The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For the longest time, I considered Justice Scalia the best writer on the Court, with a two-way tie for second between the Chief Justice and Justice Kagan. Since Scalia's passing, I have leaned towards Kagan as my favorite writer. She writes in a plain style that reads conversational, without having to try too hard. When humor is called for, she uses it subtly. When she has to drop the hammer, she bludgeons brutally. And there is never any doubt what she is saying. The prose is clean. When the Chief writes alone, it is a joy to read. You can tell he is really having fun. I thoroughly enjoy his annual addresses, because they are pure, unadulterated, Roberts, without the filter of his judicial role. Alas, in contested cases, the Chief, far too often, obfuscates his own writing to make his reasoning malleable. And his tortured reasoning (see Dobbs concurrence) masks his superior legal acumen.
Who is currently number three on the list? Justice Barrett may be the Court's fastest writer, by a large margin. She is also climbing up my ranks for the Court's best writer. I had the joy today of reading Bartenwerfer v. Buckley. And I truly mean, joy. It was a joy to read. The substance would usually make my eyes glaze over: the Bankruptcy Code. But Barrett wrote a crisp, fun, unanimous opinion. It read like an impromptu lecture the former professor would have delivered in her statutory interpretation class. And it involves a nerdy analysis of grammar, with a relatable hypothetical.
The case turned on whether debt for money that was "obtained by . . . fraud" was dischargeable in bankruptcy proceedings. The statute was framed in the passive voice. So who does it apply to? Just the person who committed the fraud? Or also to the fraudster's business partner? Barrett framed the issue cleanly:
The provision obviously applies to a debtor who was the fraudster. But sometimes a debtor is liable for fraud that she did not personally commit—for example, deceit practiced by a partner or an agent. We must decide whether the bar extends to this situation too. It does. Written in the passive voice, §523(a)(2)(A) turns on how the money was obtained, not who committed fraud to obtain it.
Counselor for Petitioner offered an example to argue the partner was not covered by the statute:
To illustrate, she offers the sentence "Jane's clerkship was obtained through hard work." According to Bartenwerfer, an ordinary English speaker would understand this sentence to mean that Jane's hard work led to her clerkship. Brief for Petitioner 20. Section 523(a)(2)(A) supposedly operates the same way:An ordinary English speaker would understand that "money obtained by fraud" means money obtained by the individual debtor's fraud. Passive voice hides the relevant actor in plain sight.
In the abstract, this hypothetical is pitch-perfect. The Justices know a lot about law clerks and can relate. Indeed, Justice Kagan asked hypos about her law clerks in King v. Burwell and in 303 Creative v. Elenis. What could go wrong?
Alas, Barrett turned the hypo around on the petitioner, and explained that obtaining a clerkship is not necessarily due to Jane's hard work. Other people are involved.
We disagree: Passive voice pulls the actor off the stage. At least on its face, Bartenwerfer's sentence conveys only that someone's hard work led to Jane's clerkship—whether that be Jane herself, the professor who wrote a last-minute letter of recommendation, or the counselor who collated the application materials.
Indeed, as everyone in the game knows, a reference often goes much further than the applicant's actual accomplishments. See Yale Law School.
The rest of the opinion considers the canons of construction (including noscitur a sociis), the passive voice, and various policy arguments. Plus, there are many snazzy lines with imagery, alliteration, and word-play:
[Petitioner argues that] Passive voice hides the relevant actor in plain sight. We disagree: Passive voice pulls the actor off the stage.
This argument earns credit for color but not much else.
And while Bartenwerfer paints a picture of liability imposed willy-nilly on hapless bystanders, the law of fraud does not work that way.
Barrett doesn't use Scalia's sharp elbows, but can pull out the flair when needed.
Plus there is a detour to Swift v. Tyson:
3 Bartenwerfer asserts that we should ignore Strang because, as a product of the Swift v. Tyson era, it turned on the Court's understanding of the general common-law rule rather than its interpretation of the statutory text. 16 Pet. 1 (1842). This argument is a detour we need not take. Whatever Strang's rationale, it constituted an important part of thebackground against which Congress drafted the current discharge exception for fraud.
Oh boo. We all really want to know what Barrett thinks about Swift v. Tyson.
You should read the entire opinion.
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