Study Examines Potential BAPCPA Constitutional Issues
Back when the credit card industry was pushing hard for a bill that eventually became the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), we challenged their assertions that a new bankruptcy law was needed to curtail "alleged" abuses of the system by individual debtors who were supposedly racking up debt just for the heck of it and then using bankruptcy as a get-out-of-a-jail -for-free card (as they wanted everyone to believe).
While BAPCPA made it more difficult to file bankruptcy by instituting a means test for Chapter 7 filers and stipulating mandatory credit counseling before filing bankruptcy and a debtor education course after filing but before receiving a discharge, it was clear to us then, as it is now, that this law was fundamentally flawed in its origins.
With this considered, a recent study by Erwin Chemerinsky of the University of California examines how BAPCPA's language may also open up some important Constitutional issues, including whether:
• the First Amendment is violated by the law's requirements on the content of attorney advertising and its regulation of the advice that bankruptcy attorneys can give to their debtor clients?
While BAPCPA made it more difficult to file bankruptcy by instituting a means test for Chapter 7 filers and stipulating mandatory credit counseling before filing bankruptcy and a debtor education course after filing but before receiving a discharge, it was clear to us then, as it is now, that this law was fundamentally flawed in its origins.
With this considered, a recent study by Erwin Chemerinsky of the University of California examines how BAPCPA's language may also open up some important Constitutional issues, including whether:
• the First Amendment is violated by the law's requirements on the content of attorney advertising and its regulation of the advice that bankruptcy attorneys can give to their debtor clients?
• the Tenth Amendment or separation of powers is infringed upon by the law's regulation of attorney conduct?
• uniformity requirement or equal protection is violated by the means test?
• the right to privacy is violated by debtor disclosure requirements?
While the study doesn't go into providing answers to these questions, it rather takes the approach of asking whether such Constitutional issues may be raised as BAPCPA is examined in greater detail.
People who file bankruptcy without a lawyer are given a hard time
Interesting, thanks for the read!
if someone intentionally makes large purchases just prior to filing bankruptcy, are you held accountable for those purchases