Sunday, November 19, 2006

textualism

Textualism is a popular way to interpret laws today. As I understand it, the approach assumes you can apply standard dictionary meanings and rules of English grammar to determine the meaning of a statute. One difficulty I have with the approach is that, when people write laws, they strive for a level of precision that goes beyond the normal, every-day situations where English usually operates. For example, consider this gem, 11 U.S.C. § 547(c) (2000), which you can get by searching GPOAccess. (I haven't provided a direct link because I'm not confident it would stay stable). It's part of the federal bankruptcy code:

(c) The trustee may not avoid under this section a transfer--
(1) to the extent that such transfer was--
(A) intended by the debtor and the creditor to
or for whose benefit such transfer was made to be
a contemporaneous exchange for new value given to
the debtor; and
(B) in fact a substantially contemporaneous
exchange;

(2) to the extent that such transfer was--
(A) in payment of a debt incurred by the debtor
in the ordinary course of business or financial
affairs of the debtor and the transferee;
(B) made in the ordinary course of business or
financial affairs of the debtor and the transferee;
and
(C) made according to ordinary business terms;

(3) that creates a security interest in property
acquired by the debtor--
(A) to the extent such security interest secures
new value that was--
(i) given at or after the signing of a
security agreement that contains a description of
such property as collateral;
(ii) given by or on behalf of the secured
party under such agreement;
(iii) given to enable the debtor to acquire
such property; and
(iv) in fact used by the debtor to acquire
such property; and

(B) that is perfected on or before 20 days after
the debtor receives possession of such property;

(4) to or for the benefit of a creditor, to the
extent that, after such transfer, such creditor gave new
value to or for the benefit of the debtor--
(A) not secured by an otherwise unavoidable
security interest; and
(B) on account of which new value the debtor did
not make an otherwise unavoidable transfer to or for
the benefit of such creditor;

(5) that creates a perfected security interest in
inventory or a receivable or the proceeds of either,
except to the extent that the aggregate of all such
transfers to the transferee caused a reduction, as of the
date of the filing of the petition and to the prejudice
of other creditors holding unsecured claims, of any amount
by which the debt secured by such security interest
exceeded the value of all security interests for such debt
on the later of--
(A)(i) with respect to a transfer to which
subsection (b)(4)(A) of this section applies, 90 days
before the date of the filing of the petition; or
(ii) with respect to a transfer to which
subsection (b)(4)(B) of this section applies, one
year before the date of the filing of the petition;
or
(B) the date on which new value was first given
under the security agreement creating such security
interest;

(6) that is the fixing of a statutory lien that is
not avoidable under section 545 of this title;

(7) to the extent such transfer was a bona fide payment
of a debt to a spouse, former spouse, or child of the
debtor, for alimony to, maintenance for, or support of such
spouse or child, in connection with a separation agreement,
divorce decree or other order of a court of record,
determination made in accordance with State or territorial
law by a governmental unit, or property settlement
agreement, but not to the extent that such debt--
(A) is assigned to another entity, voluntarily, by
operation of law, or otherwise; or
(B) includes a liability designated as alimony,
maintenance, or support, unless such liability is
actually in the nature of alimony, maintenance or
support; or

(8) if, in a case filed by an individual debtor whose
debts are primarily consumer debts, the aggregate value of
all property that constitutes or is affected by such transfer
is less than $600.

Eyes glazed yet? Notice that that entire block of text is all one sentence. which in itself means it's broken a normal rule of good writing and limiting sentence lengths. It seems odd to expect that anything written this way conforms to the normal conventions of English writing. It resembles English, but once you get below the surface, you're in a different world.

2 comments:

Anonymous said...

Now I know why I never considered a career in law. :-) Maybe a legal form of mathematics or something should be developed...

mika said...

I suggested that a legal form of statistics would help things clearer. False data and his fried said "No, lawyers DON'T WANT to make things clear." oh, well ....