I can pinpoint almost to the hour when my thoughts first turned to the subject of this book: Thursday morning, October 9, 1986. I was a law clerk for Justice Powell, and the Supreme Court had heard arguments the previous day in an obscure bankruptcy case captioned Kelly v. Robinson, in a month in which the Court also heard arguments in the landmark McCleskey v. Kemp (1987), which upheld the constitutionality of the death penalty despite statistical evidence of a pervasive racial bias. The issue in Kelly was whether a bankruptcy filing discharged the debtor's obligation to pay restitution imposed as part of a criminal sentence. I had worked hard preparing for this case and had provided the Justice with a detailed bench memorandum explaining my view that the language of the statute compelled the conclusion that the bankruptcy discharge absolved the debtor of the obligation to pay restitution. The basic point was that restitution is compensatory in nature and thus is not properly considered a “penalty” exempted from discharge under Bankruptcy Code Section 523. Because I had focused on commercial law courses in my law school studies, including multiple courses involving the Bankruptcy Code, I felt well qualified to examine the question. My confidence was buttressed by the knowledge that the other eight law clerks working on the case shared my view, including, among others, Dan Bussel (now a successful bankruptcy professor at UCLA) and my colleague at Columbia Eben Moglen.

I was anxious and excited when I entered the Justice's office to discuss the case. It was the first argued case I had discussed with him, and so I did not know what to expect. As always, he was most gracious. He had read my memorandum with care, annotating it throughout. He waited patiently and attentively through my brief presentation summarizing my views of the statute. When I was finished, he smiled and nodded approvingly. He then told me that he was sure my statutory analysis was meticulous, but that he was just as sure that his colleagues would not decide that a bankruptcy court had the power to absolve a state criminal sentence. I left his office doubtful at best that he could be right – the statute seemed so clear.