Historical Institutionalism and the Comparative Study of Bankruptcy Law
Since the Great Recession and the Eurozone crisis household debt and consumer bankruptcy have attracted greater research interest. Substantial differences exist between European consumer bankruptcy systems and the US in terms of access criteria, institutional frameworks, financing, and discharge conditions. What explains these differences within Europe and between Europe and the US? Why have distinct institutional frameworks emerged for implementing consumer bankruptcy law in Europe and the US? Explanations have focused on US exceptionalism, legal origins, ‘culture’, and the role of political interest groups.
My paper outlines how insights drawn from the literatures of historical institutionalism on stability and change in policy regimes provides useful concepts for understanding stability and change in consumer bankruptcy law, recognizing the importance of the role of ‘law in action’. The paper illustrates these insights through examples drawn from the development of consumer bankruptcy in the US, England and France. This approach does not provide a causal theory of change. Indeed its recognition of contingency, unintended consequences and path dependency in development suggest challenges for developing such a theory. It may however offer those concerned with policy making a realistic approach to understanding issues such as the likelihood of greater convergence of consumer bankruptcy laws within the EU.