Here's a one of those details that explains why I read Elizabeth Warren religiously:
"Did you know, for example, that while you need to sweat out your credit report, the credit bureaus keep a special "V.I.P." list of prominent citizens whose reports are specially tidied up so they look cleaner than they really are? If the big boys never experience the harassment or increased costs of a credit ding, then they are a lot less likely to insist on more legal oversight. There are many ways to lobby, and this one requires no reporting at all."
"The Bankruptcy Abuse Prevention and Consumer Protection Act -- which went into effect last October -- makes problematic changes to the system, Klee and Levin say, using problematic language to do so.
Among Klee's examples:
- A cross-referencing error changes the apparent meaning of a provision about loan default penalties.
- A section aimed at curbing malpractice suits against bankruptcy practitioners doesn't mention the statute under which most such suits are filed.
- Ambiguous language in a provision on trustee commissions leaves unclear whether compensation for a trustee is capped.
In short, the country's top bankruptcy lawyers say the legislation is intellectually and linguistically insolvent.
"The problem is the new law is so poorly crafted and so internally inconsistent that within a year or a year and a half, you're going to see a lot of appeals," Klee said. (...)
"The bill was drafted without consultation with bankruptcy judges and courts," said 9th Circuit Chief Judge Mary Schroeder. "Since they didn't consult with judges, they didn't use terms of art.""
And a delightful description of the process whereby the law was written:
"Proponents and critics agree that the one unifying principle behind the law is that creditors with good lobbyists got what they wanted.
That's because during the eight years it sat around Congress, the legislation turned into a virtual sump for provisions suggested by business interests.
Many of those provisions will work to the detriment not just of debtors, but of other, smaller creditors. This is true both of the little-publicized changes to business bankruptcies and the well-reported draconian changes to consumer insolvency.
Stephen Case -- a former partner at Davis, Polk & Wardwell in New York, and an adviser to the National Bankruptcy Review Commission, which proposed much of the legislation in a 1997 report -- said the drafting process was largely a lobbyist free-for-all.
"Suppose you let a bunch of school kids loose on an old car with a paintbrush," he said, in describing the process."
I am one of what I imagine is the vanishingly small group of non-lawyers who get really annoyed by badly drafted statutes. When you decide to prohibit something, it seems to me that you ought to make it clear what it is that you're prohibiting, rather than leaving citizens to try to guess what you had in mind. But vagueness, bad as it is, is better than enacting a law that does something entirely different from what you intended. I am currently trying to track down a story that someone in Delaware proposed what he or she thought was a bill banning cloning that would actually have banned pregnancy. Not having tracked it down, I can't yet vouch for its truth; however, there's also this gem from last year: the bill that would have required a 'fetal death report', including all sorts of information like "weight of fetus in grams", whenever a fetus died. When enough people pointed out that it was abhorrent to ask, say, a woman who had just had a miscarriage to try to recover the fetus and weigh it, and submit a report within twelve hours, the legislator who proposed it decided to change the bill.
He seemed to think that it was mean of all of us to point out the effects that his bill would have had, which he had (by his own account) not intended. I thought it was a good thing that the law was changed, but also a good thing that that legislator was reminded of the importance of careful drafting. Laws are serious business, and drafting them well is a legislator's job.
Bad drafting, of course, is not as bad as letting your campaign contributors dictate the content of a bill. But since I've already written about corruption today, I'll just let that part of the article stand without comment.