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- Title
The Least "Constructive" Provisions?: Analyzing the Bankruptcy Code's Codified Canons.
- Authors
HAWKINS, ASHER
- Abstract
The seventh of the U.S. Bankruptcy Code's nine "rules of construction" seems straightforward enough: "the singular includes the plural." But bankruptcy judges across the country have, in a surprisingly varied range of contexts, struggled with whether strict obedience to the language of § 102(7) reflects the congressional intent underlying the particular provision being interpreted. Previously, judicial confusion as to proper application of § 102(5) ("'or' is not exclusive") had to be resolved by the U.S. Supreme Court. The situation calls for some manner of revision to the Code's statutory-analysis "rules." This note first provides a history of the so-called "canons" of construction before turning to the commonly used numberneutrality canons and explaining how an incomplete reformulation of it was codified within the Code of 1978. Next, this note highlights instances in which strict, as opposed to relaxed, adherence to § 102(5) and § 102(7) has led to conflicting results in disputes stemming from certain Code provisions, including § 522(d)(11)(D) (exemption for "a payment . . . on account of personal bodily injury") and § 548(a)(2)(A) (fraudulent-transfer exception for "a charitable contribution to a qualified . . . entity"). Third, this note explores the practical implications of the conflicting approaches to § 102(7). Finally, this note proposes solutions for resolving the statutoryanalysis problems resulting from § 102, an undertaking that would in turn promote increased clarity in a statutory framework that is regarded by some as plagued by imprecise language.
- Subjects
UNITED States; BANKRUPTCY prevention -- Government policy; UNITED States. Bankruptcy; BANKRUPTCY; BANKRUPTCY jurisdiction; UNITED States. Bankruptcy Court
- Publication
New York Law School Law Review, 2014, Vol 59, Issue 4, p625
- ISSN
0145-448X
- Publication type
Article