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The following statements were written by Brendan McGuigan in answer to the question, "What is Case Law?" at wisegeek.com:

"Case law is the body of available writings explaining the verdicts in a case. Case law is most often created by judges in their rulings, when they write their decisions and give the reasoning behind them, as well as citing precedents in other cases and statutes that had a bearing on their decision. A single case may generate virtually no written interpretations or opinions, or, as is the case with many that come before the Supreme Court, it may generate a number of opinions as it works its way through various lower-circuit courts. These collected opinions can be referred to in the future by other judges when they make their rulings on similar cases, allowing the law to remain relatively consistent."

However, a somewhat unpredictable application of "established case law" can occur as Brendan McGuigan also explains:

"In some cases, a judge may intentionally go against established case law in an effort to begin the process of re-examining a precedent and perhaps ultimately changing it. This often happens with precedents in case law that a judge may consider out-dated or irrelevant in the contemporary climate. By issuing a decision that the judge knows will be appealed, he or she pushes the case into higher courts where the old established precedents may be overturned in favor of a new outlook."

Hopefully, one of these "new outlooks" will emerge in the foreclosure arena where existing case law has pretty much, in the past, supported the notion that a foreclosed homeowner who has defaulted on a mortgage note has little or no practical recourse in the courts; even if the foreclosing party didn't have sufficient legal standing to foreclose in the first place (i.e. was not a verified holder in due course of the mortgage and/or mortgage note).

Now that the ugly truth is surfacing about the way that Wall Street made billions of dollars by "insuring" and then "cashing in" on the sub-prime mortgage pools that were destined to default, some judges are to be commended as they opt to stop the process of "going along to get along" and, instead, strive for that "new outlook".

Too bad Congress is afraid to join them. It seems that Congress is resigned to a government "of the banks, by the banks, and for the banks"....

....and not the people.

- Ed Smith