Wednesday, February 14, 2007

The Two Schools of Thought Construe BAPCPA

The Court in In re Grydzuk, 353 B.R. 564 (Bankr.N.D.Ind. 2006) submitted that there are two major schools of thought now prominent among bankruptcy scholars and bankruptcy judges as to the manner in which the BAPCPA is to be construed.

The first school of thought is the "literalist" movement which holds that "it says what is says it says" even though if it does not make any sense. Under the literalist movement, the law must be construed in strict accordance with the statutory language.

The other school of thought is the "common sense" approach which accepts the fact that the BAPCPA in many instances makes no sense whatsoever and that it must be construed against the background of what it is presumed the drafters intended to change from the prior law.
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