that bill. When you said, "There is no word that I would change in this particular piece of legislation," people are entitled to take you at your word.

It is far from "quite clear" that you were only endorsing part of the bill. "There is no word that I would change" seems pretty clear to me, but not in the way you meant it, even when looking at the context.

It's also unfortunate that, so far, you have been unwilling to take responsibility for your error in making such a sweeping endorsement. Given your previous history of thoughtful posts, I think you will eventually figure that out.

You should write a clarified post that takes responsibility for your failure to say what you meant. And you should apologize to Judge Markell, both publicly and privately.
3.30.2006 7:52am
Public_Defender (mail):
On another note, this is a good example or bad lawyering. Consider it a teaching moment for you and your students.

Good lawyers know to be extremely cautious about making sweeping statements like:
There's no evidence that . . .
It's undisputed that . . .
I agree with every word . . .
Of course, some lawyers are so cautious that they never commit to anything, but that's another problem.

All of us in practice for more than a few years have had the experience of having incautious words come back to haunt us. Welcome to the club. All you need to do to move on is to apologize to the judge (and maybe your readers).
3.30.2006 8:15am
Warren Agin (mail) (www):
I'll weigh in on Judge Markell's side as well. I think the question asked was whether any changes needed to be made to the text of the bill. Wouldn't it have been helpful to point out to the Senator that even though you agreed with the substance of the bill, it needed a good going over with a red pen before enactment? I mean, really, we are not talking about a few typos here. This act is full of incomprehensible language, incorrect use of terminology, incorrect references to other code provisions, unworkable provisions and language that simply doesn't say what it is supposed to say.
3.30.2006 8:27am
Irensaga (mail):
I don't think an apology to Judge Markell is warranted.

I too thought it was a bit odd that the judge chose to take a backhand at Prof. Zywicki in a footnote. I think that it illustrates just how ticked-off bankruptcy judges everywhere are about this ridiculous law. But it still seems unprofessional for a judge to be getting his "revenge" in an official opinion.

But I don't think he "grossly mischaracterized" the statements in question.
3.30.2006 8:28am
Max:
Mr. Agin, who, I believe, is a bankruptcy trustee in Massachusetts, is correct. Even though many bankruptcy judges disagree with the policy choices Congress made when it passed BAPCPA, the real problem is that they, and pretty much every other professional who must deal with the law on a daily basis, are angry and frustrated by Congress' inability to draft a piece of legislation that even properly enacts those goals. For instance, Section 362(c)(3) was enacted to limit the duration of the automatic stay for debtors who had had another bankruptcy case dismissed within the previous year. The language of the statute that was intended to single these people out is as follows: "If a single or joint case is filed by or against debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refioled under a chapter other than chapter 7 after dismissal under section 707(b)-" and then the statute goes on to give the conditions whereunder the automatic stay will terminate after 30 days. Do you see the problem? The statute, read literally, only applies if "a single or joint case is filed by or against debtor who is an individual in a case under chapter 7, 11, or 13 . . . ". That means that a debtor must file a new bankruptcy case while he is also a debtor under another bankruptcy case in order for the statute to apply. This will almost never happen!! It is certainly not what Congress intended, as it is nonsensical. Yet this is what they wrote. And there are many more absurd drafting errors, many of which can be found over at bankruptcylitigationblog.com. So, professor Zywicki, perhaps you should read a statute before you so whole-heartedly endorse it, even if you were speaking generally.
3.30.2006 9:39am
Max:
BTW, I'm a different Max than the one from earlier in the comment thread.
3.30.2006 9:40am
Public_Defender (mail):
This is what Professor Zywicki should have posted:

In a recent opinion, Judge Markell misinterpreted what I said in my congressional testimony regarding BAPCPA. After reviewing what I said, I see where the judge made his mistake. I appear to have endorsed every word of the bill, but I only meant to say that I didn't think the bill needed to be changed because of changes in the economy since the bill was initially drafted.

I should have spoken more clearly, but I think a fair reading of the full context of my statement makes the meaning more clear (or at least less unclear).

Now that I have clarified my remarks, I would hope that no judge would issue another opinion quoting me in the same way.
3.30.2006 10:23am
Sam (mail):
Public Defender, I agree -- then the remaining lesson to be learned would be, "Law professors, and other lawyers too, ought to aspire to this goal: don't testify in support of a bill that you haven't read carefully, or as to which you know that there drafting problems that you fail to point out in your testimony -- or, at the very least, if you are determined to lend your intellectual capital to support a bill you haven't read carefully, at least make that fact clear in your testimony."
3.30.2006 10:46am
William Bonney (mail):
As most of the responses indicate Prof. Zywicki was (in my opinion) as disingenuous in his attack on the Judge as he was in his Senate Testimony. As a bankruptcy trustee of 18 years who generally supports reform of the issues the bill was MEANT to resolve, the Prof. was there as an expert on the bill. He was one of very few people that even had an opportunity to read the bill. It did not take me 15 minutes of reading the law to find a dozen places where poor drafting would lead to a variety of opinions and results. If any attorneys were involved in the drafting they should be sued for malpractice.
3.30.2006 2:31pm
bostonbankruptcy (mail):
I believe, as well, that Prof. Zywicki was disingenuous. While the judge may not have gotten the quotation exactly right, nonetheless the plain meaning of what the Prof. said was correctly stated. Being curious by nature, I did a Westlaw search for "zywicki" in the bankruptcy caselaw database. Ten decisions came up (only ten?!), all of them quoting Prof. Zywicki. NONE of them had Prof. Zywicki as counsel for any party to the case. Methinks Prof. Zywicki - and possibly those senators and representatives who voted for BARF - should start representing parties (preferably individual consumer debtors) and finding out what real life is like in the practice of law. That would really open their eyes to the disaster that BARF is. David Baker
3.30.2006 5:22pm
buce (mail):
What Todd meant to say:

Senator I like the bill the way it is and I think you should vote for it. But you and I have been dealing with legislation for years now. We both know that Congress never passes a perfect bill because it can't be done. There will be problems of interpretation with this bill. There will be seeming inconsistencies. There will be--I hate to say it, but it's true--there will be things which, in retrospect look an awful lot like typoes.

But that is life with legislation and taking all that into accocunt, on this one I think the drafters did a good job. I hope you pass it warts and all, because it isn't going to get any better.
3.30.2006 5:27pm
Wendell (mail):
Shouldn't one assume the professor was appearing before Congress as an expert on the subject of bankruptcy and to assist Congress in assuring itself that the legislation would not (a) be a public policy mistake and (b) that it was written properly?

Yet the testimony is that of an advocate with a case to plead. Advocacy is fine but there were a lot of advocates out there already. Regardless of your position on this bill, it would probably be a greater public service for someone in the professor's position -- clearly he has substantial credibility with the bill's supporters -- to have worked to change the horribly written portions of this legislation before it came to a final vote. At the very least to avoid having the national legislature made the brunt of jokes because it, for example, cross-references non-existent provisions.

Of course, I don't know what to say if the professor was called in to apply his expertise to proofing the bill and the final product in fact reflects his best efforts. Having committing drafting errors myself, I would cast no stones -- only suggest denying such mistakes is not conducive to learning and growth, either.
3.30.2006 5:57pm
Fitzwilliam Darcy:
Yes, Todd, it's perfectly credible to suppose that you didn't really intend to warrant the accuracy of the drafting of the bill. That's not what you said, though, and you should be ashamed of yourself for accusing Bruce Markell of misrepresenting you. If you venture into the political arena you had better grow up and take responsibility for your words. Explain your intent, acknowledge and apologize for your hyperbole, and don't blame your political opponents for taking rhetorical advantage your own blunder. That's merely contemptible.
3.31.2006 12:37am
Public_Defender (mail):
I don't think it's fair to call the professor's post "disingenuous." I think he honestly believes he was intentionally misquoted.

For the reasons I've explained in several posts, I think the professor's post is unprofessional and just plain wrong. But he has not been dishonest.

The professor also deserves credit for letting his critics post very harsh criticisms.
3.31.2006 7:35am
kathycruz (mail) (www):
Most veterans would like some words changed. How in the world can any red blooded American defend legislation like this that clearly says that previously exempted veterans disability benefits are now not exempt. Thus some poor veteran who lost his legs in Iraq drawing 100% VA disability with special handicap awards will probably not pass the MFI in many states, and thus be stuck with a 60 month commitment period, while Donald Trump's social security will be exempt. It is hard to stomach that this is now the American way, to right the wrongs of the world on the backs of American veterans. Surely this well educated educator could have found the voice to support American veterans, with even some token support for some changes. They all keep giving "lip service" to our veterans and saying thanks from a grateful nation. Just how grateful is a government that does this to its veterans???
3.31.2006 9:37am
42USC1983 (mail):
The professor also deserves credit for letting his critics post very harsh criticisms.

I second that; we should give credit where it's due. Zywicki has not (so far as I can tell) deleted any comments. I have to say that allowing such harsh and pointed criticism is admirable.
3.31.2006 2:45pm
Max (mail):
I'll make one final point in defense of Professor Zywicki (I'm the Max from above who agreed with him about being misquoted).
There seem to be two primary disagreements with him:
(1) That BAPCPA is a bad law, it hurts low-income filers, etc. This may very well be correct and although my knowledge of bankruptcy law is limited to one class in law school, from what I know I mostly agree with the criticisms of BAPCPA. But this is in no way a reasonable response to Professor Zywicki's argument that he was misquoted unless you subscribe to the view that anything goes in an argument against political adversaries.
(2) The second one is closer to being a legitimate disagreement: that what Professor Zywicki literally said was that he wouldn't change a word of the bill, so Judge Markell wasn't misquoting him. I assume that every person who has said this also thinks that President Bush was correct to lambast John Kerry for saying that he voted for the Iraq appropriation bill before he voted against it. Because, after all, that's literally what Kerry said (and that's why it made for such an effective campaign commercial). It's my belief that, that while I'm no fan of Senator Kerry, this quote was stripped wildly out of context to the point where it was a gross distortion of what he said. Now maybe all of you folks would say the same thing about Kerry that you say about Zywicki: he should be more careful about what he says and no one has an obligation to keep quotes in context.
I'll finish with what I pointed out before: Judge Markell (and Senator Feingold) both knew what Professor Zywicki was testifying about - the substance of the bill, not the drafting. Senator Feingold asked a question that didn't make much sense given the context and Professor Zywicki answered it assuming the context was still the substance, not the drafting. Because Judge Markell must have known this, I agree that it was tantamount to a misquote. It, to me, is not a defense of Judge Markell that he disagrees politically with the professor.
4.1.2006 12:21pm
Public_Defender (mail):
. . . Judge Markell (and Senator Feingold) both knew what Professor Zywicki was testifying about - the substance of the bill, not the drafting. . . .
That's the problem, the drafting IS the substance. A law is nothing more than a collection of words. If the words on paper don't make sense, the substance doesn't make sense.

I can now see from the context what the professor had meant to say, but I don't think the judge's comments were an unfair interpretation.

The problem is that Sen. Feingold went from asking for a general endorsement of the bill to a specific endorsement of each word:

SENATOR FEINGOLD: What about my question? Are there any changes to the bill that need to be made at all or is it exactly the way it should be? We are ma[r]king this thing up next week. This is it. The train is leaving the station, apparently, and there is not going to be another bankruptcy bill probably for a very long time. This is it. Should this bill be changed?

MR. ZYWICKI: I believe this bill is fine as it is.

SENATOR FEINGOLD: Not one word?

MR. ZYWICKI: There is no word that I would change in this particular piece of legislation.

If the exchange had ended with "this bill is fine as it is," the professor's criticisms might be fair. But there is a world of difference between "this bill is fine" and "[t]here is no word I would change. . . ."

My guess is the next time the professor testifies in Congress, he'll be more careful with his words. That's a lesson all of us practicing attorneys eventually learn the hard way. When a sentence from my brief made it into a state supreme court opinion, some lower courts and prosecutors started using it for something different than what I had meant. It was quite an experience to hear a prosecutor unknowingly quote my own words against me in an oral argument. Things like that happen in practice.

Welcome to the club, Professor Zywicki.
4.1.2006 2:33pm
Max (mail):
No, I pointed this out before but in the very opinion we are talking about, regarding the very section Judge Markell was discussing when he mentioned Professor Zywicki, Judge Markell himself holds that it is clear "what Congress unambiguously intended." In other words, no, the substance isn't the drafting. Sure, one could imagine a situation where the drafting was such nonsense that it was inextricably connected to the drafting, but Judge Markell says this isn't that situation.
Finally, the last point in your post is exactly what I said in (2) above - too bad, who cares what the context was, be more careful with your words next time. That's a legitimate argument but I find it unpersuasive as a defense of Judge Markell.
4.3.2006 3:46pm