Discourse and discharge: Linguistic analysis and abuse of the 'exemption by declaration' process in bankruptcy
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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In Taylor v. Freeland & Kronz, the United States Supreme Court interpreted section 522(1) of the Bankruptcy Code according to its "plain meaning" and permitted a debtor to exempt $110,000 that was ineligible for exemption under substantive exemption law. The decision of the Court was premised on the fact that there was no timely objection to the claim of exemption. Although conceding that its decision might tempt debtors to claim exemptions in property ineligible for exemption on the chance that the trustee and creditors would fail to object in time, the Court cataloged a number of other remedies, including denial of discharge for false claims or false statements and criminal prosecution for perjury, that it suggested would be applicable to deter bad faith claims of exemption. This Article undertakes a law and linguistics analysis of the false claim, false statement, and perjury issues in the context of bad faith claims of exemption. Following a description of the process for exempting property in Chapter 7 cases and a description of basic rules regarding residual remedies that the Supreme Court suggested remain viable for false statements made in the exemption process despite 522(1), conversational implicature analysis drawn from linguistics is applied to develop insights about elements of those remedies. The concept of a "false" statement (a requirement of a false oath, perjury, and bankruptcy crimes) is assessed from the perspective of linguistics. It is argued that upon commencing a bankruptcy case, the debtor begins a communicative process with the bankruptcy court, creditors, and the trustee. This process occurs initially through the verified bankruptcy schedules that the debtor files. This communicative process is fundamentally a conversational exchange in which the debtor conveys meaning through the use of conversational implicature. This bankruptcy discourse, like other talk exchanges, operates in accordance with linguistic principles. Therefore, linguistic principles may be applied in the bankruptcy context to determine whether the debtor makes a false statement when filing a fictitious exemption declaration.
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