The Challenge to the Bench and Bar Presented by the 2005 Bankruptcy Act: Resistance Need Not Be Futile
Jean Braucher | 2007 U. Ill. L. Rev. 93
Congress enacted the 2005 Bankruptcy Act in a climate of unfair accusations against bankruptcy judges and debtors’ lawyers. In addi-tion, because the Act is badly designed and drafted, bench and bar have had to struggle to attempt to achieve the legislation’s announced goals—abuse prevention and consumer protection. This article reviews the initial reactions of the profession to this extraordinary set of challenges.
In the first part of the article, Professor Braucher explores the early judi-cial responses to the 2005 Act. She categorizes decisions of judges in as-cending order of effectiveness: vanquished venting of frustrations with the Act, without offering solutions to achieve consumer protection and abuse prevention; nihilistic nitpicking at the Act’s imperfections, thwarting its few clear moves toward more principled debt relief; torturing the text in ways that are unlikely to be followed; and subtle subversion of the de-signs of the credit industry, designs that fortunately were not actually ex-pressed in the legislation.
The second part then examines how debtors’ lawyers have dealt with (or challenged) the many new burdens under the 2005 Act, including the re-quirements apparently imposed upon them as “debt relief agencies” and the need to generate a great deal of new paperwork and handle many new issues at once, while keeping fees affordable. The author ultimately concludes that there is good news despite the waste and chaos inflicted by the legislation. Professional organizations as well as a sense of professionalism have helped many judges and practitioners deal with a poorly crafted and conceived piece of legislation. She urges professionals to stay focused on the stated purposes of the legislation, abuse prevention and consumer protection, as the best means to keep the consumer bankruptcy system running effectively on behalf of the hopelessly overindebted.