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“The New Textualism and the Rule of Law Subtext in the Supreme Court’s Bankruptcy Jurisprudence”, 45 New York Law School Law Review 149 (2001)


The merits of the new textualism have been the subject of an enormous literature, a large majority of which rejects the method. This essay focuses on the Court's bankruptcy jurisprudence to make three claims. First, the case for the new textualism is a little stronger than is commonly thought, but ultimately fails to persuade, partly for reasons that are in the literature and partly for new reasons set out here.

Regarding the second claim, the new textualism has two plausible justifications: to advance the rule of law virtues of predictability and certainty; and to create incentives for the legislature to draft more carefully and to deliberate more fully about its goals. A tension can exist between the first justification and the method itself. To see how, let a statute recite: "Unfair contracts are not enforceable." A faithful interpretation of this text would confer discretion on the trial courts to police the process of contract formation and the substance of agreements. The exercise of a judicial discretion this broad, however, may conflict with the rule of law virtues. This essay's second claim holds that, at least in the bankruptcy field, the Court prefers the initial justification of the new textualism to the method itself. As a consequence, the Court will struggle, sometimes against text, to withdraw as much discretion as is possible from the bankruptcy and district courts. Put another way, the Court's goal is to find interpretations of the Bankruptcy Code that restrict the lower courts to the making of the most ministerial judgments that text and circumstances permit.

This goal is advanced, for example, by interpretations that confine factual inquiries to questions of historical fact rather than to "mixed" questions of law and fact. Thus, the Court has held that bankruptcy judges should not inquire whether foreclosure proceedings actually obtained fair market value, but rather whether mortgagees complied with the statutory requirements these proceedings must satisfy, such as giving all parties notice of sale. And the value of a secured claim, in the Chapter 13 context, is not to be found by valuing the liened collateral itself, but rather by asking how much remains unpaid under the mortgage. Valuation inquiries often are uncertain when done straight, and courts conducting them are widely believed to adopt valuation criteria that follow, at least partly, from the courts' policy preferences. The second claim here is that Supreme Court interpretations of the Bankruptcy Code strive more to avoid such inquiries than to be faithful to the statutory text.

This essay's third claim is that pursuit of the rule of law virtues through the vehicle of statutory interpretation will generally be pointless. A statute that confers substantial discretion on those who administer it permits these actors largely to avoid the effect of episodic discretion reducing readings by appellate courts. A statute that confers little discretion will itself confine its administrators if construed in traditional ways.

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