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
Learn more about PhilPapers
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.
|Keywords||No keywords specified (fix it)|
No categories specified
(categorize this paper)
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Brad Johnson, B. R. Baliga & John D. Blair (1986). Chapter 11: Strategic Advantage and Social Anathema? [REVIEW] Journal of Business Ethics 5 (1):51 - 61.
Dinah Payne & Michael Hogg (1994). Three Perspectives of Chapter 11 Bankruptcy: Legal, Managerial and Moral. [REVIEW] Journal of Business Ethics 13 (1):21 - 30.
Thomas E. Plank, Sense and Sensibility in Securitization: A Prudent Legal Structure and a Fanciful Critique.
Geoffrey Tweedale & Richard Warren (2004). Chapter 11 and Asbestos: Encouraging Private Enterprise or Conspiring to Avoid Liability? Journal of Business Ethics 55 (1):31 - 42.
Tweedale Geoffrey & Warren Richard (2004). Chapter 11 and Asbestos: Encouraging Private Enterprise or Conspiring to Avoid Liability? [REVIEW] Journal of Business Ethics 55 (1):31-42.
Christopher Toner (2005). Just War and the Supreme Emergency Exemption. Philosophical Quarterly 55 (221):545 - 561.
Georges A. J. Cavalier Jr, French Bankruptcy Law and Enforcement Procedures: Commercial Code - Article L. 632-2 Para.
Meir Tamari (1990). Ethical Issues in Bankruptcy: A Jewish Perspective. [REVIEW] Journal of Business Ethics 9 (10):785 - 789.
Sorry, there are not enough data points to plot this chart.
Added to index2009-01-28
Total downloads1 ( #390,893 of 1,096,179 )
Recent downloads (6 months)0
How can I increase my downloads?