Commissioned for a conference on credit markets at Harvard Business School in February 2010, this paper explores functional system design and the role of lawyers and intermediaries in providing debtor remedies in a complex legal system. The thesis of this paper, which proceeds in the “law and society” tradition, is that the location of a remedial right within the debtor-creditor system substantially affects the costs and benefits of the remedy for debtors, creditors, the system, and society. In other words, merely adding specific substantive provisions does not directly translate into actual protection. Relatedly, policymakers must recognize that lawyers and other intermediaries tend to specialize in particular kinds of debtor remedies to the exclusion of others and profoundly affect the extent to which consumer debtors can actually obtain the relief that formal law offers. Thus, again, system structure and gatekeeper incentives may have a greater impact than the addition or subtraction of substantive remedies.
- Secured Transactions,
- Loss Mitigation,
- Law and Society,
- Local Legal Culture
Available at: http://works.bepress.com/melissa_jacoby/33/