ARGUMENT ANALYSIS
on Dec 7, 2022
at 11:57 pm
Except they discover one other case within the subsequent few weeks, the argument Tuesday in Bartenwerfer v. Buckley will deliver a near this time period’s encounters with the Chapter Code. As I defined in my preview of the argument, Bartenwerfer presents a statutory puzzle: whether or not the language of the code permits an individual in chapter to discharge a debt incurred by the fraud of her husband.
The query comes from the language of Part 523(a)(2)(A) of the Chapter Code, which protects – and thus preserves from the discharge – any creditor’s declare for “cash … obtained by … precise fraud.” The declare within the case was incurred by the fraud of David Bartenwerfer; Kate Bartenwerfer, who didn’t herself commit fraud, is nonetheless answerable for that fraud as a result of David was performing as her companion (in promoting the home that they owned collectively).
Kate Bartenwerfer’s counsel (Sarah Harris) steadily pressed her argument that as a result of the statute is discharging claims towards the debtor, the availability solely is sensible if the money owed that the exception preserves have been incurred by fraud of the debtor; as a result of the fraud right here was by one other particular person (her husband), her chapter ought to discharge the debt. However not one of the justices appeared to seek out that argument believable. The criticism began with Justice Clarence Thomas. He challenged Harris’s “deal with the debtor,” declaring that the language of subparagraph (A) “focuses on the debt. It’s … speaking about cash or debt that’s obtained by fraud. How do you exchange that right into a statute that’s specializing in the debtor?”
When Harris responded by pointing to particular textual references to the “debtor” in adjoining provisions, Thomas rapidly interjected: “Doesn’t it work towards you that a few of these provisions that you just’re referring to really converse when it comes to ‘the debtor’ and refer particularly to ‘the debtor’? … Doesn’t that argue towards … treating this provision the very same approach that doesn’t check with ‘the debtor’?”
Justice Elena Kagan got here subsequent. For Kagan, Harris’s dialogue appeared “to be saying that Congress is simply careless when it writes this statute.” As Kagan went on to clarify, although, congressional carelessness doesn’t counsel a vote for Harris: “There are some statutes the place Congress is careless. However right here we’re. We’ve a textual content. The textual content, it appears to me, cuts towards you. … It’s the person debtor that has the debt, however, after that, it’s for cash obtained by false pretenses and fraud, anybody’s false pretenses and fraud.” Kagan commented that she would wish “one thing very vital that goes towards the language” to justify Harris’s argument that the court docket ought to “insert the phrases ‘the debtor’s personal fraud’” into subparagraph (A).
And it solely went downhill from there, as Justice Ketanji Brown Jackson weighed in from the top of the bench with a barely totally different concept. Jackson reasoned that Bartenwerfer ought to lose “even when we agree … that it must be the debtor’s fraud.” Jackson pointed to “vicarious legal responsibility,” which holds every companion liable for the fraud of different companions. Jackson repeatedly emphasised a chapter case from the 19th century (Strang v. Bradner) through which the Supreme Courtroom utilized that exact precept, in addition to a newer case beneath the Chapter Code (Subject v. Mans). In Jackson’s abstract, Subject holds “that fraud within the Chapter Code is outlined by frequent regulation ideas. And we do have within the frequent regulation this notion that individuals are held liable for the fraud of brokers.” For Jackson (exhibiting off her pre-argument preparation), “in the event you learn Subject, it’s very clear – it’s a Justice Souter opinion from 1995 – we’re saying that there was no cause to doubt Congress’s intent to undertake a typical regulation understanding of the phrases that it used on this very statute.”
Extra skepticism – this time from the middle of the bench, Chief Justice John Roberts. Roberts was preoccupied with the distasteful safety of “a person debtor whose companion is responsible of fraud,” regardless that the debtor “might effectively profit from [the fraud] since … the cash might effectively go to … belongings for the partnership.” Roberts recommended that it will be insupportable to allow discharge in that case when the companion knew concerning the fraud. As Harris tried to reply, Roberts repeated that conclusion time and again: “She knew concerning the fraud, didn’t do something about it, and but you’d say she’s … discharged …. If she knew about it. She knew about it. She knew about it and didn’t do something.”
Justice Sonia Sotomayor was subsequent, taking the dialogue again to Jackson’s level about frequent regulation guidelines for fraud: “So beneath frequent regulation aren’t you answerable for the fraud of an agent or companion?” For Sotomayor, one more of the court docket’s earlier circumstances (Husky Worldwide Electronics v. Ritz) required the conclusion that the court docket ought to impute the fraud of the husband/companion to Bartenwerfer herself.
As Harris’s argument wound down, Kagan and Justice Samuel Alito introduced the dialogue again to the Strang case Jackson talked about. Harris had argued that Strang was irrelevant due to adjustments within the chapter statute, however Alito and Kagan discovered these adjustments lower towards Bartenwerfer. Alito quipped: “You talked about very briefly that we shouldn’t be involved about it as a result of it was decoding the chapter regulation in impact in 1885. However the statute in impact there was extra hostile to your place than the statute in impact right here.” After which Kagan added: “As Justice Alito stated, that was a extra hostile statute to your place. And afterwards, what Congress does is it amends the statute in order that the textual content of the statute really displays higher the Strang holding. So shouldn’t we take from that that … Congress regarded on the Strang holding and principally stated let’s repair the statute in order that we are able to replicate that holding fairly clearly?”
The justices’ dialogue with Zachary Tripp (representing the creditor making an attempt to guard its declare towards Bartenwerfer) was not practically so hostile. The justices for essentially the most half appeared to be debating the most effective path to a choice. Within the absence of Justice Stephen Breyer, it was Sotomayor who posed the important thing hypothetical: “I get hold of a mortgage fraudulently. Later, I promote that debt to my good friend, Justice Thomas, who has no concept concerning the fraud. Justice Thomas … recordsdata for chapter. He desires to discharge the debt. Can he?” The purpose of the hypothetical was that Thomas is totally harmless of and uninvolved with the fraud, far more distant from it than Bartenwerfer. But Tripp’s argument would impose legal responsibility on Thomas. Tripp definitely hemmed and hawed for some time, however he caught to his place that the only factor for the court docket to do is to use the statute as written, even when it left Thomas answerable for the debt.
Tellingly, the response of the bench was to not pounce and declare that end result insupportable. The tone was a lot gentler. Justice Amy Coney Barrett, for instance, interjected that “you’ve gotten a very good argument on the textual content, however there’s sort of an anomaly right here. … Look, I believe the language cuts in your favor. I’m simply asking you, as a coverage matter, why do you assume Congress would have had such a harsh end result.”
Jackson, who at instances appeared to be auditioning to draft the bulk opinion, recommended that Tripp was “encouraging us to not do greater than we have now to, and I perceive that, however why wouldn’t the textual content simply lend itself [to us] saying simply that particular person debtors’ legal responsibility can come up by vicarious legal responsibility, see Strang.” Jackson recommended that imposing legal responsibility within the Thomas hypothetical could be “what I might contemplate to be the maximalist factor, saying it may be anyone’s fraud.” The Strang evaluation “appeared to me to be a narrower approach to do that, however perhaps I’m it flawed.”
Because the dialogue continued, Sotomayor supported Jackson’s strategy, emphasizing that in her hypothetical “it’s not Justice Thomas’s fraud. He wasn’t a companion with me who dedicated the fraud. He didn’t even know concerning the transaction, that it was fraudulent. So why ought to he be held liable? That’s the benefit of Justice Jackson’s strategy, isn’t it?”
One entertaining theme of the argument was the repeated dialogue of the “careless” drafting of the Chapter Code. Along with Kagan’s remark mentioned above, Alito recommended that “once I take a look at all of the provisions which have been cited, some discuss ‘the debtor,’ some don’t discuss ‘the debtor,’ it appears extra haphazard than a sample from which we are able to infer very a lot. No?” After which on the very finish of the argument, Kagan requested Erica Ross (who appeared on behalf of the federal government, opposing the discharge), whether or not she thought that “Harris is correct that this was all sort of like an accident, [that] whether or not it says ‘of the debtor,’ whether or not it doesn’t say ‘of the debtor,’ Congress was careless, Congress wasn’t excited about it, it means nothing. However I’m simply questioning whether or not you assume that that’s proper, that that is principally carelessness.” Ross, predictably sufficient, argued that the drafting was not carelessness however moderately mirrored some degree of intent, suggesting that the apparently haphazard inconsistencies end in many circumstances from the mixture of many provisions written for various functions at totally different instances.
Ultimately, the fundamental downside for Harris is the mixture of a conclusion that the statute is at worst careless with an entire lack of feeling that it’s in any approach outstanding that Bartenwerfer’s legal responsibility would cross by the chapter undischarged. Missing a powerful advocate for her place, and going through robust opposition from such a disparate group of justices, the probably end result could be a quick and unanimous opinion, maybe from the court docket’s not too long ago appointed junior justice.
