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24 Am. Bankr. Inst. L. Rev. 1 (2016)

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                            JONATHON S. BYINGTON**


    Bankruptcy law has fiercely competing policies. A primary one is the debtor's
fresh start. Another is that discharge of debt is a selectively conferred privilege
rather than an unlimited right. This latter policy is manifested in part by the
Bankruptcy Code's exceptions to discharge. One exception involves a debt for...
defalcation while acting in a fiduciary capacity.' In 2013, the Supreme Court
addressed the meaning of the term defalcation and established a new, heightened
mental standard based on the Model Penal Code's definition of recklessly.2 The
meaning of the term fiduciary capacity is not clear.
    This Article makes three contributions. First, it compiles and evaluates the
Supreme Court's jurisprudence on      the meaning of fiduciary     capacity in the
bankruptcy setting. The most recent opinion on that term    was issued in 1934 and
provided limited guidance that was obscure and primarily in a negative form.3 Since
the time of that decision, circuit and bankruptcy courts throughout the country have
struggled to apply a consistent framework for determining whether modern legal
relationships amount to a fiduciary    capacity.   The second contribution is the
categorization  of the circuit split into  four separate approaches.      The final
contribution is an assessment of the adequacy of the current judicial approaches and
the proposal of a new framework for determining if a relationship is a fiduciary
capacity for purposes of the exception to discharge. This is done by exploring the
methods used to identify a fiduciary relationship under non-bankruptcy law,
examining the problems with using those methods in a bankruptcy context, and
suggesting the Supreme Court's 2013 opinion on defalcation justifies a rebalancing
of the judicial construction of the statutory terms defalcation and fiduciary
capacity. 4

  * C 2016 Jonathon S. Byington. I am grateful for the insightful comments and suggestions from Pippa
Browde, Michelle Bryan, Larry Howell, Anthony Johnstone, Kristen Juras, Andrew King-Ries, Arthur Laby,
Paul Miller, Samuel Panarella, Irma Russell, D. Gordon Smith, and Julian Velasco. I thank Samir Aarab for
his research. I also thank the American Bankruptcy Institute Law Review editors and staff for their insight
and editing help.
  ** Associate Professor, Alexander Blewett III School of Law at the University of Montana.
  111 U.S.C. § 523(a)(4) (2012).
  2 See Bullock v. BankChampaign, N.A., 133 S. Ct. 1754, 1759 (2013) (We include as intentional not only
conduct that the fiduciary knows is improper but also reckless conduct of the kind that the criminal law often
treats as the equivalent. Thus, we include reckless conduct of the kind set forth in the Model Penal Code.).
  3 See Davis v. Aetna Acceptance Co., 293 U.S. 328, 333 (1934) (providing that a fiduciary capacity cannot
come from a debtor becoming chargeable ex maleficio).
  4 See Bullock, 133 S. Ct. at 1759 61 (construing defalcation to entail intentional or reckless conduct).

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