Hon. Edith Jones has written 225 pages in dissenting opinions to express
her disagreement with many of the proposals adopted by the Commission.
Whether or not joined by other Commissioners, her dissenting opinions--read
with the majority views in the first four chapters of the report--will help Congress,
the bankruptcy community and the public understand the complexity and the
importance of the issues addressed by the Commission and the diversity of
perspective about those issues.
The process of preparing a report of more than a thousand pages has been, for the
Commission's professional staff, challenging and exhausting. The analytical
narrative in the report discusses the 172 proposals adopted by the Commission in
a series of votes, decided by at least a majority, over the last 16 months. The staff
has been writing and circulating the "final" report for at least that long, in a sense,
because the analysis is based largely on the research memoranda prepared by the
staff and circulated in advance of every meeting on each issue to each of the
Commissioners. It also is based on the memoranda prepared for other proposals,
more than 100 in all, that the Commission did not adopt. This process has been,
as it should be, a dynamic process. The Commissioners and the judges, lawyers,
academics and others following the Commission's work repeatedly offered
suggestions and comments that were incorporated into the staff's continuous
research and drafting.
On any given issue, the analysis in the report embodies the point of view
of at least five Commissioners, and the report notes the specific votes on
important issues where the Commission divided. There no doubt are sentences
or paragraphs in the report that one majority Commissioner might have written
differently, but there cannot be five (let alone nine) authors and editors for each
line in the report. In the subject areas where the Commission's vote was divided,
the report does not pretend to reflect every Commissioner's view, but it does
attempt faithfully to reflect the majority Commissioner's view and to discuss
competing considerations. The dissent no doubt faithfully reflects the view that
did not prevail and, together, the majority and dissenting views provide Congress
with a full and accurate picture of the Commission's discussions.
The majority and dissenting positions and views have long been apparent,
established formally with the Commission's public votes and established
informally in the free and open discussions at the Commission's meetings. Any
Commissioner not in the majority on a given issue was able from the moment of
any vote to begin fashioning a dissent or to try to persuade others to change their
position. Throughout the last two months, the report sections have been drafted
and redrafted by the staff -- developed, expanded, and improved as the staff
worked to give Congress the fullest, most complete report that it could. All the
work was done with the direct involvement of the Commissioners and those
interested in the Commission's work.
The procedural dissent that concludes Chapter 5 provides an opportunity
to close the report appropriately--with a final acknowledgment of the integrity,
scholarship, dedication, and hard work that the Commission staff demonstrated
every day. The staff's ability and enthusiasm under trying circumstances have
been remarkable. Their commitment to improving the American bankruptcy
system, by giving more than a year of their professional lives to the Commission
and helping fashion its recommendations, has been inspirational.