Abstract
This paper traces the history of mortgage law in the United States. 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 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 statutes. My findings suggest that the reason common law favors financial development is unlikely to be its greater flexibility relative to law made by statute.
| Original language | English (US) |
|---|---|
| Pages (from-to) | 1085-1122 |
| Number of pages | 38 |
| Journal | Journal of Law and Economics |
| Volume | 57 |
| Issue number | 4 |
| DOIs | |
| State | Published - Nov 1 2015 |
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ASJC Scopus subject areas
- Law
- Economics and Econometrics
Cite this
How do case law and statute differ? Lessons from the evolution of mortgage law. / Ghent, Andra.
In: Journal of Law and Economics, Vol. 57, No. 4, 01.11.2015, p. 1085-1122.Research output: Contribution to journal › Article
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TY - JOUR
T1 - How do case law and statute differ? Lessons from the evolution of mortgage law
AU - Ghent, Andra
PY - 2015/11/1
Y1 - 2015/11/1
N2 - This paper traces the history of mortgage law in the United States. 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 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 statutes. My findings suggest that the reason common law favors financial development is unlikely to be its greater flexibility relative to law made by statute.
AB - This paper traces the history of mortgage law in the United States. 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 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 statutes. My findings suggest that the reason common law favors financial development is unlikely to be its greater flexibility relative to law made by statute.
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UR - http://www.scopus.com/inward/citedby.url?scp=84932649490&partnerID=8YFLogxK
U2 - 10.1086/680931
DO - 10.1086/680931
M3 - Article
AN - SCOPUS:84932649490
VL - 57
SP - 1085
EP - 1122
JO - Journal of Law and Economics
JF - Journal of Law and Economics
SN - 0022-2186
IS - 4
ER -