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Ohio St. L.J.


This Article is about what malice should mean under bankruptcy law. Malice is used in other areas of law as a sorting function—to identify wrongful acts that are especially grievous. For example, criminal law uses malice to separate murder from manslaughter. The Bankruptcy Code uses malice to perform a similar sorting function. Bankruptcy law discharges or forgives certain kinds of debts. It separates debts that society is willing to forgive from debts that are not forgivable. One way it accomplishes this sorting function is through Section 523(a)(6) of the Bankruptcy Code, which excepts from discharge debts for “willful and malicious injury by the debtor.” The Supreme Court has interpreted the word malicious to require “a wrongful act, done intentionally, without just cause or excuse.” But neither the Supreme Court nor the circuit courts have provided meaningful guidance on the degree of wrongfulness that is required. Because intentionally injuring another is inherently a wrongful act, there should be a difference between a mere willful injury and the required “willful and malicious” injury. In addition, a circuit court split has developed on whether malicious requires intent, and if so, what level of intent. This Article seeks to clarify the meaning of malicious. It explains why courts should stop construing malicious to require intent. It also recommends the definition of malicious be changed to require an “extraordinarily” wrongful act so that malice can accomplish its sorting function.