No. This post has nothing to do with epistemology. Rather, it is to observe that Stephen Lubben has recently posted here what appears to be the initial part of a longer piece asking the question: "Do Empirical Bankruptcy Studies Matter?" The short answer: not much in the short term. The longer answer is that they may contribute to a lengthier analytic/narrative/political arc that eventually might have some impact on legislation or adjudication. Not exactly a ringing endorsement of the hard slog that is empirical research but nonetheless seems about right.
Lubben touches on another interesting question: If Congressional action in the field of bankruptcy isn't informed by empirical research, what does drive it? It can hardly be deductive logic given the enormous gap between higher order moral/legal principles and the quiddities of the Bankruptcy Code (and that's even assuming that members of Congress actually read bankruptcy legislation before voting). I think Lubben puts his finger on it when he writes that
Alternatively, and here I go citing myself again, it could be that our leading political actors are driven not so much by intuition but by ideology. See my rant against ideology in another context here. Of course, at bottom there may not be much difference between intuition and ideology but of the two, ideology is the more insidious. At their best, moral intuitions provide a launching point for consideration of the rational and empirical. Ideology, by contrast, cuts off thinking at the knees and leaves us bereft of solutions other than the exercise of raw political power. Which, come to think of it, is what characterizes the American scene today.
Lubben touches on another interesting question: If Congressional action in the field of bankruptcy isn't informed by empirical research, what does drive it? It can hardly be deductive logic given the enormous gap between higher order moral/legal principles and the quiddities of the Bankruptcy Code (and that's even assuming that members of Congress actually read bankruptcy legislation before voting). I think Lubben puts his finger on it when he writes that
Especially in the legal community, empiricism is rejected in favor of intuition. That involves empiricism of a different sort, typically based on very small sample sizes [oh, say, one] and whatever prejudices and biases the actor may hold.When it comes to intuition, every American has one and is proud of it: "Evidence and reasoning be damned, I know what's right/good/true." I have nothing against moral intuition, it's a fine place to begin moral reasoning. But as I observed in my Looking for Bedrock piece (abstract here), intuitionism is too thin a reed on which to hang human dignity (and by extension, human rights). Ditto and then some for the details of bankruptcy law.
Alternatively, and here I go citing myself again, it could be that our leading political actors are driven not so much by intuition but by ideology. See my rant against ideology in another context here. Of course, at bottom there may not be much difference between intuition and ideology but of the two, ideology is the more insidious. At their best, moral intuitions provide a launching point for consideration of the rational and empirical. Ideology, by contrast, cuts off thinking at the knees and leaves us bereft of solutions other than the exercise of raw political power. Which, come to think of it, is what characterizes the American scene today.
I have filed several hundred consumer bankrupcties in the past 4 years. I was not practicing before Congress passed the BAPCPA in 2005, but began practicing shortly thereafter, which certainly allowed some perspective on the perception of its intent based on its effect. Among the BAPCPA amendments I would note the newly required B22C form ("Means Test"), which incoporates IRS allowable expense deduction limitations for chapter 7 eligibility, as well as the "707(b)" totality of circumstances bankruptcy abuse mechanism which can be used to dismiss chapter 7 cases. This legislation created two immediately observable effects. First,it has forced more consumers out of chapter 7 and into chapter 13, thus promoting greater recoupment for credtors. Secondly,it has made filing bankrupcty more complex, thus trimming off a portion of would-be pro se filers, and barricading insolvent consumers from more affordable attorney representation. Ironically, while I have no citation here, bankrupcty filings have probably statistacally risen since the enactment of the BAPCPA. So, what was the driving force behind Congress enacting the BAPCPA in 2005, which has been the largest piece of bankruptcy legislation in some many years? Perhaps Congress foresaw a likelihood of downturn in the economy; evening off a projected increase in filings by forcing more chapter 13 cases could help maintain a status quo? Personally I have been disappointed with much of the sausage making in Washington as of late, so I feel I am being pretty generous here. Congress trying to maintain the status quo is a compliment anymore.
ReplyDeleteAttorney James Poe,
J.D. Regent University, 2005
After filing several hundred consumer bankruptcies in the post-BAPCPA bankruptcy arena, my perception of the Congressional intent behind the BAPCPA (enacted in 2005) is based on its current application.
ReplyDeleteI would note the newly required B22C form ("Means Test"), which implements IRS expense deduction limitations on Chapter 7 eligibility, as well as the "707(b)" totality of circumstances mechanism which can be used to dismiss a chapter 7 case. This legislation has made for two immediately observable effects.
First, it makes fewer consumer-debtors eligible for chapter 7, thus thrusting them into chapter 13 and thereby promoting greater recoupment for creditors. Secondly, it has added more complexity to bankruptcy practice, which has trimmed off a population of would-be pro se filers, and has discouraged insolvent consumers from filing at all due to increased costs for attorney representation. Ironically, while I do not have a citation here, statistically, bankruptcy filings have probably risen since the BAPCPA's enactment.
So what was the driving force behind Congress enacting the BAPCPA, which is the largest piece of bankruptcy legislation in so many years? Perhaps Congress foresaw a declining economy; evening out the projected increase in bankruptcy filings by requiring more chapter 13 cases in effort to maintain the status quo?
Personally I have been disappointed with the sausage-making process in Washington as of late, so I am being pretty generous here. Congress maintaining the status quo is a compliment anymore.
James M. Poe, Attorney at Law
J.D. Regent Law, 2005