William & Mary Business Law Review


Rucha Pandit


The Bankruptcy Code permits petitioners to discharge their student debts if they are able to demonstrate that their loans impose an undue hardship. Somewhat frustratingly, the Code does not define what exactly constitutes undue hardship in the context of student loan discharges. Moreover, neither Congress nor the Supreme Court has broken its silence to offer guidance on the issue. As a result, the rest of the federal judiciary has been once again, left to its own devices.

Over the past few decades, the Brunner and totality-of-the-circumstances tests have emerged as the standards that federal circuits choose between to assess whether student loan repayment would cause the petitioner undue hardship. Although an overwhelming majority of circuits has endorsed the Brunner formulation, the test is considered by many to set an impossibly high burden for petitioners to surmount.

This Note argues that the circuit split for determining undue hardship is purely illusory. The plain wording of both the Brunner and totality-of-the-circumstances formulations indicates that there is no real difference in the substantive inquiry conducted by each test. Rather, the divergence stems from a history of a retributive dicta being wrongly imputed to the Brunner standard. This Note argues that if the Brunner Standard is properly applied, the notion of a circuit split will be dispelled. Furthermore, this Note also encourages Congress to assist the judiciary by providing guidance on how it defines undue hardship.