Various Things

by hilzoy

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."

Another Warren Reports post has a link to an interesting article on the shortcomings of the new bankruptcy bill -- not as policy, but simply as a law:

"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.

Comments

[dutchmarbel]

The Germans found the solvency solution: printing their own money...

[Fraser]

The author of Hellfire Nation points out a classic example of what you're talking about in the original white-slavery laws making it a crime to transport girls across state lines for immortal porpoises--er, immoral purposes. The bill was written so vaguely to prevent white slavers finding any legal loophole, but the side-effect was that it also brought adulterers, regular prostitutes and others who crossed state lines into violation of federal law, which hadn't been intended.

[Dantheman]

"to transport girls across state lines for immortal porpoises--er, immoral purposes."

Fraser, if you're going to made an egregious pun, make the whole one. It's transporting gulls across a staid lion for immortal porpoises.

[togolosh]

Getting the wording right is critically important. Also just getting the right legislative intent is important. Too many laws are passed in a rush to give the impression that something is being done, with little, if any, attention to whether the law addresses the problem in an effective manner. This sucks for liberals, since it creates a big mess of lousy law which the right can use as evidence that government doesn't work. The core liberal effort should be towards effective government, not just government that tries to address problems. It's not just a matter of doing the job right, it's also a matter of smart politics.

[Bernard Yomtov]

I am one of what I imagine is the vanishingly small group of non-lawyers who get really annoyed by badly drafted statutes.

I'm another. I suspect that the problem is more widespread than we know.

I was once involved, peripherally, in a case that challenged how Good Conduct Time ("time off for good behavior") is calculated for federal prisoners. The statute is unclear for the simplest of reasons - it fails to define critical terms and then uses them to mean different things in different places.

The law here is not particularly complicated or lengthy. It would have been easy to be precise. It just wasn't done.

[bleh]

Okay, but precision and venality are by no means mutually exclusive. Sit in a room full of corporate lawyers and that will quickly become apparent. (Sorry, I wouldn't actually wish that on anyone. Well, maybe a Republican. But no, they might enjoy it.)

Anyway, is there anything more to this than simply "Christmas tree" sloppiness? The Garbage Can Model of legislation: it's gonna pass, so get a provision attached.

Perhaps a certain inaccuracy is actually to the benefit of the credit card issuers and their fellow travellers: the denser the legal thicket, the less likely anyone without corporate-sized pockets will be able to use -- much less challenge -- the law.

[Katherine]

OT: we're up for best series.

[Gary Farber]

"OT: we're up for best series."

And as I pointed out before, not going to win when the pointers go to the broken search engine results and largely to irrelevant posts. Shame, that, but apparently no one is any more interested in fixing it now than when I pointed out the problem a year ago.

It really is a shame, though, that people won't even get to read your posts due to this.

[Nell]

What are you referring to, Gary? The links in the post cited at Wampum go to the posts on the Graham amendment, in the order they appeared. I just opened them in sequence; none of them appeared to me to be irrelevant. Are you pointing to problems with links inside the posts themselves?

I doubt this series will win, either, but that's because the nature of the topic, nothing about the links. It was a heroic example of effective intellectual and political response to a moment of crisis for our legal system. The posts were written under intense time pressure, for practical use in countering the 'arguments' put forward by the Enablers -- yet much of the writing stands up well as writing.

The Graham amendment series is one that doesn't aim to tug at the heartstrings. It's a small "market": Plame obsessives outnumber by many times those focused on the Unitary Executive/Enabling Legislature/Detention & Torture waking nightmare. And the quality of the competition is extremely high.

I'm an activist. Writing that motivates and equips for action impresses me far more than writing for reflection, or recreation, or the many other purposes possible. This series, to me, exemplified the "highest and best use" to which blogs can be put.

But it quite possibly is not what most people are looking for in a Koufax winner. Doesn't diminish my awe a bit if not.

[Catsy]

I thought it was "sedate lions"?

[Gary Farber]

"What are you referring to, Gary? The links in the post cited at Wampum go to the posts on the Graham amendment, in the order they appeared."

Ah, I see this Wampum post is a new post, only there since yesterday; hadn't noticed that when I quickly looked again earlier today; the one that's been the one people voted off of before March 20th had no such link. It simply gave the same broken link to the Atomz search result that is still the first link in this Wampum post, which is what most people will logically click on first, which is as I previously described.

But it's a step in the right direction that at least now, as of March 20th, people have an easier way to find the nominated posts, beyond the previous clicking on the link, not noticing that the link was semi-useless, and having to hunt for the posts on their own.

I'd still suggest that the two minutes necessary to get rid of the Atomz search engine in the sidebar here and replace it with Google or any other working search engine might be a two minutes well spent. But I've only suggested this half a dozen times or so for more than a year, and it's not my blog, so I should try to shut up again about it.

Meantime, I'd quite like to see Katherine and Hilzoy's efforts win, but if they don't, I'll blame it on this fiasco. (And since ObWi was previously nominated in other categories, I can blame it not advancing on this problem.) (Honestly, though, I hadn't even noticed that this is a new round of voting; I thought the last round was the final round, because I don't pay any attention to any of the blog awards, because a) awards are silly; and b) I see a clear flaw in them for now. :-))

[Funkie]

Hi ! Your site is very interesting. Thank you.