How Do Case Law and Statute Differ? Lessons from the Evolution of Mortgage Law

47 Pages Posted: 25 Oct 2012 Last revised: 9 Sep 2014

See all articles by Andra C. Ghent

Andra C. Ghent

University of Utah - David Eccles School of Business

Date Written: June 16, 2014

Abstract

This paper traces the history of mortgage law in the US. I explore the history of foreclosure procedures, redemption periods, restrictions on deficiency judgments, and foreclosure moratoria. The historical record shows that the most enduring aspects of mortgage law stem from case law rather than statute. In particular, the ability of creditors to foreclose nonjudicially is determined very early in states’ histories, usually before the US civil war, and usually in case law. In contrast, the aspects of mortgage law developed through statute change more frequently. This finding calls into question whether common law is inherently more flexible than the civil law system used in some other countries. However, case law tends to be less responsive to populist pressures than statute. My findings suggest that the reason common law favors financial development is unlikely to be its greater flexibility relative to law made by statute.

Keywords: Foreclosure Law; Financial History; Common Law; Statute; Civil Law; Creditor Rights

JEL Classification: G18, G21, K11, K28, N20

Suggested Citation

Ghent, Andra C., How Do Case Law and Statute Differ? Lessons from the Evolution of Mortgage Law (June 16, 2014). Available at SSRN: https://ssrn.com/abstract=2166656 or http://dx.doi.org/10.2139/ssrn.2166656

Andra C. Ghent (Contact Author)

University of Utah - David Eccles School of Business ( email )

1645 E Campus Center Dr
Salt Lake City, UT 84112-9303
United States

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