Michael Francus (University of Virginia; University of Notre Dame – Notre Dame Law School) has posted The Truth About Consequences: Purdue Pharma’s Lessons for Statutory Interpretation on SSRN. Here is the abstract:
The Supreme Court’s opinion in Harrington v. Purdue Pharma LP made waves in the world of bankruptcy. Scholars and practitioners alike have discussed the opinion’s impact on bankruptcy practice and on mass-tort resolution. But an important undercurrent of the opinion–statutory interpretation–has yet to receive similar attention.
At the core of Purdue Pharma was a debate over the role of consequences in statutory interpretation. Justice Kavanaugh’s dissent (for four justices) anchored its reasoning in the dire consequences that would follow from the Court’s holding that the Bankruptcy Code did not allow Purdue to release the Sackler family of liability in Purdue’s bankruptcy. The dissent warned that “without releases . . . the will be no viable path to recovery” for millions of opioid victims as “the plan will unravel.” Justice Gorsuch’s majority, by contrast, rejected that argument as irrelevant and held that the Bankruptcy Code did not permit Purdue’s plan to release the Sackler family of liability.
Now, seventeen months removed from the opinion, Purdue has confirmed a new plan of reorganization, one which gives the opioid victims $100 million more than the plan that the Court reviewed in Purdue Pharma gave them.
This Essay takes the occasion of Purdue’s plan confirmation as an opportunity to reflect on the statutory interpretation in Purdue Pharma. The Essay unpacks why the dire consequences predicted by the dissent did not materialize, why those dire consequences were so difficult to predict accurately, and how the difficulties of prediction in Purdue Pharma obtain more generally for predicting the consequences of judicial decisions. In light of those epistemic difficulties, this Essay contends that judges ought to downgrade their use of consequences in statutory interpretation.
Recommended.