462
Thomas, J., concurring in judgment
proval of reorganization plans, unlike early pre-Code practice where plan confirmation depended on unanimous creditor approval and could be hijacked by a single holdout. See D. Baird, The Elements of Bankruptcy 262 (rev. ed. 1993). Hence it makes little sense to graft onto the Code concepts that were developed during a quite different era of bankruptcy practice.
Even assuming the relevance of pre-Code practice in those rare instances when the Code is truly ambiguous, see, e. g., Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494, 501 (1986), and assuming that the language here is ambiguous, surely the sparse history behind the new value exception cannot inform the interpretation of § 1129(b)(2)(B)(ii). No holding of this Court ever embraced the new value exception. As noted by the majority, ante, at 445, the leading decision suggesting this possibility, Case v. Los Angeles Lumber Products Co., 308 U. S. 106 (1939), did so in dictum. And, prior to the Code's enactment, no court ever relied on the Case dictum to approve a plan. Given its questionable pedigree prior to the Code's enactment, a concept developed in dictum and employed by lower federal courts only after the Code's enactment is simply not relevant to interpreting this provision of the Code.2
This danger inherent in excessive reliance on pre-Code practice did not escape the notice of the dissenting Justices in Dewsnup who expressed "the greatest sympathy for the Courts of Appeals who must predict which manner of statu-2 Nor do I think that the history of rejected legislative proposals bears on the proper interpretation of the phrase "on account of." As an initial matter, such history is irrelevant for the simple reason that Congress enacted the Code, not the legislative history predating it. See United States v. Estate of Romani, 523 U. S. 517, 535-537 (1998) (Scalia, J., concurring in part and concurring in judgment). Even if this history had some relevance, it would not support the view that Congress intended to insert a new value exception into the phrase "on account of." On the contrary, Congress never acted on bills that would have allowed nonmonetary new value contributions. Ante, at 446-447.
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