Regulatory techniques governing the dischargeability of student loan debt in common law systems: Temporal restrictions, hardship‐based limitations and categorical exclusions

Abstract Student loan debt occupies a distinctive and structurally ambiguous position within consumer insolvency law. Although incurred in good faith for socially endorsed purposes, it is subject to significant restrictions on discharge across most common law jurisdictions. This article examines the principal regulatory techniques governing the dischargeability of student loan debt in Canada, the United States and England and Wales through a comparative doctrinal analysis. The study identifies three regulatory approaches: temporal restriction in Canada, deferring discharge for 7 years after cessation of studies, subject to a limited hardship exception; hardship‐based limitation in the United States, under which discharge is presumed unavailable unless the debtor establishes undue hardship under 11 U.S.C. § 523(a)(8); and categorical statutory exclusion in England and Wales, under which government‐sponsored student loan debt is excluded from discharge entirely. The analysis evaluates these techniques against established rationales for exceptions to discharge, being public sanction, protection of vulnerable parties and moral culpability, and finds that all three jurisdictions instead rely principally on fiscal sustainability and repayment integrity. None of the three techniques corresponds to an established rationale for non‐dischargeability. Student loan debt consequently occupies a distinct position within insolvency law, reflecting policy considerations rather than established doctrinal principle. The interaction with income‐contingent repayment regimes further reduces the role of discharge by providing alternative routes to debt resolution, although such mechanisms remain distinct from discharge. The extension of non‐dischargeability to privately issued educational loans in the United States represents the sharpest doctrinal departure, lacking the public‐interest foundation applicable to government‐sponsored student loans.