THE NEW TEXTUALISM AND THE RULE OF LAW SUBTEXT IN THE SUPREME COURT'S BANKRUPTCY JURISPRUDENCE

The Supreme Court is thought to use a method of statutory interpretation called "the new textualism" when construing Federal Statutes, including the Bankruptcy Code. The new textualism, in brief, ties interpreters more closely to the text than more traditional interpretative methods. This Essay inquires into the justifications for the new textualism, but its primary goal is to argue that the Court prefers an important justification of this interpretative method to the method itself. The justification holds that interpretation should advance the rule of law virtues of certainty and predictability.

A court that is committed to the new textualism would construe statutory standards as standards. This Essay argues that the Court, in contrast, exhibits a strong tendency to transmute Bankruptcy Code standards into bright line rules that maximally confine the discretion of the bankruptcy courts that administer the Code, and the district courts that review them. This tendency is in the self conscious service of attempting to advance the rule of law virtues. The Essay goes on to argue that judicial attempts to restrict the discretion of administrators are likely to fail when the governing statute, like the Bankruptcy Code, is intended to confer on administrators a large discretion; and the Essay suggests the possibility that the Court may be reading other statutes as it reads the Bankruptcy Code, subject to Chrevon type constraints that do not apply to bankruptcy as a field of Federal regulation.