Source Publication Abbreviation
Fla. L. Rev.
A primary policy of bankruptcy law is to give consumer debtors a “fresh start” by discharging their debt. A rival policy is that the discharge of debt is a selectively conferred privilege that is not granted in some situations. For example, society is unwilling to pardon debt related to embezzlement or a domestic-support obligation. This “discharge restrictions” policy is manifested in part by the Bankruptcy Code’s exceptions to discharge. The U.S. Supreme Court has repeatedly recognized the tension between the fresh start and discharge restriction policies. It has sought to achieve a fair balance between these policies by applying a “plainly expressed” standard when interpreting exceptions to discharge. Surprisingly, the circuit courts have not followed the Supreme Court. Instead, nearly every circuit court has developed a practice of construing exceptions to discharge narrowly in favor of the debtor and against the creditor. This Article highlights this established practice and seeks to challenge it. In essence, the circuit courts have transformed the fresh start policy into a canon of construction when interpreting exceptions to discharge. This Article makes three contributions. First, it identifies and evaluates the circuit courts’ use of the fresh start policy as a canon of construction. Second, it analyzes Supreme Court jurisprudence and finds an established pattern rejecting the fresh start canon when interpreting exceptions to discharge. Third, it explores the purpose and nature of exceptions to discharge and argues the fresh start canon is an unsuitable tool for interpreting them.
Jonathon S. Byington,
The Fresh Start Canon
, 69 Fla. L. Rev. 115
Available at: http://scholarship.law.umt.edu/faculty_lawreviews/141