Death and transfiguration: The myth that the U.C.C. killed "property"

Temple Law Review

Volumn 69, Issue 4, 1996, Pages 1281-1340

  Schroeder, Jeanne L ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 10344245134     PISSN: 08998086     EISSN: None     Source Type: Journal    
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References (300)

1. Karl N. Llewellyn, Why a Commercial Code?, 22 TENN. L. REV. 779, 786-87 (1953) [here-inafter Llewellyn, Why a Commercial Code?].
2. Samuel Williston, The Law of Sales in the Proposed Uniform Commercial Code, 63 HARV. L. REV. 561, 570-71 (1950).
3. I present this analysis in Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) [hereinafter Schroeder, Bundle-O-Stix]. I criticize the property theory of Thomas C. Grey (Thomas C. Grey, The Disintegration of Property, XXII 69 NOMOS, PROPERTY (J. Roland Pennock & John W. Chapman eds., 1980)), Wesley Newcomb Hohfeld (WESLEY N. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter W. Cook ed., 1919)), and Kenneth J. Vandeveld (Kenneth J. Vandeveld, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980)) in detail as well as certain aspects of the analysis of a number of other scholars, e.g., JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTTTUTTONALISM: THE MADISONIAN FRAMEWORK AND ITS LEGACY (1990); David Frisch, Remedies as Property: A Different Perspective on Specific Performance Clauses, 35 WM. & MARY L. REV. 1691 (1994).
4. I present this analysis in Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) [hereinafter Schroeder, Bundle-O-Stix]. I criticize the property theory of Thomas C. Grey (Thomas C. Grey, The Disintegration of Property, XXII 69 NOMOS, PROPERTY (J. Roland Pennock & John W. Chapman eds., 1980)), Wesley Newcomb Hohfeld (WESLEY N. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter W. Cook ed., 1919)), and Kenneth J. Vandeveld (Kenneth J. Vandeveld, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980)) in detail as well as certain aspects of the analysis of a number of other scholars, e.g., JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTTTUTTONALISM: THE MADISONIAN FRAMEWORK AND ITS LEGACY (1990); David Frisch, Remedies as Property: A Different Perspective on Specific Performance Clauses, 35 WM. & MARY L. REV. 1691 (1994).
5. I present this analysis in Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) [hereinafter Schroeder, Bundle-O-Stix]. I criticize the property theory of Thomas C. Grey (Thomas C. Grey, The Disintegration of Property, XXII 69 NOMOS, PROPERTY (J. Roland Pennock & John W. Chapman eds., 1980)), Wesley Newcomb Hohfeld (WESLEY N. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter W. Cook ed., 1919)), and Kenneth J. Vandeveld (Kenneth J. Vandeveld, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980)) in detail as well as certain aspects of the analysis of a number of other scholars, e.g., JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTTTUTTONALISM: THE MADISONIAN FRAMEWORK AND ITS LEGACY (1990); David Frisch, Remedies as Property: A Different Perspective on Specific Performance Clauses, 35 WM. & MARY L. REV. 1691 (1994).
6. I present this analysis in Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) [hereinafter Schroeder, Bundle-O-Stix]. I criticize the property theory of Thomas C. Grey (Thomas C. Grey, The Disintegration of Property, XXII 69 NOMOS, PROPERTY (J. Roland Pennock & John W. Chapman eds., 1980)), Wesley Newcomb Hohfeld (WESLEY N. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter W. Cook ed., 1919)), and Kenneth J. Vandeveld (Kenneth J. Vandeveld, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980)) in detail as well as certain aspects of the analysis of a number of other scholars, e.g., JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTTTUTTONALISM: THE MADISONIAN FRAMEWORK AND ITS LEGACY (1990); David Frisch, Remedies as Property: A Different Perspective on Specific Performance Clauses, 35 WM. & MARY L. REV. 1691 (1994).
7. I present this analysis in Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) [hereinafter Schroeder, Bundle-O-Stix]. I criticize the property theory of Thomas C. Grey (Thomas C. Grey, The Disintegration of Property, XXII 69 NOMOS, PROPERTY (J. Roland Pennock & John W. Chapman eds., 1980)), Wesley Newcomb Hohfeld (WESLEY N. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter W. Cook ed., 1919)), and Kenneth J. Vandeveld (Kenneth J. Vandeveld, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980)) in detail as well as certain aspects of the analysis of a number of other scholars, e.g., JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTTTUTTONALISM: THE MADISONIAN FRAMEWORK AND ITS LEGACY (1990); David Frisch, Remedies as Property: A Different Perspective on Specific Performance Clauses, 35 WM. & MARY L. REV. 1691 (1994).
8. I present this analysis in Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) [hereinafter Schroeder, Bundle-O-Stix]. I criticize the property theory of Thomas C. Grey (Thomas C. Grey, The Disintegration of Property, XXII 69 NOMOS, PROPERTY (J. Roland Pennock & John W. Chapman eds., 1980)), Wesley Newcomb Hohfeld (WESLEY N. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter W. Cook ed., 1919)), and Kenneth J. Vandeveld (Kenneth J. Vandeveld, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980)) in detail as well as certain aspects of the analysis of a number of other scholars, e.g., JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTTTUTTONALISM: THE MADISONIAN FRAMEWORK AND ITS LEGACY (1990); David Frisch, Remedies as Property: A Different Perspective on Specific Performance Clauses, 35 WM. & MARY L. REV. 1691 (1994).
9. See, e.g., Grey, supra note 3, at 74-75; Vandeveld, supra note 3, at 362.
10. See, e.g., Grey, supra note 3, at 85 n. 40; Vandeveld, supra note 3, at 330.
11. As Joseph Singer has shown in his excellent study of Hohfeld, Hohfeld was by no means novel in trying to analyze law by breaking down broad categories or molecules of law into their smaller, essential atomic parts - such as rights, privileges, liabilities, etc. Rather, the development of an appropriate periodic table of jural elements was an established jurisprudential task at the time Hohfeld was writing. See Joseph W. Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975. Hohfeld is justly remembered because his system was the most elegant and successful. As such, I suggest that the reason why Hohfeld seems to represent a nodal point in American jurisprudence is less because he anticipated the trend of twentieth century theory than because he represents a closure of nineteenth century theory.
12. HOHFELD, supra note 3, at 74-75. See infra text accompanying notes 14-20 for a discussion of Hohfeld's theory of property. I develop my critique of Hohfeldian property theory at detail in Schroeder, Bundle-O-Stix, supra note 3; Jeanne L. Schroeder, Virgin Territory: Margaret Rodin's Imagery of Property as the Inviolate Feminine Body, 79 MINN. L. REV. 55 (1994) [hereinafter Schroeder, Virgin Territory].
13. HOHFELD, supra note 3, at 74-75. See infra text accompanying notes 14-20 for a discussion of Hohfeld's theory of property. I develop my critique of Hohfeldian property theory at detail in Schroeder, Bundle-O-Stix, supra note 3; Jeanne L. Schroeder, Virgin Territory: Margaret Rodin's Imagery of Property as the Inviolate Feminine Body, 79 MINN. L. REV. 55 (1994) [hereinafter Schroeder, Virgin Territory].
14. Frisch, supra note 3, at 1702; Grey, supra note 3, at 73; Vandeveld, supra note 3, at 328-31.
15. HOMER, THE ODYSSEY OF HOMER 296-97 (Richmond Lattiraore trans., 1965).
16. See, e.g., Karl N. Llewellyn, Some Realism About Realism - Responding to Dean Pound, 43 HARV. L. REV. 1222 (1932) [hereinafter Llewellyn, Realism].
17. In an introduction to a recent law review volume dedicated to property, Alan Brudner has similarly chastised contemporary legal scholars from continuing to predict the imminent death of property despite empirical evidence of its health. So far from reflecting on the nature of property in light of 1989, many of the contributors have attempted to reveal a conceptual dynamic in private property that moves in a direction diametrically opposed to the momentum revealed in history. At a time when publicly-owned enterprises and resources are being massively transformed into private property; at a time when socialist law is being overthrown in favour of the legal categories of private law, our theorists disclose the inherent instability, indeed the conceptual impossibility, of private property. Alan Brudner, Editor's Introduction, 6 CAN. J.L. & JURIS. 183, 183 (1993).
18. There is recent evidence that aerodynamics may finally be capitulating to the bees. See, e.g., Warren E. Leary, Aerodynamic Secrets of Insect Flight, N. Y. TIMES, Dec. 24, 1996, at Cl.
19. See infra notes 15-20 and accompanying text.
20. Indeed, his book of essays, Jurisprudence: Realism in Theory and Practice, contains an encomium to Hohfeld which Llewellyn originally penned upon Hohfeld's death when Llewellyn was still a student at Yale Law School. KARL N. LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 491-95 (1962).
21. HOHFELD, supra note 3, at 74-75.
22. Id. See also Grey, supra note 3, at 70.
23. I discuss Hohfeld's analysis extensively in Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Hohfeld's non sequitur seems to have sprung in large part from his misunderstanding that the concept of "object" or res necessarily implied a physical or tangible "thing." Application of property concepts to intangibles, therefore, seemed to require a mystifying and misleading reification. Duncan Kennedy also makes this mistake by assuming that "somethings" are naturally "things," and "other things" are unnaturally reified into things. Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205, 355 (1970). For a similar confusion as to the nature of reification, see Donald J. Gjerdingen, The Coase Theorem and the Psychology of Common Law Thought, 56 S. CAL. L. REV. 711, 718-19 (1983). Hohfeld, and his followers to whom I refer, failed to recognize that the philosophic and jurisprudential concept of the "object" refers to anything which is treated as other than the subject. See GEORG W.F. HEGEL, HEGEL'S SCIENCE OF LOGIC 83 (A.V. Miller trans., 1969) (1812) ("Nothing is usually opposed to something; but the being of something is already determinate and is distinguished from another something ..."). As subjectivity is a legal construct, or, more accurately, as subjectivity and law/language are mutually constituting, the subject-object distinction is not a natural, physicalist one, but an artificial, legal one. In other words, we may have "natural" relations with physical objects, but these relations are not property relations. See infra text accompanying notes 196-206. In the terminology I adopt throughout this Article, property is not Real or pre-legal, but Symbolic. We do not "reify" intangibles, in the sense of treating that which is not "naturally" a thing as a thing. Rather, the very concept of what is or is not a "thing" is itself artificial - a matter of legal characterization or definition. Or to reverse it, when we say that food, shelter, a cow, a car, or any other tangible is my property we are thereby "reifying" it in the sense of treating it as a res every bit as much as when we reify intangibles.
24. I discuss Hohfeld's analysis extensively in Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Hohfeld's non sequitur seems to have sprung in large part from his misunderstanding that the concept of "object" or res necessarily implied a physical or tangible "thing." Application of property concepts to intangibles, therefore, seemed to require a mystifying and misleading reification. Duncan Kennedy also makes this mistake by assuming that "somethings" are naturally "things," and "other things" are unnaturally reified into things. Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205, 355 (1970). For a similar confusion as to the nature of reification, see Donald J. Gjerdingen, The Coase Theorem and the Psychology of Common Law Thought, 56 S. CAL. L. REV. 711, 718-19 (1983). Hohfeld, and his followers to whom I refer, failed to recognize that the philosophic and jurisprudential concept of the "object" refers to anything which is treated as other than the subject. See GEORG W.F. HEGEL, HEGEL'S SCIENCE OF LOGIC 83 (A.V. Miller trans., 1969) (1812) ("Nothing is usually opposed to something; but the being of something is already determinate and is distinguished from another something ..."). As subjectivity is a legal construct, or, more accurately, as subjectivity and law/language are mutually constituting, the subject-object distinction is not a natural, physicalist one, but an artificial, legal one. In other words, we may have "natural" relations with physical objects, but these relations are not property relations. See infra text accompanying notes 196-206. In the terminology I adopt throughout this Article, property is not Real or pre-legal, but Symbolic. We do not "reify" intangibles, in the sense of treating that which is not "naturally" a thing as a thing. Rather, the very concept of what is or is not a "thing" is itself artificial - a matter of legal characterization or definition. Or to reverse it, when we say that food, shelter, a cow, a car, or any other tangible is my property we are thereby "reifying" it in the sense of treating it as a res every bit as much as when we reify intangibles.
25. I discuss Hohfeld's analysis extensively in Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Hohfeld's non sequitur seems to have sprung in large part from his misunderstanding that the concept of "object" or res necessarily implied a physical or tangible "thing." Application of property concepts to intangibles, therefore, seemed to require a mystifying and misleading reification. Duncan Kennedy also makes this mistake by assuming that "somethings" are naturally "things," and "other things" are unnaturally reified into things. Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205, 355 (1970). For a similar confusion as to the nature of reification, see Donald J. Gjerdingen, The Coase Theorem and the Psychology of Common Law Thought, 56 S. CAL. L. REV. 711, 718-19 (1983). Hohfeld, and his followers to whom I refer, failed to recognize that the philosophic and jurisprudential concept of the "object" refers to anything which is treated as other than the subject. See GEORG W.F. HEGEL, HEGEL'S SCIENCE OF LOGIC 83 (A.V. Miller trans., 1969) (1812) ("Nothing is usually opposed to something; but the being of something is already determinate and is distinguished from another something ..."). As subjectivity is a legal construct, or, more accurately, as subjectivity and law/language are mutually constituting, the subject-object distinction is not a natural, physicalist one, but an artificial, legal one. In other words, we may have "natural" relations with physical objects, but these relations are not property relations. See infra text accompanying notes 196-206. In the terminology I adopt throughout this Article, property is not Real or pre-legal, but Symbolic. We do not "reify" intangibles, in the sense of treating that which is not "naturally" a thing as a thing. Rather, the very concept of what is or is not a "thing" is itself artificial - a matter of legal characterization or definition. Or to reverse it, when we say that food, shelter, a cow, a car, or any other tangible is my property we are thereby "reifying" it in the sense of treating it as a res every bit as much as when we reify intangibles.
26. I discuss Hohfeld's analysis extensively in Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Hohfeld's non sequitur seems to have sprung in large part from his misunderstanding that the concept of "object" or res necessarily implied a physical or tangible "thing." Application of property concepts to intangibles, therefore, seemed to require a mystifying and misleading reification. Duncan Kennedy also makes this mistake by assuming that "somethings" are naturally "things," and "other things" are unnaturally reified into things. Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205, 355 (1970). For a similar confusion as to the nature of reification, see Donald J. Gjerdingen, The Coase Theorem and the Psychology of Common Law Thought, 56 S. CAL. L. REV. 711, 718-19 (1983). Hohfeld, and his followers to whom I refer, failed to recognize that the philosophic and jurisprudential concept of the "object" refers to anything which is treated as other than the subject. See GEORG W.F. HEGEL, HEGEL'S SCIENCE OF LOGIC 83 (A.V. Miller trans., 1969) (1812) ("Nothing is usually opposed to something; but the being of something is already determinate and is distinguished from another something ..."). As subjectivity is a legal construct, or, more accurately, as subjectivity and law/language are mutually constituting, the subject-object distinction is not a natural, physicalist one, but an artificial, legal one. In other words, we may have "natural" relations with physical objects, but these relations are not property relations. See infra text accompanying notes 196-206. In the terminology I adopt throughout this Article, property is not Real or pre-legal, but Symbolic. We do not "reify" intangibles, in the sense of treating that which is not "naturally" a thing as a thing. Rather, the very concept of what is or is not a "thing" is itself artificial - a matter of legal characterization or definition. Or to reverse it, when we say that food, shelter, a cow, a car, or any other tangible is my property we are thereby "reifying" it in the sense of treating it as a res every bit as much as when we reify intangibles.
27. I discuss Hohfeld's analysis extensively in Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Hohfeld's non sequitur seems to have sprung in large part from his misunderstanding that the concept of "object" or res necessarily implied a physical or tangible "thing." Application of property concepts to intangibles, therefore, seemed to require a mystifying and misleading reification. Duncan Kennedy also makes this mistake by assuming that "somethings" are naturally "things," and "other things" are unnaturally reified into things. Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205, 355 (1970). For a similar confusion as to the nature of reification, see Donald J. Gjerdingen, The Coase Theorem and the Psychology of Common Law Thought, 56 S. CAL. L. REV. 711, 718-19 (1983). Hohfeld, and his followers to whom I refer, failed to recognize that the philosophic and jurisprudential concept of the "object" refers to anything which is treated as other than the subject. See GEORG W.F. HEGEL, HEGEL'S SCIENCE OF LOGIC 83 (A.V. Miller trans., 1969) (1812) ("Nothing is usually opposed to something; but the being of something is already determinate and is distinguished from another something ..."). As subjectivity is a legal construct, or, more accurately, as subjectivity and law/language are mutually constituting, the subject-object distinction is not a natural, physicalist one, but an artificial, legal one. In other words, we may have "natural" relations with physical objects, but these relations are not property relations. See infra text accompanying notes 196-206. In the terminology I adopt throughout this Article, property is not Real or pre-legal, but Symbolic. We do not "reify" intangibles, in the sense of treating that which is not "naturally" a thing as a thing. Rather, the very concept of what is or is not a "thing" is itself artificial - a matter of legal characterization or definition. Or to reverse it, when we say that food, shelter, a cow, a car, or any other tangible is my property we are thereby "reifying" it in the sense of treating it as a res every bit as much as when we reify intangibles.
28. HOHFELD, supra note 3, at 75, 78, 85. Grey and Vandeveld follow in Hohfeld's erroneous footsteps. See Grey, supra note 3, at 70; Vandeveld, supra note 3, at 332, 360.
29. Hohfeld proposed that the traditional terminology be replaced with his newly coined dichotomy between paucital (enforceable against one or a few identifiable persons) and multital (enforceable against the world generally) rights. HOHFELD, supra note 3, at 74-75. See also Schroeder, Virgin Territory, supra note 7, at 70 & nn. 57-58 (discussing Hohfeld's idiosyncratic terminology which remains unassimilated into today's legal practice).
30. See, e.g., Grey, supra note 3, at 81.
31. See infra text accompanying notes 43-46.
32. I rescue Blackstone from the calumnies of modern legal academics who have not bothered to read him. See Schroeder, Bundle-O-Stix, supra note 3, at 277-305.
33. The allegation that Blackstone thought that property was a relationship between a subject and an object is based on a careless reading of his definition of property. According to Blackstone, property is "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." WILLIAM BLACKSTONE, 2 COMMENTARIES ON THE LAWS OF ENGLAND 2 (A.W. Brian Simpson ed., 1979) (emphasis added). Writers such as Frisch, see supra note 3, at 1702, and Vandeveld, see supra note 3, at 331, inaccurately read this definition as though it did not contain the italicized words. Read as a whole, however, Blackstone's definition includes precisely Hohfeld's definition of in rem rights as rights of one person claimed against the world generally. Blackstone's definition is superior to Hohfeld's in that it reflects the fact that under our jurisprudential and economic systems, we distinguish between generally enforceable claims which relate to the right to possess, enjoy and alienate objects (i.e., what Blackstone calls dominion over external things) and other types of generally enforceable claims.
34. One of the minimal requirements of the creation and enforceability (i.e., attachment) of a security interest is that the debtor has "rights in the collateral." U.C.C. § 9-203(1)(c).
35. Jeanne L. Schroeder, The Vestal and the Fasces: The Feminine and Property in Psychoanalysis and Law, 16 CARDOZO L. REV. 805 (1995) [hereinafter Schroeder, The Vestal and the Fasces]; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3.
36. Jeanne L. Schroeder, The Vestal and the Fasces: The Feminine and Property in Psychoanalysis and Law, 16 CARDOZO L. REV. 805 (1995) [hereinafter Schroeder, The Vestal and the Fasces]; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3.
37. JACQUES LACAN, ECRITS: A SELECTION (Alan Sheridan trans., 1977) (1966). See Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; and Schroeder, Bundle-O-Stix, supra note 3, for discussions of the interrelationship between Lacan's psychoanalytic theories and property.
38. JACQUES LACAN, ECRITS: A SELECTION (Alan Sheridan trans., 1977) (1966). See Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; and Schroeder, Bundle-O-Stix, supra note 3, for discussions of the interrelationship between Lacan's psychoanalytic theories and property.
39. JACQUES LACAN, ECRITS: A SELECTION (Alan Sheridan trans., 1977) (1966). See Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; and Schroeder, Bundle-O-Stix, supra note 3, for discussions of the interrelationship between Lacan's psychoanalytic theories and property.
40. JACQUES LACAN, ECRITS: A SELECTION (Alan Sheridan trans., 1977) (1966). See Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; and Schroeder, Bundle-O-Stix, supra note 3, for discussions of the interrelationship between Lacan's psychoanalytic theories and property.
41. JEANNE L. SCHROEDER, THE VESTAL AND THE FASCES: HEGEL, LACAN, PROPERTY AND THE FEMININE (forthcoming); Schroeder, The Vestal and the Fasces, supra note 25, at 829-30, 833-35, 873-81.
42. JEANNE L. SCHROEDER, THE VESTAL AND THE FASCES: HEGEL, LACAN, PROPERTY AND THE FEMININE (forthcoming); Schroeder, The Vestal and the Fasces, supra note 25, at 829-30, 833-35, 873-81.
43. The Real is not the same as external reality. Lacan, of course, does not deny the existence of external reality but recognizes that human beings, as speaking subjects, never experience direct unmediated relations with external reality. That is, as an animal I may have an unmediated relation to reality when I eat and digest my food, but the second I am aware that I am eating and digesting, or even feel enjoyment of the experience, I am a human interpreting the experience. This is very similar to the distinction which Charles Peirce made between the concepts of firstness (essence) and secondness (distinction). Peirce described the experience of firstness as follows: Imagine me to make and in a slumberous condition to have a vague, unobjectified, still Jess unsubjectified, sense of redness, or of salt taste, or of an ache, or of grief or joy, or of a prolonged musical note. That would be, as nearly as possible, a purely monadic state of feeling. CHARLES S. PEIRCE, COLLECTED PAPERS, VOL. I, PRINCIPLES OF PHILOSOPHY ¶ 303, 149 (Ernst Hartshorne & Paul Weiss eds., 1931). But, as soon as one becomes conscious that one is tasting something, firstness is gone, since the awareness is a mediation. There is no longer one thing, the pure essence of the taste; there are two: the taste and the taster. You no longer have an unmediated experience of the quality of taste, but a mediated or interpretive experience. You can speculate that a few seconds before, you might have had an immediate, purely physical, experience, but you can never know this directly. Peirce refers to the immediate category of quality as "firstness," the sense of separateness as "secondness," and mediation as "thirdness." CHARLES S. PEIRCE: SELECTED WRITINGS 150-51 (Philip P. Wiener ed., 1958) (1891).
44. The Real is not the same as external reality. Lacan, of course, does not deny the existence of external reality but recognizes that human beings, as speaking subjects, never experience direct unmediated relations with external reality. That is, as an animal I may have an unmediated relation to reality when I eat and digest my food, but the second I am aware that I am eating and digesting, or even feel enjoyment of the experience, I am a human interpreting the experience. This is very similar to the distinction which Charles Peirce made between the concepts of firstness (essence) and secondness (distinction). Peirce described the experience of firstness as follows: Imagine me to make and in a slumberous condition to have a vague, unobjectified, still Jess unsubjectified, sense of redness, or of salt taste, or of an ache, or of grief or joy, or of a prolonged musical note. That would be, as nearly as possible, a purely monadic state of feeling. CHARLES S. PEIRCE, COLLECTED PAPERS, VOL. I, PRINCIPLES OF PHILOSOPHY ¶ 303, 149 (Ernst Hartshorne & Paul Weiss eds., 1931). But, as soon as one becomes conscious that one is tasting something, firstness is gone, since the awareness is a mediation. There is no longer one thing, the pure essence of the taste; there are two: the taste and the taster. You no longer have an unmediated experience of the quality of taste, but a mediated or interpretive experience. You can speculate that a few seconds before, you might have had an immediate, purely physical, experience, but you can never know this directly. Peirce refers to the immediate category of quality as "firstness," the sense of separateness as "secondness," and mediation as "thirdness." CHARLES S. PEIRCE: SELECTED WRITINGS 150-51 (Philip P. Wiener ed., 1958) (1891).
45. See SCHROEDER, supra note 27; Schroeder, The Vestal and the Fasces, supra note 25, at 829-30, 833-35, 873-81.
46. Schroeder, The Vestal and the Fasces, supra note 25, at 829-30, 845-51.
47. Id. at 829-30, 873-74.
48. Schroeder, Bundle-O-Stix, supra note 3, at 246-55.
49. Id. at 273-75, 290-95, 299-300.
50. See, e.g., JACQUES LACAN, SPEECH AND LANGUAGE IN PSCHOANALYSIS 3-4 (Anthony Wilden trans., 1968) (1956). Lacan's orders are overlapping, not mutually exclusive. Each order necessarily requires the other two and the same object can simultaneously perform functions in the different orders. As explained by Renata Salecl, [f]or Lacan the concept of need [i.e., the category of longing associated with the Real] is linked to natural or biological requirements of human beings (food, for example). But for human beings it is essential that these needs are never manifest as purely natural needs. Needs are always defined by a symbolic context: if we are hungry, for example, we do not simply grab the first available food, but rather we think about what we shall eat and then prepare food in a special way. RENATA SALECL, THE SPOILS OF FREEDOM: PSYCHOANALYSIS AND FEMINISM AFTER THE FALL OF SOCIALISM 124 (1994).
51. See, e.g., JACQUES LACAN, SPEECH AND LANGUAGE IN PSCHOANALYSIS 3-4 (Anthony Wilden trans., 1968) (1956). Lacan's orders are overlapping, not mutually exclusive. Each order necessarily requires the other two and the same object can simultaneously perform functions in the different orders. As explained by Renata Salecl, [f]or Lacan the concept of need [i.e., the category of longing associated with the Real] is linked to natural or biological requirements of human beings (food, for example). But for human beings it is essential that these needs are never manifest as purely natural needs. Needs are always defined by a symbolic context: if we are hungry, for example, we do not simply grab the first available food, but rather we think about what we shall eat and then prepare food in a special way. RENATA SALECL, THE SPOILS OF FREEDOM: PSYCHOANALYSIS AND FEMINISM AFTER THE FALL OF SOCIALISM 124 (1994).
52. Schroeder, Bundle-O-Stix, supra note 3, at 242-44, 271-75, 299-300.
53. It is common for modern legal theorists to divide property into any number of constituent rights. See, e.g., Lawrence C. Becker, The Moral Basis of Property Rights, in XXII NOMOS: PROPERTY 187, 190-91 (J. Roland Pennock & John W. Chapman eds., 1980) (dividing property into 13 different elements). It is the fact that not all relations which we traditionally recognize as property contain each of these detailed rights which leads many analysts to argue that property is a more or less random collection of rights. This is reflected in the familiar physical (and phallic) metaphor of property as a bundle of sticks. This approach confuses a definition of property with a description of empirical examples of property. A Hegelian approach, in contradistinction, bases the definition of property on the philosophical functions which it can serve. Property, to Hegel, is a logical moment in the development of personality. To perform this function, property requires the three elements of possession, enjoyment, and alienation understood in the broadest and most abstract way. See Alan Brudner, The Unity of Property Law, 4 CANADIAN J.L. & JURIS. 2, 23-37 (1991); Schroeder, Virgin Territory, supra note 7, at 135-39. The various elements of property identified by theorists such as Honore are, to a Hegelian, merely specific concrete manifestations of these abstract principles. See I.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 756-58 (1996). For example, the rights to sell, give, pledge, and devise are specific examples of the general concept of alienability. The rights to consume and collect are examples of enjoyment, etc. Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7; Jeanne L. Schroeder, Some Realism About Legal Surrealism, 37 WM. & MARY L. REV. 455, 512-33 (1996) [hereinafter Schroeder, Legal Surrealism].
54. It is common for modern legal theorists to divide property into any number of constituent rights. See, e.g., Lawrence C. Becker, The Moral Basis of Property Rights, in XXII NOMOS: PROPERTY 187, 190-91 (J. Roland Pennock & John W. Chapman eds., 1980) (dividing property into 13 different elements). It is the fact that not all relations which we traditionally recognize as property contain each of these detailed rights which leads many analysts to argue that property is a more or less random collection of rights. This is reflected in the familiar physical (and phallic) metaphor of property as a bundle of sticks. This approach confuses a definition of property with a description of empirical examples of property. A Hegelian approach, in contradistinction, bases the definition of property on the philosophical functions which it can serve. Property, to Hegel, is a logical moment in the development of personality. To perform this function, property requires the three elements of possession, enjoyment, and alienation understood in the broadest and most abstract way. See Alan Brudner, The Unity of Property Law, 4 CANADIAN J.L. & JURIS. 2, 23-37 (1991); Schroeder, Virgin Territory, supra note 7, at 135-39. The various elements of property identified by theorists such as Honore are, to a Hegelian, merely specific concrete manifestations of these abstract principles. See I.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 756-58 (1996). For example, the rights to sell, give, pledge, and devise are specific examples of the general concept of alienability. The rights to consume and collect are examples of enjoyment, etc. Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7; Jeanne L. Schroeder, Some Realism About Legal Surrealism, 37 WM. & MARY L. REV. 455, 512-33 (1996) [hereinafter Schroeder, Legal Surrealism].
55. It is common for modern legal theorists to divide property into any number of constituent rights. See, e.g., Lawrence C. Becker, The Moral Basis of Property Rights, in XXII NOMOS: PROPERTY 187, 190-91 (J. Roland Pennock & John W. Chapman eds., 1980) (dividing property into 13 different elements). It is the fact that not all relations which we traditionally recognize as property contain each of these detailed rights which leads many analysts to argue that property is a more or less random collection of rights. This is reflected in the familiar physical (and phallic) metaphor of property as a bundle of sticks. This approach confuses a definition of property with a description of empirical examples of property. A Hegelian approach, in contradistinction, bases the definition of property on the philosophical functions which it can serve. Property, to Hegel, is a logical moment in the development of personality. To perform this function, property requires the three elements of possession, enjoyment, and alienation understood in the broadest and most abstract way. See Alan Brudner, The Unity of Property Law, 4 CANADIAN J.L. & JURIS. 2, 23-37 (1991); Schroeder, Virgin Territory, supra note 7, at 135-39. The various elements of property identified by theorists such as Honore are, to a Hegelian, merely specific concrete manifestations of these abstract principles. See I.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 756-58 (1996). For example, the rights to sell, give, pledge, and devise are specific examples of the general concept of alienability. The rights to consume and collect are examples of enjoyment, etc. Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7; Jeanne L. Schroeder, Some Realism About Legal Surrealism, 37 WM. & MARY L. REV. 455, 512-33 (1996) [hereinafter Schroeder, Legal Surrealism].
56. It is common for modern legal theorists to divide property into any number of constituent rights. See, e.g., Lawrence C. Becker, The Moral Basis of Property Rights, in XXII NOMOS: PROPERTY 187, 190-91 (J. Roland Pennock & John W. Chapman eds., 1980) (dividing property into 13 different elements). It is the fact that not all relations which we traditionally recognize as property contain each of these detailed rights which leads many analysts to argue that property is a more or less random collection of rights. This is reflected in the familiar physical (and phallic) metaphor of property as a bundle of sticks. This approach confuses a definition of property with a description of empirical examples of property. A Hegelian approach, in contradistinction, bases the definition of property on the philosophical functions which it can serve. Property, to Hegel, is a logical moment in the development of personality. To perform this function, property requires the three elements of possession, enjoyment, and alienation understood in the broadest and most abstract way. See Alan Brudner, The Unity of Property Law, 4 CANADIAN J.L. & JURIS. 2, 23-37 (1991); Schroeder, Virgin Territory, supra note 7, at 135-39. The various elements of property identified by theorists such as Honore are, to a Hegelian, merely specific concrete manifestations of these abstract principles. See I.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 756-58 (1996). For example, the rights to sell, give, pledge, and devise are specific examples of the general concept of alienability. The rights to consume and collect are examples of enjoyment, etc. Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7; Jeanne L. Schroeder, Some Realism About Legal Surrealism, 37 WM. & MARY L. REV. 455, 512-33 (1996) [hereinafter Schroeder, Legal Surrealism].
57. It is common for modern legal theorists to divide property into any number of constituent rights. See, e.g., Lawrence C. Becker, The Moral Basis of Property Rights, in XXII NOMOS: PROPERTY 187, 190-91 (J. Roland Pennock & John W. Chapman eds., 1980) (dividing property into 13 different elements). It is the fact that not all relations which we traditionally recognize as property contain each of these detailed rights which leads many analysts to argue that property is a more or less random collection of rights. This is reflected in the familiar physical (and phallic) metaphor of property as a bundle of sticks. This approach confuses a definition of property with a description of empirical examples of property. A Hegelian approach, in contradistinction, bases the definition of property on the philosophical functions which it can serve. Property, to Hegel, is a logical moment in the development of personality. To perform this function, property requires the three elements of possession, enjoyment, and alienation understood in the broadest and most abstract way. See Alan Brudner, The Unity of Property Law, 4 CANADIAN J.L. & JURIS. 2, 23-37 (1991); Schroeder, Virgin Territory, supra note 7, at 135-39. The various elements of property identified by theorists such as Honore are, to a Hegelian, merely specific concrete manifestations of these abstract principles. See I.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 756-58 (1996). For example, the rights to sell, give, pledge, and devise are specific examples of the general concept of alienability. The rights to consume and collect are examples of enjoyment, etc. Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7; Jeanne L. Schroeder, Some Realism About Legal Surrealism, 37 WM. & MARY L. REV. 455, 512-33 (1996) [hereinafter Schroeder, Legal Surrealism].
58. It is common for modern legal theorists to divide property into any number of constituent rights. See, e.g., Lawrence C. Becker, The Moral Basis of Property Rights, in XXII NOMOS: PROPERTY 187, 190-91 (J. Roland Pennock & John W. Chapman eds., 1980) (dividing property into 13 different elements). It is the fact that not all relations which we traditionally recognize as property contain each of these detailed rights which leads many analysts to argue that property is a more or less random collection of rights. This is reflected in the familiar physical (and phallic) metaphor of property as a bundle of sticks. This approach confuses a definition of property with a description of empirical examples of property. A Hegelian approach, in contradistinction, bases the definition of property on the philosophical functions which it can serve. Property, to Hegel, is a logical moment in the development of personality. To perform this function, property requires the three elements of possession, enjoyment, and alienation understood in the broadest and most abstract way. See Alan Brudner, The Unity of Property Law, 4 CANADIAN J.L. & JURIS. 2, 23-37 (1991); Schroeder, Virgin Territory, supra note 7, at 135-39. The various elements of property identified by theorists such as Honore are, to a Hegelian, merely specific concrete manifestations of these abstract principles. See I.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 756-58 (1996). For example, the rights to sell, give, pledge, and devise are specific examples of the general concept of alienability. The rights to consume and collect are examples of enjoyment, etc. Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7; Jeanne L. Schroeder, Some Realism About Legal Surrealism, 37 WM. & MARY L. REV. 455, 512-33 (1996) [hereinafter Schroeder, Legal Surrealism].
59. It is common for modern legal theorists to divide property into any number of constituent rights. See, e.g., Lawrence C. Becker, The Moral Basis of Property Rights, in XXII NOMOS: PROPERTY 187, 190-91 (J. Roland Pennock & John W. Chapman eds., 1980) (dividing property into 13 different elements). It is the fact that not all relations which we traditionally recognize as property contain each of these detailed rights which leads many analysts to argue that property is a more or less random collection of rights. This is reflected in the familiar physical (and phallic) metaphor of property as a bundle of sticks. This approach confuses a definition of property with a description of empirical examples of property. A Hegelian approach, in contradistinction, bases the definition of property on the philosophical functions which it can serve. Property, to Hegel, is a logical moment in the development of personality. To perform this function, property requires the three elements of possession, enjoyment, and alienation understood in the broadest and most abstract way. See Alan Brudner, The Unity of Property Law, 4 CANADIAN J.L. & JURIS. 2, 23-37 (1991); Schroeder, Virgin Territory, supra note 7, at 135-39. The various elements of property identified by theorists such as Honore are, to a Hegelian, merely specific concrete manifestations of these abstract principles. See I.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 756-58 (1996). For example, the rights to sell, give, pledge, and devise are specific examples of the general concept of alienability. The rights to consume and collect are examples of enjoyment, etc. Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7; Jeanne L. Schroeder, Some Realism About Legal Surrealism, 37 WM. & MARY L. REV. 455, 512-33 (1996) [hereinafter Schroeder, Legal Surrealism].
60. I have introduced this concept briefly in Schroeder, Bundle-O-Stix, supra note 3, and develop it further in SCHROEDER, supra note 27.
61. This is the primary thesis of SCHROEDER, supra note 27, and Schroeder, The Vestal and the Fasces, supra note 25.
62. U.C.C. § 2-401. Unless expressly indicated to the contrary, in this Article all statutory references are to the official text of the Uniform Commercial Code as in effect on January 1, 1996.
63. The structure of the U.C.C. favors freedom of contract in that, unless stated otherwise, most terms are "default" provisions which apply absent contractual terms to the contrary. For example, section 1-102 contains the following: (3) The effect of provisions of this Act may be varied by agreement, except as otherwise provided in this Act and except that the obligations of good faith, diligence, reasonableness and care prescribed by this Act may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable. (4) The presence in certain provisions of this Act of the words "unless otherwise agreed" or words of similar import does not imply that the effect of other provisions may not be varied by agreement under subsection (3). U.C.C. § 1-102. To oversimplify it, those provisions which deal with purely contractual matters between two persons tend to be subject to greater contractual variation than those provisions which deal with property rights which necessarily affect non-contracting third parties. There are numerous exceptions to these general rules, however, to reflect formal requirements (such as the minimum requisites of contract formation or of attachment and perfection of security interests) as well as ethical or paternalistic concerns.
64. Id. § 2-401. As I discuss infra Part III, this provision corresponds to parallel provisions in Articles 1 and 9.
65. The misogynist imagery is intentional. As I have argued extensively elsewhere, property, in the philosophy of Georg F.W. Hegel, serves a function, in the development of legal subjectivity, which is parallel to the function identified by Jacques Lacan to the phallic woman in the development of psychoanalytical subjectivity. See SCHROEDER, supra note 27; Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Psychoanalytically and anthropologically, the female body is the primal commodity of trade. See, e.g., JANE GALLOP, THINKING THROUGH THE BODY 33-34 (1988) (discussing how in "oedipal moment" boys must abandon "possessing" their mothers to gain identification with their fathers); CLAUDE LÉVI-STRAUSS, THE RAW AND THE COOKED: INTRODUCTION TO A SCIENCE OF MYTHOLOGY, VOL. 1 (John & Doreen Weightman trans., Univ. of Chicago Press 1983) (1969); CLAUDE LÉVI-STRAUSS, STRUCTURAL ANTHROPOLOGY 60 (Claire Jacobson & Brooke G. Schoepf trans., 1963) (reasoning that various social prohibitions against incest and certain types of marriages contribute to "the circulation of women within the social group"); id. at 83 (noting that marriage and kinship rules insure circulation of women, "just as economic rules serve to insure the ciruclation of goods and services").
66. The misogynist imagery is intentional. As I have argued extensively elsewhere, property, in the philosophy of Georg F.W. Hegel, serves a function, in the development of legal subjectivity, which is parallel to the function identified by Jacques Lacan to the phallic woman in the development of psychoanalytical subjectivity. See SCHROEDER, supra note 27; Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Psychoanalytically and anthropologically, the female body is the primal commodity of trade. See, e.g., JANE GALLOP, THINKING THROUGH THE BODY 33-34 (1988) (discussing how in "oedipal moment" boys must abandon "possessing" their mothers to gain identification with their fathers); CLAUDE LÉVI-STRAUSS, THE RAW AND THE COOKED: INTRODUCTION TO A SCIENCE OF MYTHOLOGY, VOL. 1 (John & Doreen Weightman trans., Univ. of Chicago Press 1983) (1969); CLAUDE LÉVI-STRAUSS, STRUCTURAL ANTHROPOLOGY 60 (Claire Jacobson & Brooke G. Schoepf trans., 1963) (reasoning that various social prohibitions against incest and certain types of marriages contribute to "the circulation of women within the social group"); id. at 83 (noting that marriage and kinship rules insure circulation of women, "just as economic rules serve to insure the ciruclation of goods and services").
67. The misogynist imagery is intentional. As I have argued extensively elsewhere, property, in the philosophy of Georg F.W. Hegel, serves a function, in the development of legal subjectivity, which is parallel to the function identified by Jacques Lacan to the phallic woman in the development of psychoanalytical subjectivity. See SCHROEDER, supra note 27; Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Psychoanalytically and anthropologically, the female body is the primal commodity of trade. See, e.g., JANE GALLOP, THINKING THROUGH THE BODY 33-34 (1988) (discussing how in "oedipal moment" boys must abandon "possessing" their mothers to gain identification with their fathers); CLAUDE LÉVI-STRAUSS, THE RAW AND THE COOKED: INTRODUCTION TO A SCIENCE OF MYTHOLOGY, VOL. 1 (John & Doreen Weightman trans., Univ. of Chicago Press 1983) (1969); CLAUDE LÉVI-STRAUSS, STRUCTURAL ANTHROPOLOGY 60 (Claire Jacobson & Brooke G. Schoepf trans., 1963) (reasoning that various social prohibitions against incest and certain types of marriages contribute to "the circulation of women within the social group"); id. at 83 (noting that marriage and kinship rules insure circulation of women, "just as economic rules serve to insure the ciruclation of goods and services").
68. The misogynist imagery is intentional. As I have argued extensively elsewhere, property, in the philosophy of Georg F.W. Hegel, serves a function, in the development of legal subjectivity, which is parallel to the function identified by Jacques Lacan to the phallic woman in the development of psychoanalytical subjectivity. See SCHROEDER, supra note 27; Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Psychoanalytically and anthropologically, the female body is the primal commodity of trade. See, e.g., JANE GALLOP, THINKING THROUGH THE BODY 33-34 (1988) (discussing how in "oedipal moment" boys must abandon "possessing" their mothers to gain identification with their fathers); CLAUDE LÉVI-STRAUSS, THE RAW AND THE COOKED: INTRODUCTION TO A SCIENCE OF MYTHOLOGY, VOL. 1 (John & Doreen Weightman trans., Univ. of Chicago Press 1983) (1969); CLAUDE LÉVI-STRAUSS, STRUCTURAL ANTHROPOLOGY 60 (Claire Jacobson & Brooke G. Schoepf trans., 1963) (reasoning that various social prohibitions against incest and certain types of marriages contribute to "the circulation of women within the social group"); id. at 83 (noting that marriage and kinship rules insure circulation of women, "just as economic rules serve to insure the ciruclation of goods and services").
69. The misogynist imagery is intentional. As I have argued extensively elsewhere, property, in the philosophy of Georg F.W. Hegel, serves a function, in the development of legal subjectivity, which is parallel to the function identified by Jacques Lacan to the phallic woman in the development of psychoanalytical subjectivity. See SCHROEDER, supra note 27; Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Psychoanalytically and anthropologically, the female body is the primal commodity of trade. See, e.g., JANE GALLOP, THINKING THROUGH THE BODY 33-34 (1988) (discussing how in "oedipal moment" boys must abandon "possessing" their mothers to gain identification with their fathers); CLAUDE LÉVI-STRAUSS, THE RAW AND THE COOKED: INTRODUCTION TO A SCIENCE OF MYTHOLOGY, VOL. 1 (John & Doreen Weightman trans., Univ. of Chicago Press 1983) (1969); CLAUDE LÉVI-STRAUSS, STRUCTURAL ANTHROPOLOGY 60 (Claire Jacobson & Brooke G. Schoepf trans., 1963) (reasoning that various social prohibitions against incest and certain types of marriages contribute to "the circulation of women within the social group"); id. at 83 (noting that marriage and kinship rules insure circulation of women, "just as economic rules serve to insure the ciruclation of goods and services").
70. The misogynist imagery is intentional. As I have argued extensively elsewhere, property, in the philosophy of Georg F.W. Hegel, serves a function, in the development of legal subjectivity, which is parallel to the function identified by Jacques Lacan to the phallic woman in the development of psychoanalytical subjectivity. See SCHROEDER, supra note 27; Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Psychoanalytically and anthropologically, the female body is the primal commodity of trade. See, e.g., JANE GALLOP, THINKING THROUGH THE BODY 33-34 (1988) (discussing how in "oedipal moment" boys must abandon "possessing" their mothers to gain identification with their fathers); CLAUDE LÉVI-STRAUSS, THE RAW AND THE COOKED: INTRODUCTION TO A SCIENCE OF MYTHOLOGY, VOL. 1 (John & Doreen Weightman trans., Univ. of Chicago Press 1983) (1969); CLAUDE LÉVI-STRAUSS, STRUCTURAL ANTHROPOLOGY 60 (Claire Jacobson & Brooke G. Schoepf trans., 1963) (reasoning that various social prohibitions against incest and certain types of marriages contribute to "the circulation of women within the social group"); id. at 83 (noting that marriage and kinship rules insure circulation of women, "just as economic rules serve to insure the ciruclation of goods and services").
71. The misogynist imagery is intentional. As I have argued extensively elsewhere, property, in the philosophy of Georg F.W. Hegel, serves a function, in the development of legal subjectivity, which is parallel to the function identified by Jacques Lacan to the phallic woman in the development of psychoanalytical subjectivity. See SCHROEDER, supra note 27; Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3. Psychoanalytically and anthropologically, the female body is the primal commodity of trade. See, e.g., JANE GALLOP, THINKING THROUGH THE BODY 33-34 (1988) (discussing how in "oedipal moment" boys must abandon "possessing" their mothers to gain identification with their fathers); CLAUDE LÉVI-STRAUSS, THE RAW AND THE COOKED: INTRODUCTION TO A SCIENCE OF MYTHOLOGY, VOL. 1 (John & Doreen Weightman trans., Univ. of Chicago Press 1983) (1969); CLAUDE LÉVI-STRAUSS, STRUCTURAL ANTHROPOLOGY 60 (Claire Jacobson & Brooke G. Schoepf trans., 1963) (reasoning that various social prohibitions against incest and certain types of marriages contribute to "the circulation of women within the social group"); id. at 83 (noting that marriage and kinship rules insure circulation of women, "just as economic rules serve to insure the ciruclation of goods and services").
72. Llewellyn, Realism, supra note 10.
73. To use Hohfeldian terminology, although the seller must have some power of alienation, a right of alienation is not necessary. For example, U.C.C. § 2-403(2) provides that certain entrustees have the power to sell a good to a buyer in the ordinary course of business even when she does not have such a right. In this Article, unless I indicate otherwise, I use the word "right" in the more general sense which can include any and all of the Hohfeldian desirabilities, rather than in the specific Hohfeldian jural correlative which he called a "right" (as opposed to power, privilege, etc.).
74. I use the term in the sense of "modern" art or "modern" philosophy. See CLEMENT GREENBERG, THE COLLECTED ESSAYS AND CRITICISMS 85-87 (John O'Brian ed., 1993); ARTHUR C. DANTO, AFTER THE END OF ART CONTEMPORARY ART AND THE PALE OF HISTORY 32-33 (1997); Robert Motherwell, The Painter and the Audience, in THE COLLECTED WRITINGS OF ROBERT MOTHERWELL 104, 106-07 (Stephanie Trenezio ed., 1992) (1954). The first is increasingly losing its connotations of "contemporary" or "new" art and becoming the name for a historical period of art ranging from the late nineteenth through the mid-twentieth century. Accordingly, the Museum of Modern Art in New York City has largely become a repository for such "new" old masters, as Van Gogh, Matisse, Picasso, and Pollock. A more recently founded New York museum dedicated primarily to the works of artists living today is, in contrast, called the New Museum of Contemporary Art. Similarly, many contemporary schools of social thought identify themselves as post-modern, to distinguish themselves from such "modern" (i.e., old) schools such as the various schools of liberalism and Marxism. Similarly, when I speak of "modern" commercial practice, I am describing the early and mid-twentieth century practices which the legal realists preserved in the U.C.C. One of my concerns about the physical metaphor is that, although it may be technically incorrect, it may have had some utility in a modern world where (arguably) the most valuable forms of commercial property were themselves tangible things (i.e., goods). However, it becomes
75. I use the term in the sense of "modern" art or "modern" philosophy. See CLEMENT GREENBERG, THE COLLECTED ESSAYS AND CRITICISMS 85-87 (John O'Brian ed., 1993); ARTHUR C. DANTO, AFTER THE END OF ART CONTEMPORARY ART AND THE PALE OF HISTORY 32-33 (1997); Robert Motherwell, The Painter and the Audience, in THE COLLECTED WRITINGS OF ROBERT MOTHERWELL 104, 106-07 (Stephanie Trenezio ed., 1992) (1954). The first is increasingly losing its connotations of "contemporary" or "new" art and becoming the name for a historical period of art ranging from the late nineteenth through the mid-twentieth century. Accordingly, the Museum of Modern Art in New York City has largely become a repository for such "new" old masters, as Van Gogh, Matisse, Picasso, and Pollock. A more recently founded New York museum dedicated primarily to the works of artists living today is, in contrast, called the New Museum of Contemporary Art. Similarly, many contemporary schools of social thought identify themselves as post-modern, to distinguish themselves from such "modern" (i.e., old) schools such as the various schools of liberalism and Marxism. Similarly, when I speak of "modern" commercial practice, I am describing the early and mid-twentieth century practices which the legal realists preserved in the U.C.C. One of my concerns about the physical metaphor is that, although it may be technically incorrect, it may have had some utility in a modern world where (arguably) the most valuable forms of commercial property were themselves tangible things (i.e., goods). However, it becomes increasingly bizarre in our post-modern techno-computerized world where some of the most valuable forms of commercial property are increasingly intellectual and intangible.
76. I use the term in the sense of "modern" art or "modern" philosophy. See CLEMENT GREENBERG, THE COLLECTED ESSAYS AND CRITICISMS 85-87 (John O'Brian ed., 1993); ARTHUR C. DANTO, AFTER THE END OF ART CONTEMPORARY ART AND THE PALE OF HISTORY 32-33 (1997); Robert Motherwell, The Painter and the Audience, in THE COLLECTED WRITINGS OF ROBERT MOTHERWELL 104, 106-07 (Stephanie Trenezio ed., 1992) (1954). The first is increasingly losing its connotations of "contemporary" or "new" art and becoming the name for a historical period of art ranging from the late nineteenth through the mid-twentieth century. Accordingly, the Museum of Modern Art in New York City has largely become a repository for such "new" old masters, as Van Gogh, Matisse, Picasso, and Pollock. A more recently founded New York museum dedicated primarily to the works of artists living today is, in contrast, called the New Museum of Contemporary Art. Similarly, many contemporary schools of social thought identify themselves as post-modern, to distinguish themselves from such "modern" (i.e., old) schools such as the various schools of liberalism and Marxism. Similarly, when I speak of "modern" commercial practice, I am describing the early and mid-twentieth century practices which the legal realists preserved in the U.C.C. One of my concerns about the physical metaphor is that, although it may be technically incorrect, it may have had some utility in a modern world where (arguably) the most valuable forms of commercial property were themselves tangible things (i.e., goods). However, it becomes increasingly bizarre in our post-modern techno-computerized world where some of the most valuable forms of commercial property are increasingly intellectual and intangible.
77. Although Ian MacNeil is known for his critique of what he called Llewellyn's "neoclassical" theory of contract law, Llewellyn's distinction between the sale and the contract for sale (as well as his contrast between the traditional agrarian paradigm of sale as an event and the modern mercantile paradigm of sale as a process, discussed infra Part III) foreshadows MacNeil's distinction between "discrete" and "relational" contracts. See, e.g., Ian R. MacNeil, Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neo-Classical and Relational Contract Law, 72 N.W.U. L. REV. 854 (1978). See also A CONTRACTS ANTHOLOGY (Peter Linzer ed., 1989) 67-69.
78. Although Ian MacNeil is known for his critique of what he called Llewellyn's "neoclassical" theory of contract law, Llewellyn's distinction between the sale and the contract for sale (as well as his contrast between the traditional agrarian paradigm of sale as an event and the modern mercantile paradigm of sale as a process, discussed infra Part III) foreshadows MacNeil's distinction between "discrete" and "relational" contracts. See, e.g., Ian R. MacNeil, Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neo-Classical and Relational Contract Law, 72 N.W.U. L. REV. 854 (1978). See also A CONTRACTS ANTHOLOGY (Peter Linzer ed., 1989) 67-69.
79. In this Article, I will concentrate on three of Llewellyn's articles in which he expressed his opinions as to what was wrong with the sales law of his day. These articles are: Karl N. Llewellyn, Through Title to Contract and a Bit Beyond, 15 N.Y.U. L. Q. REV. 159 (1938) [hereinafter Llewellyn, Through Title to Contract]; Karl N. Llewellyn, Across Sales on Horseback, 52 HARV. L. REV. 725 (1939) [hereinafter Llewellyn, Across Sales on Horseback]; and Karl N. Llewellyn, The First Struggle to Unhorse Sales 52 HARV. L. REV. 873 (1939) [hereinafter Llewellyn, The First Struggle to Unhorse Sales].
80. In this Article, I will concentrate on three of Llewellyn's articles in which he expressed his opinions as to what was wrong with the sales law of his day. These articles are: Karl N. Llewellyn, Through Title to Contract and a Bit Beyond, 15 N.Y.U. L. Q. REV. 159 (1938) [hereinafter Llewellyn, Through Title to Contract]; Karl N. Llewellyn, Across Sales on Horseback, 52 HARV. L. REV. 725 (1939) [hereinafter Llewellyn, Across Sales on Horseback]; and Karl N. Llewellyn, The First Struggle to Unhorse Sales 52 HARV. L. REV. 873 (1939) [hereinafter Llewellyn, The First Struggle to Unhorse Sales].
81. In this Article, I will concentrate on three of Llewellyn's articles in which he expressed his opinions as to what was wrong with the sales law of his day. These articles are: Karl N. Llewellyn, Through Title to Contract and a Bit Beyond, 15 N.Y.U. L. Q. REV. 159 (1938) [hereinafter Llewellyn, Through Title to Contract]; Karl N. Llewellyn, Across Sales on Horseback, 52 HARV. L. REV. 725 (1939) [hereinafter Llewellyn, Across Sales on Horseback]; and Karl N. Llewellyn, The First Struggle to Unhorse Sales 52 HARV. L. REV. 873 (1939) [hereinafter Llewellyn, The First Struggle to Unhorse Sales].
82. Llewellyn, Why a Commercial Code, supra note 1, at 786-87.
83. See infra text accompanying notes 52-88.
84. See infra text accompanying notes 89-126.
85. See infra text accompanying notes 166-211.
86. Llewellyn, Through Title to Contract, supra note 47, at 191.
87. KARL N. LLEWELLYN, CASES AND MATERIALS ON THE LAW OF SALES 64 (1930) [hereinafter LLEWELLYN, SALES].
88. See id. at xii-xiv. Hegel also makes a distinction between contract and the performance of the contract and compares it to the parellel distinction between property and the possession. In both dyads, the former is potentiality and the latter is its actualization. GEORG W.F. HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT 108-09, at § 78 (Allen W. Woods ed., H. B. Nisbet trans., 1991) (1821).
89. See id. at xii-xiv. Hegel also makes a distinction between contract and the performance of the contract and compares it to the parellel distinction between property and the possession. In both dyads, the former is potentiality and the latter is its actualization. GEORG W.F. HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT 108-09, at § 78 (Allen W. Woods ed., H. B. Nisbet trans., 1991) (1821).
90. LLEWELLYN, SALES, supra note 53, at xiv.
91. Llewellyn, Through Title to Contract, supra note 47, at 169.
92. Hohfeld included in personam claims within his category of "paucital" rights. See supra note 19 for a discussion of Hohfeld's characterization of paucital rights.
93. Llewellyn, Through Title, to Contract, supra note 47, at 159.
94. Llewellyn, Across Sales on Horseback, supra note 47, at 728. Oddly enough, Llewellyn argued against moving contract law out of sales entirely so that the contract of sales would be analyzed under the general law of contract. He thought it was analytically necessary for there to be a separate law of sales, but wanted the contract aspects of the law of sales to be analyzed in terms of contract concepts rather than property concepts. This concern with identifying separate identifiable "fields" of law seems strangely archaic today. Nevertheless, it is reflected in Article 2 of the U.C.C. which governs contracts only insofar as they relate to the sales of goods.
95. Llewellyn, Through Title to Contract, supra note 47, at 169.
96. Llewellyn acknowledges that new sales concepts were emerging in the early twentieth century but "the process is as groping and uncertain as it is stubborn; and ... is often obscured, still more often hindered or twisted, by the traditional language used in discussing the situations." LLEWELLYN, SALES, supra note 53, at 562. This is related to Llewellyn's second critique of the obsolete imagery reflected in the common law. See infra text accompanying notes 96-106.
97. Id. at xiv-xv.
98. In related articles and in my forthcoming book, I explore property not from the liberal tradition, but through Hegelian philosophy and Lacanian psychoanalytic theory. This approach also argues that property interests should be made "objectively" observable by third parties but on what I think are theoretically more satisfactory grounds. See, e.g., SCHROEDER, supra note 27; Schroeder, Legal Surrealism, supra note 34.
99. I assume the basic outlines of the various schools of liberal theory are generally familiar and I will make no attempt to explicate them here. In this Article, I am concentrating on that aspect of most liberal theories which concentrate on the natural right of autonomy and the negative liberty from interference. I do not wish to suggest that no contemporary liberal theory recognizes other values besides autonomy or negative liberty. Nor do I suggest that I personally believe that autonomy is the primary value to be furthered by a political economy. Nevertheless, I am suggesting two things. First, classical liberalism is the dominant political philosophy in this country and autonomy is a primary value in liberal thought. Second, although as a feminist who is highly influenced by Hegelian and continental speculative philosophy, I do not consider autonomy to be the only definition of human freedom, I do believe that autonomy must be respected as an important moment in the development of human freedom as self-actualization.
100. Of course, indirectly and eventually, contract can be interpreted as affecting third party rights in that contract can be viewed as inchoate property. By this I mean in so far as a favorable or unfavorable contract will affect the wealth and/or liquidity of a contract party, it will also affect the ability of that party's other creditors to enforce their claims. Moreover, once a contract party has obtained a judgment enforcing her contract right, she may turn the contract right into a property right by obtaining a judgment or execution lien on assets of the other party.
101. Of course, our law does not allow total freedom of contract on all matters, and does contain various paternalistic limitations such as the requirement of good faith.
102. Hohfeld included in rein rights in his category of "multital" rights. See supra note 19 for a discussion of Hohfeld's characterization of multital rights.
103. This will relate to what I will call the Hegelian concept of "possession." As I discuss in SCHROEDER, supra note 27, Schroeder, Legal Surrealism, supra note 34, at 512-13, although this terminology is traditional, it is unfortunate because it carries connotations of physicality which I, and Hegel, would deny. I suggest that a more appropriate term might be "objectification." I discuss various possible definitions of the words "subjective" and "objective" in Jeanne L. Schroeder, Subject: Object, 47 U. MIAMI L. REV. 1 (1992) [hereinafter Schroeder, Subject: Object]. I discuss the "objective" nature of property in Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7. In the present Article, I use these terms in a number of overlapping ways which should be clear in context. I sometimes use "subjectivity" to mean that which relates to being an individual legal subject (what I have called "Philosophic" Subjectivity). But it also includes that which is private or idiosyncratic to an individual person (what I have called "Individualistic" or "Idiosyncratic" Subjectivity). I use the word objectivity as the opposite of these definitions of subjectivity. It can mean that which relates to an object, defined as that which is external to or other than subjectivity (what I have called "Philosophic" Objectiv-ity). I also use the word "objective" to mean that which is intersubjectively recognizable by a specific community through the application of an intersubjectively agreed upon methodology ("Community" Subjectivity). This is the definition of objectivity adopted by many philosophers of science such as Karl Popper, Thomas Kuhn, and Imre Lakatos. This definition of objectivity should be distinguished from claims to external truth. Community Objectivity - which can be thought of as Symbolic or legal decision making - may or may not correspond to such External Objectivity - which can be thought of as Real or natural truth. See Jeanne L. Schroeder, Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination, 70 TEX. L. REV. 109, 161-74 (1991) [hereinafter Schroeder, Abduction from the Seraglio]. A glimmer of this intuition can perhaps be glimpsed in Llewellyn's casebook on sales. LLEWELLYN, SALES, supra note 53. He accurately discusses the common law principle of ostensible ownership which viewed some security agreements as fraudulent because of the possibility that third parties will be misled. He correctly realizes that this is a matter of "putting legal limits on the parties' powers to contract; they dicker, and their dicker fails of its intended effect, for some reason of policy. The questions are precisely (not in vague language) what is the policy?" He then asks whether the "practice of using financial statements as a basis of credit (a) displaced or (b) in any way modified the applicability of the old policies"? Id. at 894.
104. This will relate to what I will call the Hegelian concept of "possession." As I discuss in SCHROEDER, supra note 27, Schroeder, Legal Surrealism, supra note 34, at 512-13, although this terminology is traditional, it is unfortunate because it carries connotations of physicality which I, and Hegel, would deny. I suggest that a more appropriate term might be "objectification." I discuss various possible definitions of the words "subjective" and "objective" in Jeanne L. Schroeder, Subject: Object, 47 U. MIAMI L. REV. 1 (1992) [hereinafter Schroeder, Subject: Object]. I discuss the "objective" nature of property in Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7. In the present Article, I use these terms in a number of overlapping ways which should be clear in context. I sometimes use "subjectivity" to mean that which relates to being an individual legal subject (what I have called "Philosophic" Subjectivity). But it also includes that which is private or idiosyncratic to an individual person (what I have called "Individualistic" or "Idiosyncratic" Subjectivity). I use the word objectivity as the opposite of these definitions of subjectivity. It can mean that which relates to an object, defined as that which is external to or other than subjectivity (what I have called "Philosophic" Objectiv-ity). I also use the word "objective" to mean that which is intersubjectively recognizable by a specific community through the application of an intersubjectively agreed upon methodology ("Community" Subjectivity). This is the definition of objectivity adopted by many philosophers of science such as Karl Popper, Thomas Kuhn, and Imre Lakatos. This definition of objectivity should be distinguished from claims to external truth. Community Objectivity - which can be thought of as Symbolic or legal decision making - may or may not correspond to such External Objectivity - which can be thought of as Real or natural truth. See Jeanne L. Schroeder, Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination, 70 TEX. L. REV. 109, 161-74 (1991) [hereinafter Schroeder, Abduction from the Seraglio]. A glimmer of this intuition can perhaps be glimpsed in Llewellyn's casebook on sales. LLEWELLYN, SALES, supra note 53. He accurately discusses the common law principle of ostensible ownership which viewed some security agreements as fraudulent because of the possibility that third parties will be misled. He correctly realizes that this is a matter of "putting legal limits on the parties' powers to contract; they dicker, and their dicker fails of its intended effect, for some reason of policy. The questions are precisely (not in vague language) what is the policy?" He then asks whether the "practice of using financial statements as a basis of credit (a) displaced or (b) in any way modified the applicability of the old policies"? Id. at 894.
105. This will relate to what I will call the Hegelian concept of "possession." As I discuss in SCHROEDER, supra note 27, Schroeder, Legal Surrealism, supra note 34, at 512-13, although this terminology is traditional, it is unfortunate because it carries connotations of physicality which I, and Hegel, would deny. I suggest that a more appropriate term might be "objectification." I discuss various possible definitions of the words "subjective" and "objective" in Jeanne L. Schroeder, Subject: Object, 47 U. MIAMI L. REV. 1 (1992) [hereinafter Schroeder, Subject: Object]. I discuss the "objective" nature of property in Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7. In the present Article, I use these terms in a number of overlapping ways which should be clear in context. I sometimes use "subjectivity" to mean that which relates to being an individual legal subject (what I have called "Philosophic" Subjectivity). But it also includes that which is private or idiosyncratic to an individual person (what I have called "Individualistic" or "Idiosyncratic" Subjectivity). I use the word objectivity as the opposite of these definitions of subjectivity. It can mean that which relates to an object, defined as that which is external to or other than subjectivity (what I have called "Philosophic" Objectiv-ity). I also use the word "objective" to mean that which is intersubjectively recognizable by a specific community through the application of an intersubjectively agreed upon methodology ("Community" Subjectivity). This is the definition of objectivity adopted by many philosophers of science such as Karl Popper, Thomas Kuhn, and Imre Lakatos. This definition of objectivity should be distinguished from claims to external truth. Community Objectivity - which can be thought of as Symbolic or legal decision making - may or may not correspond to such External Objectivity - which can be thought of as Real or natural truth. See Jeanne L. Schroeder, Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination, 70 TEX. L. REV. 109, 161-74 (1991) [hereinafter Schroeder, Abduction from the Seraglio]. A glimmer of this intuition can perhaps be glimpsed in Llewellyn's casebook on sales. LLEWELLYN, SALES, supra note 53. He accurately discusses the common law principle of ostensible ownership which viewed some security agreements as fraudulent because of the possibility that third parties will be misled. He correctly realizes that this is a matter of "putting legal limits on the parties' powers to contract; they dicker, and their dicker fails of its intended effect, for some reason of policy. The questions are precisely (not in vague language) what is the policy?" He then asks whether the "practice of using financial statements as a basis of credit (a) displaced or (b) in any way modified the applicability of the old policies"? Id. at 894.
106. This will relate to what I will call the Hegelian concept of "possession." As I discuss in SCHROEDER, supra note 27, Schroeder, Legal Surrealism, supra note 34, at 512-13, although this terminology is traditional, it is unfortunate because it carries connotations of physicality which I, and Hegel, would deny. I suggest that a more appropriate term might be "objectification." I discuss various possible definitions of the words "subjective" and "objective" in Jeanne L. Schroeder, Subject: Object, 47 U. MIAMI L. REV. 1 (1992) [hereinafter Schroeder, Subject: Object]. I discuss the "objective" nature of property in Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7. In the present Article, I use these terms in a number of overlapping ways which should be clear in context. I sometimes use "subjectivity" to mean that which relates to being an individual legal subject (what I have called "Philosophic" Subjectivity). But it also includes that which is private or idiosyncratic to an individual person (what I have called "Individualistic" or "Idiosyncratic" Subjectivity). I use the word objectivity as the opposite of these definitions of subjectivity. It can mean that which relates to an object, defined as that which is external to or other than subjectivity (what I have called "Philosophic" Objectiv-ity). I also use the word "objective" to mean that which is intersubjectively recognizable by a specific community through the application of an intersubjectively agreed upon methodology ("Community" Subjectivity). This is the definition of objectivity adopted by many philosophers of science such as Karl Popper, Thomas Kuhn, and Imre Lakatos. This definition of objectivity should be distinguished from claims to external truth. Community Objectivity - which can be thought of as Symbolic or legal decision making - may or may not correspond to such External Objectivity - which can be thought of as Real or natural truth. See Jeanne L. Schroeder, Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination, 70 TEX. L. REV. 109, 161-74 (1991) [hereinafter Schroeder, Abduction from the Seraglio]. A glimmer of this intuition can perhaps be glimpsed in Llewellyn's casebook on sales. LLEWELLYN, SALES, supra note 53. He accurately discusses the common law principle of ostensible ownership which viewed some security agreements as fraudulent because of the possibility that third parties will be misled. He correctly realizes that this is a matter of "putting legal limits on the parties' powers to contract; they dicker, and their dicker fails of its intended effect, for some reason of policy. The questions are precisely (not in vague language) what is the policy?" He then asks whether the "practice of using financial statements as a basis of credit (a) displaced or (b) in any way modified the applicability of the old policies"? Id. at 894.
107. This will relate to what I will call the Hegelian concept of "possession." As I discuss in SCHROEDER, supra note 27, Schroeder, Legal Surrealism, supra note 34, at 512-13, although this terminology is traditional, it is unfortunate because it carries connotations of physicality which I, and Hegel, would deny. I suggest that a more appropriate term might be "objectification." I discuss various possible definitions of the words "subjective" and "objective" in Jeanne L. Schroeder, Subject: Object, 47 U. MIAMI L. REV. 1 (1992) [hereinafter Schroeder, Subject: Object]. I discuss the "objective" nature of property in Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7. In the present Article, I use these terms in a number of overlapping ways which should be clear in context. I sometimes use "subjectivity" to mean that which relates to being an individual legal subject (what I have called "Philosophic" Subjectivity). But it also includes that which is private or idiosyncratic to an individual person (what I have called "Individualistic" or "Idiosyncratic" Subjectivity). I use the word objectivity as the opposite of these definitions of subjectivity. It can mean that which relates to an object, defined as that which is external to or other than subjectivity (what I have called "Philosophic" Objectiv-ity). I also use the word "objective" to mean that which is intersubjectively recognizable by a specific community through the application of an intersubjectively agreed upon methodology ("Community" Subjectivity). This is the definition of objectivity adopted by many philosophers of science such as Karl Popper, Thomas Kuhn, and Imre Lakatos. This definition of objectivity should be distinguished from claims to external truth. Community Objectivity - which can be thought of as Symbolic or legal decision making - may or may not correspond to such External Objectivity - which can be thought of as Real or natural truth. See Jeanne L. Schroeder, Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination, 70 TEX. L. REV. 109, 161-74 (1991) [hereinafter Schroeder, Abduction from the Seraglio]. A glimmer of this intuition can perhaps be glimpsed in Llewellyn's casebook on sales. LLEWELLYN, SALES, supra note 53. He accurately discusses the common law principle of ostensible ownership which viewed some security agreements as fraudulent because of the possibility that third parties will be misled. He correctly realizes that this is a matter of "putting legal limits on the parties' powers to contract; they dicker, and their dicker fails of its intended effect, for some reason of policy. The questions are precisely (not in vague language) what is the policy?" He then asks whether the "practice of using financial statements as a basis of credit (a) displaced or (b) in any way modified the applicability of the old policies"? Id. at 894.
108. This will relate to what I will call the Hegelian concept of "possession." As I discuss in SCHROEDER, supra note 27, Schroeder, Legal Surrealism, supra note 34, at 512-13, although this terminology is traditional, it is unfortunate because it carries connotations of physicality which I, and Hegel, would deny. I suggest that a more appropriate term might be "objectification." I discuss various possible definitions of the words "subjective" and "objective" in Jeanne L. Schroeder, Subject: Object, 47 U. MIAMI L. REV. 1 (1992) [hereinafter Schroeder, Subject: Object]. I discuss the "objective" nature of property in Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7. In the present Article, I use these terms in a number of overlapping ways which should be clear in context. I sometimes use "subjectivity" to mean that which relates to being an individual legal subject (what I have called "Philosophic" Subjectivity). But it also includes that which is private or idiosyncratic to an individual person (what I have called "Individualistic" or "Idiosyncratic" Subjectivity). I use the word objectivity as the opposite of these definitions of subjectivity. It can mean that which relates to an object, defined as that which is external to or other than subjectivity (what I have called "Philosophic" Objectiv-ity). I also use the word "objective" to mean that which is intersubjectively recognizable by a specific community through the application of an intersubjectively agreed upon methodology ("Community" Subjectivity). This is the definition of objectivity adopted by many philosophers of science such as Karl Popper, Thomas Kuhn, and Imre Lakatos. This definition of objectivity should be distinguished from claims to external truth. Community Objectivity - which can be thought of as Symbolic or legal decision making - may or may not correspond to such External Objectivity - which can be thought of as Real or natural truth. See Jeanne L. Schroeder, Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination, 70 TEX. L. REV. 109, 161-74 (1991) [hereinafter Schroeder, Abduction from the Seraglio]. A glimmer of this intuition can perhaps be glimpsed in Llewellyn's casebook on sales. LLEWELLYN, SALES, supra note 53. He accurately discusses the common law principle of ostensible ownership which viewed some security agreements as fraudulent because of the possibility that third parties will be misled. He correctly realizes that this is a matter of "putting legal limits on the parties' powers to contract; they dicker, and their dicker fails of its intended effect, for some reason of policy. The questions are precisely (not in vague language) what is the policy?" He then asks whether the "practice of using financial statements as a basis of credit (a) displaced or (b) in any way modified the applicability of the old policies"? Id. at 894.
109. This will relate to what I will call the Hegelian concept of "possession." As I discuss in SCHROEDER, supra note 27, Schroeder, Legal Surrealism, supra note 34, at 512-13, although this terminology is traditional, it is unfortunate because it carries connotations of physicality which I, and Hegel, would deny. I suggest that a more appropriate term might be "objectification." I discuss various possible definitions of the words "subjective" and "objective" in Jeanne L. Schroeder, Subject: Object, 47 U. MIAMI L. REV. 1 (1992) [hereinafter Schroeder, Subject: Object]. I discuss the "objective" nature of property in Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7. In the present Article, I use these terms in a number of overlapping ways which should be clear in context. I sometimes use "subjectivity" to mean that which relates to being an individual legal subject (what I have called "Philosophic" Subjectivity). But it also includes that which is private or idiosyncratic to an individual person (what I have called "Individualistic" or "Idiosyncratic" Subjectivity). I use the word objectivity as the opposite of these definitions of subjectivity. It can mean that which relates to an object, defined as that which is external to or other than subjectivity (what I have called "Philosophic" Objectiv-ity). I also use the word "objective" to mean that which is intersubjectively recognizable by a specific community through the application of an intersubjectively agreed upon methodology ("Community" Subjectivity). This is the definition of objectivity adopted by many philosophers of science such as Karl Popper, Thomas Kuhn, and Imre Lakatos. This definition of objectivity should be distinguished from claims to external truth. Community Objectivity - which can be thought of as Symbolic or legal decision making - may or may not correspond to such External Objectivity - which can be thought of as Real or natural truth. See Jeanne L. Schroeder, Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination, 70 TEX. L. REV. 109, 161-74 (1991) [hereinafter Schroeder, Abduction from the Seraglio]. A glimmer of this intuition can perhaps be glimpsed in Llewellyn's casebook on sales. LLEWELLYN, SALES, supra note 53. He accurately discusses the common law principle of ostensible ownership which viewed some security agreements as fraudulent because of the possibility that third parties will be misled. He correctly realizes that this is a matter of "putting legal limits on the parties' powers to contract; they dicker, and their dicker fails of its intended effect, for some reason of policy. The questions are precisely (not in vague language) what is the policy?" He then asks whether the "practice of using financial statements as a basis of credit (a) displaced or (b) in any way modified the applicability of the old policies"? Id. at 894.
110. This is not to imply that all of the U.C.C.'s provisions concerning contracts are mutable. Definitional or boundary rules which serve to mark out what is or is not a contract (such as the requirements of offer, acceptance and consideration, or the parol evidence rule) are obvious examples of rules which cannot themselves be changed by contract. What I am saying is that the actual scope and nature of the contract rights and duties of the parties are subject to much greater subjective variation by the agreement of the parties than property rights and liabilities. Sometimes, however, we even limit the autonomy of contracting parties to specify the terms of the contract for ethical or paternalistic reasons.
111. See infra text accompanying notes 126-28. Another prominent example of this principle, which I discuss in greater detail in Schroeder, Legal Surrealism, supra note 34, is the regime of Article 9 of the U.C.C. Because the creation or "attachment" of security interests is a matter of contract between the debtor and the secured party, U.C.C. § 9-203(1)(a), attached security interests are enforceable against the contracting parties. Id. § 9-201. However, because security interests are conveyances of property, they are not enforceable against most third parties unless they are perfected by a formality designed to put the world on notice; typically by public filing or physical custody. See id. §§ 9-302, 9-305. The structure of Article 9 somewhat disguises this schema. Section 9-201 states that security agreements are enforceable against third parties unless otherwise provided. However, the exceptions to these rules contained in the priority rules of Part 3 to Article 9 all but eat up this general rule. See id. § 9-301. In order to prevail over other perfected secured parties, lien creditors, and many buyers, the security interest must be perfected. Unperfected security interests are, therefore, usually only enforceable against the debtor herself, her donees, buyers with notice, and subsequent unperfected secured parties. Moreover, in order for the parties' subjective characterization of their legal relationship to be recognized and enforced against third parties generally, the parties must structure their property transactions in accordance with objective standards. In other words, it is not enough for the parties to agree to call a conveyance a lease, a security interest, a consignment, a bailment for processing or whatever. The transaction must have the substantive characteristics which we associate with those forms of conveyances. See, e.g., id. § 1-201(37). See infra Part III for further discussion.
112. See, e.g., LLEWELLYN, SALES, supra note 53, at 573.
113. Id. at 573.
114. We do, in fact, require the recordation of conveyances in certain specific forms of personalty which, like realty, are conveyed relatively infrequently. For example, every state currently has a certificate of title regime for motor vehicles. Federal law requires all property interests (including leases) in aircraft to be recorded. Sometimes evidence of chain of title is required by industry custom and practice. For example, given the given the enormous black market in stolen art and illegally expatriated cultural property, many reputable art and antiquities auction houses require proof of "provenance" before accepting a commission. Compare Porter v. Wertz, 439 N.Y.S.2d 106 (1981), in which representatives of New York art galleries filed an amicus brief which argued, in effect, that it was the "ordinary course of business" in their industry not to ask too many questions. Id. at 107. Despite Llewellyn's misgivings about practicability, Douglas Baird has recently suggested that modern bar code technology might soon make it practicable to have a national "certificate of title" regime whereby all property interests in equipment would be recorded. Douglas G. Baird, Security Interests Reconsidered, 80 VA. L. REV. 2249, 2254-55 (1994). As Paul Shupack reminds us, however, practicability is not the same thing as desirability. Paul M. Shupack, On Boundaries and Definitions: A Commentary on Dean Baird, 80 VA. L. REV. 2273, 2275 (1994).
115. We do, in fact, require the recordation of conveyances in certain specific forms of personalty which, like realty, are conveyed relatively infrequently. For example, every state currently has a certificate of title regime for motor vehicles. Federal law requires all property interests (including leases) in aircraft to be recorded. Sometimes evidence of chain of title is required by industry custom and practice. For example, given the given the enormous black market in stolen art and illegally expatriated cultural property, many reputable art and antiquities auction houses require proof of "provenance" before accepting a commission. Compare Porter v. Wertz, 439 N.Y.S.2d 106 (1981), in which representatives of New York art galleries filed an amicus brief which argued, in effect, that it was the "ordinary course of business" in their industry not to ask too many questions. Id. at 107. Despite Llewellyn's misgivings about practicability, Douglas Baird has recently suggested that modern bar code technology might soon make it practicable to have a national "certificate of title" regime whereby all property interests in equipment would be recorded. Douglas G. Baird, Security Interests Reconsidered, 80 VA. L. REV. 2249, 2254-55 (1994). As Paul Shupack reminds us, however, practicability is not the same thing as desirability. Paul M. Shupack, On Boundaries and Definitions: A Commentary on Dean Baird, 80 VA. L. REV. 2273, 2275 (1994).
116. LLEWELLYN, SALES, supra note 53, at 573.
117. Id. at 114. "One indicium of title (by way of dictum) determines the location of title, from which the decision on another aspect of title flows." Id.
118. Id. at 114. "One indicium of title (by way of dictum) determines the location of title, from which the decision on another aspect of title flows." Id.
119. Llewellyn, Through Title to Contract, supra note 47, at 171.
120. Llewellyn, Why a Commercial Code?, supra note 1, at 787.
121. At least, not unless one masochistically considers loss to be the dark side of enjoyment.
122. Indeed, the common law's preoccupation with property even resulted in confusing that pre-eminent contractual element of sales - payment of the price - with property. None-the-less, the courts and the [Uniform Sales Act] have found it convenient, especially in the absence of express provisions in the contract, to lump price and risk questions with property. Normally, the price will be earned when the goods become B's. Normally, accidental destruction will fall on the owner. LLEWELLYN, SALES, supra note 53, at 65.
123. I believe that these are the standard explanations for the schema found in Article 2's default clauses which tend to place risk of loss on the party who has greater physical control of the good (with some variations in the case of breach).
124. Indeed, Llewellyn suggested that traditional title rhetoric obscured the fact that a trend had already begun in the law of sales towards contract analysis. In the introduction to his casebook on sales, he objected to the tendency to start a course on sales with a discussion of "title" because it centers on the picture of title as a lump at a time when the whole trend of the most intelligent judicial discussion is increasingly to recognize one issue and another as split off from "title," and increasingly to settle issues irrespective of where title is said to be. LLEWELLYN, SALES, supra note 53, at xiv.
125. Llewellyn, Through Title to Contract, supra note 47, at 182-86. See also LLEWELLYN, SALES, supra note 53, at 588 (pointing to problems posed by risk allocation between buyer and seller).
126. Llewellyn, Through Title to Contract, supra note 47, at 182-86. See also LLEWELLYN, SALES, supra note 53, at 588 (pointing to problems posed by risk allocation between buyer and seller).
127. Llewellyn, Through Title to Contract, supra note 47, at 182-83.
128. See LLEWELLYN, SALES, supra note 53, at 562. This traditional language still presupposes that the determining problem in a sales case is the location of "the" title in either B[uyer] or S[eller]; and that the decision will follow of necessity from that location. So the feeling and "the rule" that the price normally cannot be recovered unless "the title has passed" and that risk normally "follows title." But it does not often happen that a decision on the location of title is really necessary to decide the issue in the case; and the oftener the issue arises out of a contract for sale, the less often is the location of title really determinative. Id.
129. See LLEWELLYN, SALES, supra note 53, at 562. This traditional language still presupposes that the determining problem in a sales case is the location of "the" title in either B[uyer] or S[eller]; and that the decision will follow of necessity from that location. So the feeling and "the rule" that the price normally cannot be recovered unless "the title has passed" and that risk normally "follows title." But it does not often happen that a decision on the location of title is really necessary to decide the issue in the case; and the oftener the issue arises out of a contract for sale, the less often is the location of title really determinative. Id.
130. See id. at xiv. [T]he actual use of the title concept by the courts in contracts for future sale results in the conclusion that the allocation of title is in fact determined repeatedly by features of the contract which serve equally well to solve the problem without recourse to the title concept itself. The realization of this means a distinct simplification in solving the problems concerned. Id.
131. See id. at xiv. [T]he actual use of the title concept by the courts in contracts for future sale results in the conclusion that the allocation of title is in fact determined repeatedly by features of the contract which serve equally well to solve the problem without recourse to the title concept itself. The realization of this means a distinct simplification in solving the problems concerned. Id.
132. See supra text accompanying notes 77-81,
133. Llewellyn, Through Title to Contract, supra note 47, at 183-84. As I shall discuss, see infra text accompanying notes 101-06, Llewllyn's metaphors reflect the physical metaphor.
134. Id. at 202.
135. Llewellyn, The First Struggle to Unhorse Sales, supra note 47, at 874.
136. Id. at 875.
137. Id. at 880.
138. I hesitate before invoking the name of Thomas Kuhn because a vulgarized version of his concept of paradigms has become a cliche of academic legal scholarship. See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 176 (2d ed. 1970) ("A paradigm is what the members of a scientific community share, and, conversely, a scientific community consists of [those] who share a paradigm."); Edward J. Conry & Caryn L. Beck-Dudley, Meta-Jurisprudence: The Epistemology of Law, 33 AM. Bus. L.J. 373, 392 (Spring 1996) (noting that "paradigm is a widely accepted way of looking at, or perceiving, reality. It is a shared set of assumptions . . . about what theory best describes the world and, therefore, which research questions and methodologies are appropriate."). See also Charles W. Collier, Interdisciplinary Legal Scholarship in Search of a Paradigm, 42 DUKE L.J. 840,842-44 (1993) (reasoning that contemporary legal scholarship as undergoing paradigm shift); Jeffrey W. Stempel, New Paradigm, Normal Science, or Crumbling Construct? Trends in Adjudicatory Procedure and Litigation Reform, 59 BROOK. L. REV. 659,691-92 (1993) (arguing that contemporary approaches to litigation represent paradigm shift in which perceived need for change is answered "through a variety of sources outside the traditional hierarchy of rulemaking"); Steven L. Winter, Bull Durham and the Uses of Theory, 42 STAN. L. REV. 639, 679-81 (1990) (articulating four indicia that current legal theory is in state of crisis, presaging paradigm shift: preoccupation with indeterminacy; increase in philosophical analysis to resolve legal issues; proliferation of hybridization; proliferation of separate "schools" of legal thought with no intercommunication). In this case, however, its very banality serves my purpose of rendering Llewellyn's little known theory more familiar. I explore Kuhn's theory, as well as the variation developed by his colleague, Imre Lakatos, in Schroeder, Abduction from the Seraglio, supra note 68.
139. I hesitate before invoking the name of Thomas Kuhn because a vulgarized version of his concept of paradigms has become a cliche of academic legal scholarship. See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 176 (2d ed. 1970) ("A paradigm is what the members of a scientific community share, and, conversely, a scientific community consists of [those] who share a paradigm."); Edward J. Conry & Caryn L. Beck-Dudley, Meta-Jurisprudence: The Epistemology of Law, 33 AM. Bus. L.J. 373, 392 (Spring 1996) (noting that "paradigm is a widely accepted way of looking at, or perceiving, reality. It is a shared set of assumptions . . . about what theory best describes the world and, therefore, which research questions and methodologies are appropriate."). See also Charles W. Collier, Interdisciplinary Legal Scholarship in Search of a Paradigm, 42 DUKE L.J. 840,842-44 (1993) (reasoning that contemporary legal scholarship as undergoing paradigm shift); Jeffrey W. Stempel, New Paradigm, Normal Science, or Crumbling Construct? Trends in Adjudicatory Procedure and Litigation Reform, 59 BROOK. L. REV. 659,691-92 (1993) (arguing that contemporary approaches to litigation represent paradigm shift in which perceived need for change is answered "through a variety of sources outside the traditional hierarchy of rulemaking"); Steven L. Winter, Bull Durham and the Uses of Theory, 42 STAN. L. REV. 639, 679-81 (1990) (articulating four indicia that current legal theory is in state of crisis, presaging paradigm shift: preoccupation with indeterminacy; increase in philosophical analysis to resolve legal issues; proliferation of hybridization; proliferation of separate "schools" of legal thought with no intercommunication). In this case, however, its very banality serves my purpose of rendering Llewellyn's little known theory more familiar. I explore Kuhn's theory, as well as the variation developed by his colleague, Imre Lakatos, in Schroeder, Abduction from the Seraglio, supra note 68.
140. I hesitate before invoking the name of Thomas Kuhn because a vulgarized version of his concept of paradigms has become a cliche of academic legal scholarship. See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 176 (2d ed. 1970) ("A paradigm is what the members of a scientific community share, and, conversely, a scientific community consists of [those] who share a paradigm."); Edward J. Conry & Caryn L. Beck-Dudley, Meta-Jurisprudence: The Epistemology of Law, 33 AM. Bus. L.J. 373, 392 (Spring 1996) (noting that "paradigm is a widely accepted way of looking at, or perceiving, reality. It is a shared set of assumptions . . . about what theory best describes the world and, therefore, which research questions and methodologies are appropriate."). See also Charles W. Collier, Interdisciplinary Legal Scholarship in Search of a Paradigm, 42 DUKE L.J. 840,842-44 (1993) (reasoning that contemporary legal scholarship as undergoing paradigm shift); Jeffrey W. Stempel, New Paradigm, Normal Science, or Crumbling Construct? Trends in Adjudicatory Procedure and Litigation Reform, 59 BROOK. L. REV. 659,691-92 (1993) (arguing that contemporary approaches to litigation represent paradigm shift in which perceived need for change is answered "through a variety of sources outside the traditional hierarchy of rulemaking"); Steven L. Winter, Bull Durham and the Uses of Theory, 42 STAN. L. REV. 639, 679-81 (1990) (articulating four indicia that current legal theory is in state of crisis, presaging paradigm shift: preoccupation with indeterminacy; increase in philosophical analysis to resolve legal issues; proliferation of hybridization; proliferation of separate "schools" of legal thought with no intercommunication). In this case, however, its very banality serves my purpose of rendering Llewellyn's little known theory more familiar. I explore Kuhn's theory, as well as the variation developed by his colleague, Imre Lakatos, in Schroeder, Abduction from the Seraglio, supra note 68.
141. I hesitate before invoking the name of Thomas Kuhn because a vulgarized version of his concept of paradigms has become a cliche of academic legal scholarship. See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 176 (2d ed. 1970) ("A paradigm is what the members of a scientific community share, and, conversely, a scientific community consists of [those] who share a paradigm."); Edward J. Conry & Caryn L. Beck-Dudley, Meta-Jurisprudence: The Epistemology of Law, 33 AM. Bus. L.J. 373, 392 (Spring 1996) (noting that "paradigm is a widely accepted way of looking at, or perceiving, reality. It is a shared set of assumptions . . . about what theory best describes the world and, therefore, which research questions and methodologies are appropriate."). See also Charles W. Collier, Interdisciplinary Legal Scholarship in Search of a Paradigm, 42 DUKE L.J. 840,842-44 (1993) (reasoning that contemporary legal scholarship as undergoing paradigm shift); Jeffrey W. Stempel, New Paradigm, Normal Science, or Crumbling Construct? Trends in Adjudicatory Procedure and Litigation Reform, 59 BROOK. L. REV. 659,691-92 (1993) (arguing that contemporary approaches to litigation represent paradigm shift in which perceived need for change is answered "through a variety of sources outside the traditional hierarchy of rulemaking"); Steven L. Winter, Bull Durham and the Uses of Theory, 42 STAN. L. REV. 639, 679-81 (1990) (articulating four indicia that current legal theory is in state of crisis, presaging paradigm shift: preoccupation with indeterminacy; increase in philosophical analysis to resolve legal issues; proliferation of hybridization; proliferation of separate "schools" of legal thought with no intercommunication). In this case, however, its very banality serves my purpose of rendering Llewellyn's little known theory more familiar. I explore Kuhn's theory, as well as the variation developed by his colleague, Imre Lakatos, in Schroeder, Abduction from the Seraglio, supra note 68.
142. I hesitate before invoking the name of Thomas Kuhn because a vulgarized version of his concept of paradigms has become a cliche of academic legal scholarship. See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 176 (2d ed. 1970) ("A paradigm is what the members of a scientific community share, and, conversely, a scientific community consists of [those] who share a paradigm."); Edward J. Conry & Caryn L. Beck-Dudley, Meta-Jurisprudence: The Epistemology of Law, 33 AM. Bus. L.J. 373, 392 (Spring 1996) (noting that "paradigm is a widely accepted way of looking at, or perceiving, reality. It is a shared set of assumptions . . . about what theory best describes the world and, therefore, which research questions and methodologies are appropriate."). See also Charles W. Collier, Interdisciplinary Legal Scholarship in Search of a Paradigm, 42 DUKE L.J. 840,842-44 (1993) (reasoning that contemporary legal scholarship as undergoing paradigm shift); Jeffrey W. Stempel, New Paradigm, Normal Science, or Crumbling Construct? Trends in Adjudicatory Procedure and Litigation Reform, 59 BROOK. L. REV. 659,691-92 (1993) (arguing that contemporary approaches to litigation represent paradigm shift in which perceived need for change is answered "through a variety of sources outside the traditional hierarchy of rulemaking"); Steven L. Winter, Bull Durham and the Uses of Theory, 42 STAN. L. REV. 639, 679-81 (1990) (articulating four indicia that current legal theory is in state of crisis, presaging paradigm shift: preoccupation with indeterminacy; increase in philosophical analysis to resolve legal issues; proliferation of hybridization; proliferation of separate "schools" of legal thought with no intercommunication). In this case, however, its very banality serves my purpose of rendering Llewellyn's little known theory more familiar. I explore Kuhn's theory, as well as the variation developed by his colleague, Imre Lakatos, in Schroeder, Abduction from the Seraglio, supra note 68.
143. I hesitate before invoking the name of Thomas Kuhn because a vulgarized version of his concept of paradigms has become a cliche of academic legal scholarship. See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 176 (2d ed. 1970) ("A paradigm is what the members of a scientific community share, and, conversely, a scientific community consists of [those] who share a paradigm."); Edward J. Conry & Caryn L. Beck-Dudley, Meta-Jurisprudence: The Epistemology of Law, 33 AM. Bus. L.J. 373, 392 (Spring 1996) (noting that "paradigm is a widely accepted way of looking at, or perceiving, reality. It is a shared set of assumptions . . . about what theory best describes the world and, therefore, which research questions and methodologies are appropriate."). See also Charles W. Collier, Interdisciplinary Legal Scholarship in Search of a Paradigm, 42 DUKE L.J. 840,842-44 (1993) (reasoning that contemporary legal scholarship as undergoing paradigm shift); Jeffrey W. Stempel, New Paradigm, Normal Science, or Crumbling Construct? Trends in Adjudicatory Procedure and Litigation Reform, 59 BROOK. L. REV. 659,691-92 (1993) (arguing that contemporary approaches to litigation represent paradigm shift in which perceived need for change is answered "through a variety of sources outside the traditional hierarchy of rulemaking"); Steven L. Winter, Bull Durham and the Uses of Theory, 42 STAN. L. REV. 639, 679-81 (1990) (articulating four indicia that current legal theory is in state of crisis, presaging paradigm shift: preoccupation with indeterminacy; increase in philosophical analysis to resolve legal issues; proliferation of hybridization; proliferation of separate "schools" of legal thought with no intercommunication). In this case, however, its very banality serves my purpose of rendering Llewellyn's little known theory more familiar. I explore Kuhn's theory, as well as the variation developed by his colleague, Imre Lakatos, in Schroeder, Abduction from the Seraglio, supra note 68.
144. Needless to say, Llewellyn was writing more than 30 years prior to the publication of Kuhn's essay and could not have been influenced by Kuhn's theory. Nevertheless, I believe one can find certain similarities between Llewellyn's and Kuhn's ideas.
145. Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in CRITICISM AND THE GROWTH OF KNOWLEDGE 91 (Imre Lakatos & Alan Musgrave eds., 1970). See Schroeder, Abduction from the Seraglio, supra note 68, at 168-71 (citing Lakatos's argument that existing theories or paradigms are not changed by extraordinary discoveries, but are replaced gradually, making certain innovations appear, in retrospect, extraordinary). Lakatos used the more modest term "research programme" instead of Kuhn's "paradigm." 95. Lakatos was trying to reconcile Karl Popper's theory of falsification with Kuhn's theory of paradigms. Kuhn believed that paradigm shifts occurred for "good reasons" but not strictly logical ones. Lakatos thought he was developing a logical account of paradigm shifts. He thought that, to be adopted, a revolutionary paradigm had to explain everything the old paradigm explained, and more. Although Lakatos's accounts of research paradigms degenerating under the barnacles of auxiliary theories is attractive, his attempt to account for paradigm shifts is unconvincing on both theoretical and empirical grounds, as Paul Feyerabend demonstrated. Theoretically, the very theory of paradigms/research programs holds that the applicable criterion of logic is itself part and parcel of a paradigm. This means that, by definition, there can be no transcendent criteria of logic external to a paradigm which can explain shifts. Empirically, Feyerabend believes that one can show many scientific paradigm shifts in which the new paradigm did not, in fact, explain everything the old paradigms explained and more. Sometimes, he maintained, they explained less, but in a way which was judged better. Sometimes the new paradigm overlapped the old. Paul Feyerabend, Consolations for the Specialist, in CRITICISM AND THE GROWTH OF KNOWLEDGE 197, 220 (Imre Lakatos & Alan Musgrave eds., 1970). See Schroeder, Abduction from the Seraglio, supra note 68, at 170-71, n.191 (explaining diagram illustrative of Feyerabend's theory).
146. Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in CRITICISM AND THE GROWTH OF KNOWLEDGE 91 (Imre Lakatos & Alan Musgrave eds., 1970). See Schroeder, Abduction from the Seraglio, supra note 68, at 168-71 (citing Lakatos's argument that existing theories or paradigms are not changed by extraordinary discoveries, but are replaced gradually, making certain innovations appear, in retrospect, extraordinary). Lakatos used the more modest term "research programme" instead of Kuhn's "paradigm." 95. Lakatos was trying to reconcile Karl Popper's theory of falsification with Kuhn's theory of paradigms. Kuhn believed that paradigm shifts occurred for "good reasons" but not strictly logical ones. Lakatos thought he was developing a logical account of paradigm shifts. He thought that, to be adopted, a revolutionary paradigm had to explain everything the old paradigm explained, and more. Although Lakatos's accounts of research paradigms degenerating under the barnacles of auxiliary theories is attractive, his attempt to account for
147. Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in CRITICISM AND THE GROWTH OF KNOWLEDGE 91 (Imre Lakatos & Alan Musgrave eds., 1970). See Schroeder, Abduction from the Seraglio, supra note 68, at 168-71 (citing Lakatos's argument that existing theories or paradigms are not changed by extraordinary discoveries, but are replaced gradually, making certain innovations appear, in retrospect, extraordinary). Lakatos used the more modest term "research programme" instead of Kuhn's "paradigm." 95. Lakatos was trying to reconcile Karl Popper's theory of falsification with Kuhn's theory of paradigms. Kuhn believed that paradigm shifts occurred for "good reasons" but not strictly logical ones. Lakatos thought he was developing a logical account of paradigm shifts. He thought that, to be adopted, a revolutionary paradigm had to explain everything the old paradigm explained, and more. Although Lakatos's accounts of research paradigms degenerating under the barnacles of auxiliary theories is attractive, his attempt to account for paradigm shifts is unconvincing on both theoretical and empirical grounds, as Paul Feyerabend demonstrated. Theoretically, the very theory of paradigms/research programs holds that the applicable criterion of logic is itself part and parcel of a paradigm. This means that, by definition, there can be no transcendent criteria of logic external to a paradigm which can explain shifts. Empirically, Feyerabend believes that one can show many scientific paradigm shifts in which the new paradigm did not, in fact, explain everything the old paradigms explained and more. Sometimes, he maintained, they explained less, but in a way which was judged better. Sometimes the new paradigm overlapped the old. Paul Feyerabend, Consolations for the Specialist, in CRITICISM AND THE GROWTH OF KNOWLEDGE 197, 220 (Imre Lakatos & Alan Musgrave eds., 1970). See Schroeder, Abduction from the Seraglio, supra note 68, at 170-71, n.191 (explaining diagram illustrative of Feyerabend's theory).
148. Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in CRITICISM AND THE GROWTH OF KNOWLEDGE 91 (Imre Lakatos & Alan Musgrave eds., 1970). See Schroeder, Abduction from the Seraglio, supra note 68, at 168-71 (citing Lakatos's argument that existing theories or paradigms are not changed by extraordinary discoveries, but are replaced gradually, making certain innovations appear, in retrospect, extraordinary). Lakatos used the more modest term "research programme" instead of Kuhn's "paradigm." 95. Lakatos was trying to reconcile Karl Popper's theory of falsification with Kuhn's theory of paradigms. Kuhn believed that paradigm shifts occurred for "good reasons" but not strictly logical ones. Lakatos thought he was developing a logical account of paradigm shifts. He thought that, to be adopted, a revolutionary paradigm had to explain everything the old paradigm explained, and more. Although Lakatos's accounts of research paradigms degenerating under the barnacles of auxiliary theories is attractive, his attempt to account for paradigm shifts is unconvincing on both theoretical and empirical grounds, as Paul Feyerabend demonstrated. Theoretically, the very theory of paradigms/research programs holds that the applicable criterion of logic is itself part and parcel of a paradigm. This means that, by definition, there can be no transcendent criteria of logic external to a paradigm which can explain shifts. Empirically, Feyerabend believes that one can show many scientific paradigm shifts in which the new paradigm did not, in fact, explain everything the old paradigms explained and more. Sometimes, he maintained, they explained less, but in a way which was judged better. Sometimes the new paradigm overlapped the old. Paul Feyerabend, Consolations for the Specialist, in CRITICISM AND THE GROWTH OF KNOWLEDGE 197, 220 (Imre Lakatos & Alan Musgrave eds., 1970). See Schroeder, Abduction from the Seraglio, supra note 68, at 170-71, n.191 (explaining diagram illustrative of Feyerabend's theory).
149. Llewellyn, Across Sales on Horseback, supra note 47, at 727. So also of the peculiar problems of case-law in remodelling its concepts and its rules; for by what is an extraordinary series of accidents this branch of our mercantile law took off with farmer's eyes and farmer's tools; and though it has shown something of a farmer's handiness in effective tinkering (albeit with poor equipment) it retains to this day the old-time farmer's unreadiness to follow a leader in his theory as distinct from his practice. Id.
150. Llewellyn, Across Sales on Horseback, supra note 47, at 727. So also of the peculiar problems of case-law in remodelling its concepts and its rules; for by what is an extraordinary series of accidents this branch of our mercantile law took off with farmer's eyes and farmer's tools; and though it has shown something of a farmer's handiness in effective tinkering (albeit with poor equipment) it retains to this day the old-time farmer's unreadiness to follow a leader in his theory as distinct from his practice. Id.
151. LLEWELLYN, SALES, supra note 53, at 204.
152. Llewellyn, The First Struggle to Unhorse Sales, supra note 47, at 879. And until merchant-to-merchant sales of wares are seen as the focus of a particular body of law (which they already largely are, in fact and in the decisions) we go on lacking clear, neat doctrine to distinguish from them, where needed, sales by non merchants, or to distinguish, where needed, sales to non-merchants (the ultimate consumer) from both. Id. Llewellyn might be seen as trying to complete a development in commercial law which began in the previous century. As explained by Richard Sauer in an elegant recent article, the controversy concerning adoption of the Bankruptcy Act of 1898 can be seen as a struggle between a traditional agrarian model of commercial relationships - which still characterized the economy of the South - and a "modern" mercantile model - which increasingly characterized the economy of the North. Richard C. Sauer, Bankruptcy Law and the Maturing of American Capitalism, 55 OHIO ST. L.J. 291 (1994). Sauer's description of the agrarian economic paradigm is strikingly similar to Llewellyn's: Farmer's have historically regarded property as something tangible to be physically held and used - primarily land and its products - its value deriving from its utility in possession. Naturally, some portion of the farmer's product will be taken to market and become temporarily property in exchange. But this process was seen as little different than straightforward barter between producers, closely circumscribed in time.... To the commercial classes, on the other hand, tangible assets exist for the very purpose of exchange. Id. at 304-05.
153. Llewellyn, The First Struggle to Unhorse Sales, supra note 47, at 879. And until merchant-to-merchant sales of wares are seen as the focus of a particular body of law (which they already largely are, in fact and in the decisions) we go on lacking clear, neat doctrine to distinguish from them, where needed, sales by non merchants, or to distinguish, where needed, sales to non-merchants (the ultimate consumer) from both. Id. Llewellyn might be seen as trying to complete a development in commercial law which began in the previous century. As explained by Richard Sauer in an elegant recent article, the controversy concerning adoption of the Bankruptcy Act of 1898 can be seen as a struggle between a traditional agrarian model of commercial relationships - which still characterized the economy of the South - and a "modern" mercantile model - which increasingly characterized the economy of the North. Richard C. Sauer, Bankruptcy Law and the Maturing of American Capitalism, 55 OHIO ST. L.J. 291 (1994). Sauer's description of the agrarian economic paradigm is strikingly similar to Llewellyn's: Farmer's have historically regarded property as something tangible to be physically held and used - primarily land and its products - its value deriving from its utility in possession. Naturally, some portion of the farmer's product will be taken to market and become temporarily property in exchange. But this process was seen as little different than straightforward barter between producers, closely circumscribed in time.... To the commercial classes, on the other hand, tangible assets exist for the very purpose of exchange. Id. at 304-05.
154. Llewellyn, The First Struggle to Unhorse Sales, supra note 47, at 879. And until merchant-to-merchant sales of wares are seen as the focus of a particular body of law (which they already largely are, in fact and in the decisions) we go on lacking clear, neat doctrine to distinguish from them, where needed, sales by non merchants, or to distinguish, where needed, sales to non-merchants (the ultimate consumer) from both. Id. Llewellyn might be seen as trying to complete a development in commercial law which began in the previous century. As explained by Richard Sauer in an elegant recent article, the controversy concerning adoption of the Bankruptcy Act of 1898 can be seen as a struggle between a traditional agrarian model of commercial relationships - which still characterized the economy of the South - and a "modern" mercantile model - which increasingly characterized the economy of the North. Richard C. Sauer, Bankruptcy Law and the Maturing of American Capitalism, 55 OHIO ST. L.J. 291 (1994). Sauer's description of the agrarian economic paradigm is strikingly similar to Llewellyn's: Farmer's have historically regarded property as something tangible to be physically held and used - primarily land and its products - its value deriving from its utility in possession. Naturally, some portion of the farmer's product will be taken to market and become temporarily property in exchange. But this process was seen as little different than straightforward barter between producers, closely circumscribed in time.... To the commercial classes, on the other hand, tangible assets exist for the very purpose of exchange. Id. at 304-05.
155. Llewellyn, The First Struggle to Unhorse Sales, supra note 47, at 879. And until merchant-to-merchant sales of wares are seen as the focus of a particular body of law (which they already largely are, in fact and in the decisions) we go on lacking clear, neat doctrine to distinguish from them, where needed, sales by non merchants, or to distinguish, where needed, sales to non-merchants (the ultimate consumer) from both. Id. Llewellyn might be seen as trying to complete a development in commercial law which began in the previous century. As explained by Richard Sauer in an elegant recent article, the controversy concerning adoption of the Bankruptcy Act of 1898 can be seen as a struggle between a traditional agrarian model of commercial relationships - which still characterized the economy of the South - and a "modern" mercantile model - which increasingly characterized the economy of the North. Richard C. Sauer, Bankruptcy Law and the Maturing of American Capitalism, 55 OHIO ST. L.J. 291 (1994). Sauer's description of the agrarian economic paradigm is strikingly similar to Llewellyn's: Farmer's have historically regarded property as something tangible to be physically held and used - primarily land and its products - its value deriving from its utility in possession. Naturally, some portion of the farmer's product will be taken to market and become temporarily property in exchange. But this process was seen as little different than straightforward barter between producers, closely circumscribed in time.... To the commercial classes, on the other hand, tangible assets exist for the very purpose of exchange. Id. at 304-05.
156. Llewellyn, The First Struggle to Unhorse Sales, supra note 47, at 881-82.
157. This imagery also determined the common law of warranty. In the farmer's transaction, not only do the buyer and seller know each other, the buyer had the chance to inspect a pre-existing good before the sale. In such a world, warranties have little place. See, e.g., LLEWELLYN, SALES, supra note 53, at 204 (reflecting on traditional practice of face-to-face trading of goods which provided both parties opportunities to inspect quality of goods).
158. Id. at 561.
159. Llewellyn briefly traces the development of mercantile law starting from Coke. His point is not that these great judges were unable to develop rules which addressed the unique needs of mercantile transactions, but that they developed them as exceptions to or special circumstances of a law designed for agricultural transactions. Llewellyn, Across Sales on Horseback, supra note 47, at 732-46. A.W.B. Simpson makes a similar point about Blackstone's great Commentaries on property. Although Blackstone at one level recognized the then newly developing mercantile and financial legal rules, he clearly viewed the agricultural law of the landed gentry as the norm or heart of property law. As Simpson notes in his excellent introduction, Blackstone's work "smells of the countryside; the law is the law of the country gentry, not Cheapside. The Commentaries reflects the essentially rural character of the high civilization of the eighteenth century." A.W. Brian Simpson, Introduction, in 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND xii (A.W. Brian Simpson ed., 1979).
160. Llewellyn briefly traces the development of mercantile law starting from Coke. His point is not that these great judges were unable to develop rules which addressed the unique needs of mercantile transactions, but that they developed them as exceptions to or special circumstances of a law designed for agricultural transactions. Llewellyn, Across Sales on Horseback, supra note 47, at 732-46. A.W.B. Simpson makes a similar point about Blackstone's great Commentaries on property. Although Blackstone at one level recognized the then newly developing mercantile and financial legal rules, he clearly viewed the agricultural law of the landed gentry as the norm or heart of property law. As Simpson notes in his excellent introduction, Blackstone's work "smells of the countryside; the law is the law of the country gentry, not Cheapside. The Commentaries reflects the essentially rural character of the high civilization of the eighteenth century." A.W. Brian Simpson, Introduction, in 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND xii (A.W. Brian Simpson ed., 1979).
161. Llewellyn, The First Struggle to Unhorse Sales, supra note 47, at 876.
162. Id. at 894.
163. Llewellyn, Across Sales on Horseback, supra note 47, at 736.
164. See, e.g., Llewellyn, The First Struggle to Unhorse Sales, supra note 47, at 876. Unless the stock intellectual equipment is apt, it takes extra art or intuition to get proper results with it. Whereas if the stock intellectual equipment is apt, it takes extra ineptitude to get sad results with it. And the work of the artist, accomplished with poor intellectual equipment, is not clearly intelligible to the inept reader.... It does not help him focus issues.... [If the basic paradigm is inapt, good opinions are seen as uncharacteristic and not controlling.] They do not cumulate into stock equipment.... The getting of such stock equipment is a struggle. Id.
165. See, e.g., Llewellyn, The First Struggle to Unhorse Sales, supra note 47, at 876. Unless the stock intellectual equipment is apt, it takes extra art or intuition to get proper results with it. Whereas if the stock intellectual equipment is apt, it takes extra ineptitude to get sad results with it. And the work of the artist, accomplished with poor intellectual equipment, is not clearly intelligible to the inept reader.... It does not help him focus issues.... [If the basic paradigm is inapt, good opinions are seen as uncharacteristic and not controlling.] They do not cumulate into stock equipment.... The getting of such stock equipment is a struggle. Id.
166. LLEWELLYN, SALES, supra note 53, at 204. Elsewhere, Llewellyn illustrates this in detail by following the history of the institution of "factorage" in sales practice and the struggle of sales law to adapt to it. Llewellyn, The First Struggle to Unhorse Sales, supra note 47, at 883-94. Llewellyn's specific examples are now perhaps only of historic interest since sales practice (and, to a large part due to Llewellyn, law) has changed considerably in the last 55 years. For example, today the word "factoring" implies a certain type of account receivables financing. Late nineteenth and early twentieth century factors provided sales agent services, which sometimes also included the provision of credit to the merchant, and the concomitant taking of "factor's liens."
167. Llewellyn, Across Sales on Horseback, supra note 47, at 730-31.
168. Id. at 731.
169. Id. at 732.
170. Jeanne L. Schroeder, Never Jam To-day: On the Impossibility of Takings Jurisprudence, 84 GEO. L.J. 1531 (1996).
171. Hegel's analysis of the relationship between quality and quantity is extremely complex. Indeed, approximately one-third of his Logic is devoted to this subject. He discusses the narrower issue of how quantitative changes become qualitative ones in HEGEL, supra note 17, at 327-35.
172. This causes an insuperable problem for a bankruptcy analysis for an important financing device called "securitization." To oversimplify, in a securitization, a debtor assigns accounts or other intangibles to a financing party. Under Bankruptcy Code § 541(a)(1) the debtor's estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." This raises the question as to whether a financer must turn over to the debtor's trustee the assets transferred in a securitization. Most analysts who have studied this issue have presumed that the answer turns on whether or not the securitization was a true sale. They pre-sume that, if the transaction is a true sale, then the assignor no longer has any interest in the assets transferred. In my analysis, this is a red herring because it assumes that a sale is an event. If, instead, a sale is a process, a seller can retain interests in assets for a considerable period of time. See David G. Carlson, The Dubious Foundations of Securitization (1996) (unpublished manuscript).
173. See SCHROEDER, supra note 27; Schroeder, Bundle-O-Stix, supra note 3, at 295-99.
174. This seems to be the analysis proposed by Benjamin N. Cardozo when he coined the metaphor (which quickly became a cliche) that property is a "bundle of sticks." BENJAMIN N. CARDOZO, THE PARADOXES OF LEGAL SCIENCE 129 (1928). Cardozo recognized that the molecular legal conception we call property can be analytically broken down into constituent Hohfeldian atoms, and that at different times in our history, we may have defined different combinations of Hohfeldian conceptions as property. But this does not imply that property is incoherent or unidentifiable at any specific time in legal history. Elsewhere I have propounded the Hegelian view that the bundle of rights which our society recognizes as comprising property are not merely a historical contingency. Rather, the three traditional elements of property - possession, enjoyment, and alienation, understood in the broadest and most abstract sense - further the "logic" of property in the formation of human personality. See Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Legal Surrealism, supra note 34.
175. This seems to be the analysis proposed by Benjamin N. Cardozo when he coined the metaphor (which quickly became a cliche) that property is a "bundle of sticks." BENJAMIN N. CARDOZO, THE PARADOXES OF LEGAL SCIENCE 129 (1928). Cardozo recognized that the molecular legal conception we call property can be analytically broken down into constituent Hohfeldian atoms, and that at different times in our history, we may have defined different combinations of Hohfeldian conceptions as property. But this does not imply that property is incoherent or unidentifiable at any specific time in legal history. Elsewhere I have propounded the Hegelian view that the bundle of rights which our society recognizes as comprising property are not merely a historical contingency. Rather, the three traditional elements of property - possession, enjoyment, and alienation, understood in the broadest and most abstract sense - further the "logic" of property in the formation of human personality. See Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Legal Surrealism, supra note 34.
176. This seems to be the analysis proposed by Benjamin N. Cardozo when he coined the metaphor (which quickly became a cliche) that property is a "bundle of sticks." BENJAMIN N. CARDOZO, THE PARADOXES OF LEGAL SCIENCE 129 (1928). Cardozo recognized that the molecular legal conception we call property can be analytically broken down into constituent Hohfeldian atoms, and that at different times in our history, we may have defined different combinations of Hohfeldian conceptions as property. But this does not imply that property is incoherent or unidentifiable at any specific time in legal history. Elsewhere I have propounded the Hegelian view that the bundle of rights which our society recognizes as comprising property are not merely a historical contingency. Rather, the three traditional elements of property - possession, enjoyment, and alienation, understood in the broadest and most abstract sense - further the "logic" of property in the formation of human personality. See Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Legal Surrealism, supra note 34.
177. This seems to be the analysis proposed by Benjamin N. Cardozo when he coined the metaphor (which quickly became a cliche) that property is a "bundle of sticks." BENJAMIN N. CARDOZO, THE PARADOXES OF LEGAL SCIENCE 129 (1928). Cardozo recognized that the molecular legal conception we call property can be analytically broken down into constituent Hohfeldian atoms, and that at different times in our history, we may have defined different combinations of Hohfeldian conceptions as property. But this does not imply that property is incoherent or unidentifiable at any specific time in legal history. Elsewhere I have propounded the Hegelian view that the bundle of rights which our society recognizes as comprising property are not merely a historical contingency. Rather, the three traditional elements of property - possession, enjoyment, and alienation, understood in the broadest and most abstract sense - further the "logic" of property in the formation of human personality. See Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Legal Surrealism, supra note 34.
178. This seems to be the analysis proposed by Benjamin N. Cardozo when he coined the metaphor (which quickly became a cliche) that property is a "bundle of sticks." BENJAMIN N. CARDOZO, THE PARADOXES OF LEGAL SCIENCE 129 (1928). Cardozo recognized that the molecular legal conception we call property can be analytically broken down into constituent Hohfeldian atoms, and that at different times in our history, we may have defined different combinations of Hohfeldian conceptions as property. But this does not imply that property is incoherent or unidentifiable at any specific time in legal history. Elsewhere I have propounded the Hegelian view that the bundle of rights which our society recognizes as comprising property are not merely a historical contingency. Rather, the three traditional elements of property - possession, enjoyment, and alienation, understood in the broadest and most abstract sense - further the "logic" of property in the formation of human personality. See Schroeder, The Vestal and the Fasces, supra note 25; Schroeder, Virgin Territory, supra note 7; Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Legal Surrealism, supra note 34.
179. See supra text accompanying notes 48-51 for a discussion of Llewellyn's critique of common law of "Title."
180. LLEWELLYN, SALES, supra note 53, at 572. He continues, [i]t is clear that Hohfeld's analysis lies at the foundation of the narrow-issue analysis discussed above; such difference as there is, is only one of emphasis, of stressing narrow issues purely (Hohfeld) in terms of the single legal relation concerned, or (above) chiefly in terms of the economic significance of the issue. The Hohfeld approach is almost indispensable to clear statement of a narrow issue in its legal aspects. Id.
181. LLEWELLYN, SALES, supra note 53, at 572. He continues, [i]t is clear that Hohfeld's analysis lies at the foundation of the narrow-issue analysis discussed above; such difference as there is, is only one of emphasis, of stressing narrow issues purely (Hohfeld) in terms of the single legal relation concerned, or (above) chiefly in terms of the economic significance of the issue. The Hohfeld approach is almost indispensable to clear statement of a narrow issue in its legal aspects. Id.
182. Id. at 575.
183. U.C.C. § 2-105(2).
184. Id. § 9-203(1)(c); Bankruptcy Code § 547(e)(3).
185. U.C.C. § 9-503.
186. The basic remedy under Article 9 is to sell the collateral in a foreclosure sale. Id. §§ 9-504, 9-505.
187. If the collateral consists of a right of payment, the secured party has the alternate remedy of collecting the payment, rather than selling the collateral. Id. § 9-502. A secured party may also, under some circumstances, exercise the right of strict foreclosure under which it can become the "owner" of the collateral with full rights of possession, enjoyment, and alienation. Id. § 9-505(2).
188. Llewellyn was perfectly aware of the ludicrous connotations of his language choice. "Goods" is a friendly word, and will hobnob with either connotation [i.e. goods held for use value and goods held for exchange value], or indeed with both at once, and give it not a thought. It is we who shall have to remember how different the two connotations are. A certain Simon whom we met in childhood knew it. Though simple, and himself no trader, he yet perceived a pieman's pies as "ware." Llewellyn, Across Sales on Horseback, supra note 47, at 728. During this period, Llewellyn affected a calculatedly breezy, smart-alecky, writing style reminiscent of the wise-cracking movie dialogue popular in the 1930's. Although yesterday's modernisms sound merely quaint today, his writing retains much of its power to amuse and infuriate.
189. Llewellyn, Through Title to Contract, supra note 47, at 166-67.
190. See supra text accompanying notes 37-39.
191. U.C.C. § 11-201(37).
192. As emphasized by Arthur Corbin in an early defense of the then proposed Article 2, the article on sales does not even eschew the term "title." What it did do is avoid using it in the rigid and totemic fashion of the common law. Rather, it reflects a decision that since the word "title" is such a variable term - one that can create an illusion of certainty - the code drafter should use it "in a cheerful spirit, without fear and without reproach - without fear that others will give it any specific meaning that will cause misunderstanding, and without the reproaches that are sure to follow if he tries to require his readers to accept it with a specific and limited meaning." Arthur L. Corbin, The Uniform Commercial Code - Sales, Should It Be Enacted?, 59 YALE L.J. 27 821, 825 (1950). Consequently, no attempt is made to define the term "title".... the Code adopt[s] the "cheerful' alternative that is listed above;... [it does not] attempt a definition.... [The primary difference between Article 2 and the earlier Uniform Sales Act is that] the Code everywhere puts more emphasis upon the operative facts on which stated legal results depend and warns us that those legal results are not determined by such undefined concepts as 'title' or 'property in the goods.'" By such emphasis and warning, the attention of both merchant and lawyer are focussed on the vitally important factors and not on the undefined and inoperative concepts. Id. at 826-27.
193. As emphasized by Arthur Corbin in an early defense of the then proposed Article 2, the article on sales does not even eschew the term "title." What it did do is avoid using it in the rigid and totemic fashion of the common law. Rather, it reflects a decision that since the word "title" is such a variable term - one that can create an illusion of certainty - the code drafter should use it "in a cheerful spirit, without fear and without reproach - without fear that others will give it any specific meaning that will cause misunderstanding, and without the reproaches that are sure to follow if he tries to require his readers to accept it with a specific and limited meaning." Arthur L. Corbin, The Uniform Commercial Code - Sales, Should It Be Enacted?, 59 YALE L.J. 27 821, 825 (1950). Consequently, no attempt is made to define the term "title".... the Code adopt[s] the "cheerful' alternative that is listed above;... [it does not] attempt a definition.... [The primary difference between Article 2 and the earlier Uniform Sales Act is that] the Code everywhere puts more emphasis upon the operative facts on which stated legal results depend and warns us that those legal results are not determined by such undefined concepts as 'title' or 'property in the goods.'" By such emphasis and warning, the attention of both merchant and lawyer are focussed on the vitally important factors and not on the undefined and inoperative concepts. Id. at 826-27.
194. Elsewhere, I try to justify the objective requirement of property through Hegelian rather than liberal theory. See SCHROEDER, supra note 27; Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7; Schroeder, Legal Surrealism, supra note 34.
195. Elsewhere, I try to justify the objective requirement of property through Hegelian rather than liberal theory. See SCHROEDER, supra note 27; Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7; Schroeder, Legal Surrealism, supra note 34.
196. Elsewhere, I try to justify the objective requirement of property through Hegelian rather than liberal theory. See SCHROEDER, supra note 27; Schroeder, Bundle-O-Stix, supra note 3; Schroeder, Virgin Territory, supra note 7; Schroeder, Legal Surrealism, supra note 34.
197. See supra note 66 and accompanying text for a discussion of enforcement against third parties.
198. Llewellyn, Across Sales on Horseback, supra note 47, at 733.
199. Id. at 732.
200. Id. at 733.
201. Id. at 729. Llewellyn makes a similar analysis of trust receipts and reservation of title.
202. Id. at 730. [T]hese transactions can, for all their surface strangeness, claim as of right to be included in the law of Sales, because if carried to intended completion and fruition they will result in passage from a seller to a buyer of all those rights and other Hohfeldian desirabilities we know together as "property in specific goods." Id.
203. Id. at 730. [T]hese transactions can, for all their surface strangeness, claim as of right to be included in the law of Sales, because if carried to intended completion and fruition they will result in passage from a seller to a buyer of all those rights and other Hohfeldian desirabilities we know together as "property in specific goods." Id.
204. U.C.C. § 9-311.
205. For example, in some circumstances, a buyer in the ordinary course takes free of the claims of a party having a perfected security interest in goods. Id. § 9-307(1).
206. See supra text accompanying notes 121-23 for a discussion of the rights of secured parties.
207. See supra text accompanying notes 68-69. See also SCHROEDER, supra note 27; Schroeder, Legal Surrealism, supra note 34.
208. I am not arguing that there is any a priori reason why the debtor/buyer need be deemed the "owner." Actual decisions such as when property interests are deemed sufficiently objectively manifest as to be granted legal recognition, or how to allocate property interests, are matters of positive law, not jurisprudence, and can only be decided by practical reasoning rather than strict logic. I believe that in this specific case, the drafters of the U.C.C. made a pragmatic decision that although conditional sales and hypothecations are not identical, their objectively determinable allocation of certain important incidences of property are so similar that they should be given similar legal treatment. I am also not arguing that property theory demands that at any one time there must be a party designated as the "owner" of the property. It is merely the historically contingent fact in our legal system that we do so. One could imagine alternate approaches when property interests in the same res are divided, as in the cases of hypothecations and conditional sales. For example, we could have developed something similar to the common law estates. Under such an analysis neither the debtor or the secured party would be deemed to be the "owner" of the collateral in the sense of being the holder of the equivalent of fee simple absolute, but rather, they would have some limited interest or "estate" in the good. Actually, for some purposes we do so. We sometimes speak of the debtor owning the "equity" in collateral, to distinguish this from ownership free and clear. Similarly, even in states which have traditional mortgages rather than deeds of trust, consumers often colloquially speak of their mortgage bank as "owning" their houses. This reflects an intuitive understanding that a debtor's "ownership" of collateral subject to a security interest is not, substantively, equivalent to fee simple absolute.
209. Llewellyn, Across Sales on Horseback, supra note 47, at 730. Llewellyn had earlier raised a similar point in his casebook. LLEWELLYN, SALES, supra note 53, at 705. Elsewhere, Llewellyn raised the question of form and substance in the opposite case where the form of the contract purports to transfer title to the buyer, but the substantive elements of property remain in the seller. We turn now first of all to the more primitive situation where the dicker deals with existing goods, where the parties used language that looks like a present sale, and the question is: whether they have accomplished their apparent purpose. Here, as always, the first question is: Is this a present sale or a contract for sale. Only after that question is settled for the second of these alternatives, does the question arise: what obligation rests on S? And: what is the effect, under the contract, of S's acts of purported performance? Id. at 574.
210. Llewellyn, Across Sales on Horseback, supra note 47, at 730. Llewellyn had earlier raised a similar point in his casebook. LLEWELLYN, SALES, supra note 53, at 705. Elsewhere, Llewellyn raised the question of form and substance in the opposite case where the form of the contract purports to transfer title to the buyer, but the substantive elements of property remain in the seller. We turn now first of all to the more primitive situation where the dicker deals with existing goods, where the parties used language that looks like a present sale, and the question is: whether they have accomplished their apparent purpose. Here, as always, the first question is: Is this a present sale or a contract for sale. Only after that question is settled for the second of these alternatives, does the question arise: what obligation rests on S? And: what is the effect, under the contract, of S's acts of purported performance? Id. at 574.
211. Llewellyn, Across Sales on Horseback, supra note 47, at 730. Llewellyn had earlier raised a similar point in his casebook. LLEWELLYN, SALES, supra note 53, at 705. Elsewhere, Llewellyn raised the question of form and substance in the opposite case where the form of the contract purports to transfer title to the buyer, but the substantive elements of property remain in the seller. We turn now first of all to the more primitive situation where the dicker deals with existing goods, where the parties used language that looks like a present sale, and the question is: whether they have accomplished their apparent purpose. Here, as always, the first question is: Is this a present sale or a contract for sale. Only after that question is settled for the second of these alternatives, does the question arise: what obligation rests on S? And: what is the effect, under the contract, of S's acts of purported performance? Id. at 574.
212. See Schroeder, Legal Surrealism, supra note 34.
213. WILUAM SHAKESPEARE, As You LIKE IT act II, sc. 1, 13-14.
214. As well as for self-actualization within Hegelian political philosophy.
215. This is what distinguishes property rights from other legal rights. In other words, one can have legal rights between or among legal subjects which do not involve an external object, but these do not fall within the category of property.
216. This concept of the objective recognition of ownership with the right to control a res and to exclude others is what Hegel called "possession." See, e.g., id. at 66-67, §§ 18-19. The problem with ostensible ownership doctrine is that it assumes that physical custody in the sense of actual sensuous grasp of tangible things is the norm of objective recognition. I present my critique of ostensible ownership doctrine in Schroeder, Legal Surrealism, supra note 34.
217. Llewellyn, Across Sales on Horseback, supra note 47, at 733.
218. Llewellyn, Why a Commercial Code?, supra note 1, at 787.
219. Proposed U.C.C. § 2-401 cmt. 1 (quoted in Samuel Williston, The Law of Sales in the Proposed Uniform Commercial Code, 63 HARV. L. REV. 561, 568 (1950)).
220. See U.C.C. § 1-201(37) (1990). Whether a transaction creates a lease or security interest is determined by the facts of each case; however, a transaction creates a security interest if the consideration the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease not subject to termination by the lessee, and (a) the original term of the lease is equal to or greater than the remaining economic life of the goods, (b) the lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become the owner of the goods, (c) the lessee has an option to renew the lease for the remaining economic life of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement, or (d) the lessee has an option to become the owner of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement. Id.
221. GAAP distinguishes between "operating leases" (which are roughly equivalent to true leases under the U.C.C.) and "capital leases" (roughly equivalent to Article 9 security interests. If any one or more of the following factors is present, the lease is a capital lease: (1) Ownership of the property is transferred to the lessee at the end of the term of the lease. (2) The lease contains a bargain purchase option, a right to purchase the property at a price sufficiently below its expected fair value that the exercise of the option is reasonably assured. (3) At the inception of the lease, the lease term is substantially equal to the estimated economic life of the leased property. The test is met if the term is 75% or more of the property's estimated economic life. (4) The present value of the minimum lease payments as of the beginning of the lease term, with certain exclusions is 90% or more of the fair value of the property at the inception of the lease. Present value is generally determined by applying the lessee's borrowing rate to the stream of required lease payments. STANLEY SIEGEL & DAVID A. SIEGEL, ACCOUNTING AND FINANCIAL DISCLOSURE: A GUIDE TO BASIC CONCEPTS 72-73 (1983).
222. See, e.g., Frank Lyon Co. v. United States, 435 U.S. 561, 583-84 (1978) (finding that government was incorrect in characterizing agreement as lease when it was intended as mortgage).
223. This is the distinction which the admittedly confusing language of U.C.C. § 1-201(37) tries to capture.
224. Article 9 "applies to security interests created by contract." U.C.C. § 9-102(2). Section 9-203 makes a security agreement one of the elements of attachment and enforceability of a security interest. Id. § 9-203(1)(a).
225. See, e.g., Carlson v. Tandy Computer Leasing, 803 F.2d 391, 395 (8th Cir. 1986) (determining that parties subjective intent was factor to be considered under § 201(37)).
226. See, e.g., Cohen v. Army Moral Support Fund (In re Bevill, Bresler & Schulman Asset Management Corp.), 67 B.R. 557, 596-97 (Bankr. D.N.J. 1986). See also Jeanne L. Schroeder, Repo Madness: Repurchase Agreements in Bankruptcy, 46 SYRACUSE L. REV. 999, 1010-16 (1996) (dicussing case law pertaining to "repos" as non-secured and as secured loans).
227. U.C.C. § 9-102(2). Consequently, one of the elements of attachment and enforceability of a security interest is that there be an agreement between the parties. Id. §§ 8-321(2), 9-203(1)(a).
228. With certain exceptions such as judicial liens, the state's right of eminent domain and good faith purchaser rules.
229. U.C.C. § 1-201(37) (1977).
230. U.C.C. § 1-201(37) (1987).
231. See supra text accompanying notes 78-88.
232. Llewellyn makes precisely this point that it does not follow that because the risk of loss normally falls upon the "owner" when ownership is not in dispute or in a state of transition, that risk of loss is itself an incidence of property which must follow "Title." "We should know what we meant by saying "owner." We should think in comfort as we can think about two neighbor-ing farmers and their hay stacks. If lightning strikes one stack, it is plain whose is the loss." Llewellyn, Across Sales on Horseback, supra note 47, at 731.
233. Id. at 732.
234. Of course, in many cases this loss will be covered by insurance, and this raises the difficult question of who ultimately pays for insurance. Your premiums for wine stain insurance go up because of my clumsiness. Since the first draft of this Article was written I have replaced my white couch with a burgundy colored one.
235. A similar question arose recently when the drafters of Article 2A had to consider application of the rule in one common situation when property rights are divided in a good. That is, in leases when one party - the lessor - has title in the goods, the right to use the good in the sense of receiving rents, the right to alienate the good in the sense of selling his ownership, and the right to physically possess the good at the end of the lease term and earlier upon default of the lessee; and the other party - the lessee, is not deemed owner of the good itself, but has the property rights to physically possess and use the goods during the lease term, but conditioned and the payment of rent, and may have the right to alienate his leasehold through assignment or sublease.
236. This general rule is set forth in U.C.C. §§ 2-403(1) (goods); 3-203(b) (instruments); 7-504(1) (documents); and 8-301(1) (investment securities).
237. Jeanne L. Schroeder, Is Article 8 Finally Ready This Time?: The Radical Reform of Secured Lending on Wall Street, 1994 COLUM. Bus. L. REV. 291, 296-97 n.6 [hereinafter Schroeder, Is Article 8 Finally Ready?]. This is the terminology adopted by Baird & Jackson in their securities interest case book. DOUGLAS G. BAIRD & THOMAS H. JACKSON, SECURITY INTERESTS IN PERSONAL PROPERTY: CASES PROBLEMS, AND MATERIALS 4 (2d ed. 1987). The principle is sometimes known as the rule of "nemo dot quod non habet." E. ALLAN FARNSWORTH ET AL., COMMERCIAL LAW: CASES AND MATERIALS 28 (5th ed. 1993).
238. Jeanne L. Schroeder, Is Article 8 Finally Ready This Time?: The Radical Reform of Secured Lending on Wall Street, 1994 COLUM. Bus. L. REV. 291, 296-97 n.6 [hereinafter Schroeder, Is Article 8 Finally Ready?]. This is the terminology adopted by Baird & Jackson in their securities interest case book. DOUGLAS G. BAIRD & THOMAS H. JACKSON, SECURITY INTERESTS IN PERSONAL PROPERTY: CASES PROBLEMS, AND MATERIALS 4 (2d ed. 1987). The principle is sometimes known as the rule of "nemo dot quod non habet." E. ALLAN FARNSWORTH ET AL., COMMERCIAL LAW: CASES AND MATERIALS 28 (5th ed. 1993).
239. Jeanne L. Schroeder, Is Article 8 Finally Ready This Time?: The Radical Reform of Secured Lending on Wall Street, 1994 COLUM. Bus. L. REV. 291, 296-97 n.6 [hereinafter Schroeder, Is Article 8 Finally Ready?]. This is the terminology adopted by Baird & Jackson in their securities interest case book. DOUGLAS G. BAIRD & THOMAS H. JACKSON, SECURITY INTERESTS IN PERSONAL PROPERTY: CASES PROBLEMS, AND MATERIALS 4 (2d ed. 1987). The principle is sometimes known as the rule of "nemo dot quod non habet." E. ALLAN FARNSWORTH ET AL., COMMERCIAL LAW: CASES AND MATERIALS 28 (5th ed. 1993).
240. Once again, this is the Baird & Jackson terminology. BAIRD & JACKSON, supra note 167, at 6. Farnsworth refers to this principal as the rule of "possession vaut titre." FARNSWORTH ET AL., supra note 167, at 28. Mooney and Rogers use the term "negotiability" more narrowly to refer specifically to the regime of negotiable instruments, documents, and certificated securities in which obligations are reified into pieces of paper which must be literally grasped by the prevailing party. Charles W. Mooney, Jr., Beyond Negotiability: A New Model for Transfer and Pledge of Interests in Securities Controlled by Intermediaries, 12 CARDOZO L. REV. 305 (1990); James S. Rogers, Negotiability, Property, Identity, 12 CARDOZO L. REV. 471 (1990).
241. Once again, this is the Baird & Jackson terminology. BAIRD & JACKSON, supra note 167, at 6. Farnsworth refers to this principal as the rule of "possession vaut titre." FARNSWORTH ET AL., supra note 167, at 28. Mooney and Rogers use the term "negotiability" more narrowly to refer specifically to the regime of negotiable instruments, documents, and certificated securities in which obligations are reified into pieces of paper which must be literally grasped by the prevailing party. Charles W. Mooney, Jr., Beyond Negotiability: A New Model for Transfer and Pledge of Interests in Securities Controlled by Intermediaries, 12 CARDOZO L. REV. 305 (1990); James S. Rogers, Negotiability, Property, Identity, 12 CARDOZO L. REV. 471 (1990).
242. As I discuss in Schroeder, Is Article 8 Finally Ready?, supra note 167, at 298, the 1994 Amendments to Article 8 reverse the usual conveyancing regime when the property in question are securities or other investment properties held indirectly through brokers and other securities intermediaries. In what I have called a proposed "super-negotiability" regime, the negotiation principle is the default rule. That is, the second-in-time claimant will prevail over the first-in-time claimant unless the original owner can establish the derivation exception by showing that the second-in-time claimant colluded with the intermediary in violation of the first-in-time claimant's rights. As of the date of this Article only 13 states have adopted these amendments. Of course, the fact that the U.C.C. is generally structured so that the derivation rule is the default rule and the negotiation rule the exception does not mean that as an empirical matter the former is the norm and the latter is rare. For example, the holder in due course negotiation rule of Article 3 probably governs the great majority of conveyances of checks. U.C.C. § 3-302. Moreover, in some cases (such as the priority rule with respect to unperfected security interests) the negotiation "exceptions" all but eat up the derivation "norm."
243. The other elements of negotiation rules are usually some favorable mental state (such as good faith and/or lack of notice) and participation in appropriate market transactions (such as payment of value and, sometimes, additional requirements such as buying in the ordinary course, or taking by negotiation).
244. A "holder" is defined as someone "in possession" of an instrument or document either in bearer form, or payable to the possessor's order, or with all appropriate indorsements. U.C.C. § 1-201(20). The term "possession" is never defined, but in context it is quite clear that it is intended to mean physical custody by the holder, or her agent. See Schroeder, Legal Surrealism, supra note 34. The Article has been amended to permit presentment to "be made by any commercially reasonable means, including an oral, written or electronic communication," U.C.C. § 3-501(b)(1), but still provides that upon demand, the person making presentment must "exhibit the instrument," id. § 3-501(b)(2)(i). As is common knowledge, our check clearing system requires that written checks be physically transferred to the paying bank. This was less obvious, but no less true, in the case of the law of investment securities prior to the 1994 amendments to Article 8. As I analyze in exhaustive detail elsewhere, see Schroeder, Is Article 8 Finally Ready?, supra note 167, at 303-12, 323-34, most investors today do not take physical custody of security certificates. Rather, they hold their portfolios indirectly through a chain of financial intermediaries capped by a central depositary who has physical custody of the certificates. Although old Article 8 contemplatee totally intangible "uncertificated securities," in fact, uncertificated securities are rarely issued by private business entities and are rarely publicly traded. Jeanne L. Schroeder & David G. Carlson, Security Interests in Investment Securities, 12 CARDOZO L. REV. 557, 559-63 (1990). Nevertheless, pre-1994 Article 8 assumed that physical possession of certificates is the norm and analogized not only the complex multi-tier indirect ownership system, but the law of uncertificated securities, to physical custody through agents and bailees. Schroeder, Is Article 8 Finally Ready?, supra note 167, at 303-22, 328-49. In 1994, the Permanent Editorial Board of the U.C.C. made sweeping revisions of Article 8 intended precisely to eliminate this longstanding physical metaphor in the law of securities transfer. Id. at 329-30,349-76. Nevertheless, as of the date of this Article's publication the old Article 8 remains in effect in a majority of jurisdictions.
245. A "holder" is defined as someone "in possession" of an instrument or document either in bearer form, or payable to the possessor's order, or with all appropriate indorsements. U.C.C. § 1-201(20). The term "possession" is never defined, but in context it is quite clear that it is intended to mean physical custody by the holder, or her agent. See Schroeder, Legal Surrealism, supra note 34. The Article has been amended to permit presentment to "be made by any commercially reasonable means, including an oral, written or electronic communication," U.C.C. § 3-501(b)(1), but still provides that upon demand, the person making presentment must "exhibit the instrument," id. § 3-501(b)(2)(i). As is common knowledge, our check clearing system requires that written checks be physically transferred to the paying bank. This was less obvious, but no less true, in the case of the law of investment securities prior to the 1994 amendments to Article 8. As I analyze in exhaustive detail elsewhere, see Schroeder, Is Article 8 Finally Ready?, supra note 167, at 303-12, 323-34, most investors today do not take physical custody of security certificates. Rather, they hold their portfolios indirectly through a chain of financial intermediaries capped by a central depositary who has physical custody of the certificates. Although old Article 8 contemplatee totally intangible "uncertificated securities," in fact, uncertificated securities are rarely issued by private business entities and are rarely publicly traded. Jeanne L. Schroeder & David G. Carlson, Security Interests in Investment Securities, 12 CARDOZO L. REV. 557, 559-63 (1990). Nevertheless, pre-1994 Article 8 assumed that physical possession of certificates is the norm and analogized not only the complex multi-tier indirect ownership system, but the law of uncertificated securities, to physical custody through agents and bailees. Schroeder, Is Article 8 Finally Ready?, supra note 167, at 303-22, 328-49. In 1994, the Permanent Editorial Board of the U.C.C. made sweeping revisions of Article 8 intended precisely to eliminate this longstanding physical metaphor in the law of securities transfer. Id. at 329-30,349-76. Nevertheless, as of the date of this Article's publication the old Article 8 remains in effect in a majority of jurisdictions.
246. A "holder" is defined as someone "in possession" of an instrument or document either in bearer form, or payable to the possessor's order, or with all appropriate indorsements. U.C.C. § 1-201(20). The term "possession" is never defined, but in context it is quite clear that it is intended to mean physical custody by the holder, or her agent. See Schroeder, Legal Surrealism, supra note 34. The Article has been amended to permit presentment to "be made by any commercially reasonable means, including an oral, written or electronic communication," U.C.C. § 3-501(b)(1), but still provides that upon demand, the person making presentment must "exhibit the instrument," id. § 3-501(b)(2)(i). As is common knowledge, our check clearing system requires that written checks be physically transferred to the paying bank. This was less obvious, but no less true, in the case of the law of investment securities prior to the 1994 amendments to Article 8. As I analyze in exhaustive detail elsewhere, see Schroeder, Is Article 8 Finally Ready?, supra note 167, at 303-12, 323-34, most investors today do not take physical custody of security certificates. Rather, they hold their portfolios indirectly through a chain of financial intermediaries capped by a central depositary who has physical custody of the certificates. Although old Article 8 contemplatee totally intangible "uncertificated securities," in fact, uncertificated securities are rarely issued by private business entities and are rarely publicly traded. Jeanne L. Schroeder & David G. Carlson, Security Interests in Investment Securities, 12 CARDOZO L. REV. 557, 559-63 (1990). Nevertheless, pre-1994 Article 8 assumed that physical possession of certificates is the norm and analogized not only the complex multi-tier indirect ownership system, but the law of uncertificated securities, to physical custody through agents and bailees. Schroeder, Is Article 8 Finally Ready?, supra note 167, at 303-22, 328-49. In 1994, the Permanent Editorial Board of the U.C.C. made sweeping revisions of Article 8 intended precisely to eliminate this longstanding physical metaphor in the law of securities transfer. Id. at 329-30,349-76. Nevertheless, as of the date of this Article's publication the old Article 8 remains in effect in a majority of jurisdictions.
247. A "holder" is defined as someone "in possession" of an instrument or document either in bearer form, or payable to the possessor's order, or with all appropriate indorsements. U.C.C. § 1-201(20). The term "possession" is never defined, but in context it is quite clear that it is intended to mean physical custody by the holder, or her agent. See Schroeder, Legal Surrealism, supra note 34. The Article has been amended to permit presentment to "be made by any commercially reasonable means, including an oral, written or electronic communication," U.C.C. § 3-501(b)(1), but still provides that upon demand, the person making presentment must "exhibit the instrument," id. § 3-501(b)(2)(i). As is common knowledge, our check clearing system requires that written checks be physically transferred to the paying bank. This was less obvious, but no less true, in the
248. A "holder" is defined as someone "in possession" of an instrument or document either in bearer form, or payable to the possessor's order, or with all appropriate indorsements. U.C.C. § 1-201(20). The term "possession" is never defined, but in context it is quite clear that it is intended to mean physical custody by the holder, or her agent. See Schroeder, Legal Surrealism, supra note 34. The Article has been amended to permit presentment to "be made by any commercially reasonable means, including an oral, written or electronic communication," U.C.C. § 3-501(b)(1), but still provides that upon demand, the person making presentment must "exhibit the instrument," id. § 3-501(b)(2)(i). As is common knowledge, our check clearing system requires that written checks be physically transferred to the paying bank. This was less obvious, but no less true, in the case of the law of investment securities prior to the 1994 amendments to Article 8. As I analyze in exhaustive detail elsewhere, see Schroeder, Is Article 8 Finally Ready?, supra note 167, at 303-12, 323-34, most investors today do not take physical custody of security certificates. Rather, they hold their portfolios indirectly through a chain of financial intermediaries capped by a central depositary who has physical custody of the certificates. Although old Article 8 contemplatee totally intangible "uncertificated securities," in fact, uncertificated securities are rarely issued by private business entities and are rarely publicly traded. Jeanne L. Schroeder & David G. Carlson, Security Interests in Investment Securities, 12 CARDOZO L. REV. 557, 559-63 (1990). Nevertheless, pre-1994 Article 8 assumed that physical possession of certificates is the norm and analogized not only the complex multi-tier indirect ownership system, but the law of uncertificated securities, to physical custody through agents and bailees. Schroeder, Is Article 8 Finally Ready?, supra note 167, at 303-22, 328-49. In 1994, the Permanent Editorial Board of the U.C.C. made sweeping revisions of Article 8 intended precisely to eliminate this longstanding physical metaphor in the law of securities transfer. Id. at 329-30,349-76. Nevertheless, as of the date of this Article's publication the old Article 8 remains in effect in a majority of jurisdictions.
249. SCHROEDER, supra note 27; Schroeder, Legal Surrealism, supra note 34.
250. 350 N.E.2d 590 (N.Y. 1976).
251. New Article 2A, which has been adopted in most, but not all, states, governs leases of goods and contains derivation and negotiation provisions which track the language of their Article 2 and Article 9 counterparts. I will not, therefore, separately discuss them.
252. In certain circumstances, U.C.C. § 2-326(3) permits the consignor to protect itself by taking certain actions, such as filing under U.C.C. § 9-114.
253. The schema of Article 9 is more complex than that of Article 2 because of the concept of perfection. Section 9-201 provides that security agreements are enforceable not only between the debtor and the secured party, but against subsequent second-in-time claimants of the collateral. In other words, the rights of subsequent transferees derive from the debtor's rights and are subject to the first-in-time property claims of the secured party. Despite this, unless a security interest is perfected, the effect of the priority rules of § 9-301 is that the negotiation which is the exception in theory, is closer to the norm in application. Perfection returns the derivation rule back to its default position by favoring a first-in-time secured party over second-in-time lien creditors, and many second-in-time secured parties and purchasers. I discuss the rationale for perfection within the Hegelian understanding of perfection in Schroeder, Legal Surrealism, supra note 34, at 510-21.
254. U.C.C. § 9-307(2) also contains a limited exception whereby a consumer buying consumer goods from another consumer takes the goods free of any security interests which have been perfected by a means other than filing (i.e., automatically perfected purchase money security interests in consumer goods).
255. What this means is that the original claimant, whether or not the owner of the secured party, may not replevy or foreclose on the goods ßin the handsß of the transferee and has only contract or tort claims against the transferor. Where the first-in-time claimant is a secured party, in addition to this contract right, it has a security interest in any proceeds from the sale in the hands of the debtor-transferor. Id. § 9-306(2).
256. Id. §2-403(3). As I discuss in Schroeder, Legal Surrealism, supra note 34, the U.C.C. never defines the word "possession" and assumes that its meaning is self-evident. In context, "possession" seems usually to be used as short-hand for "physical custody." I argue that in application this seemingly intuitive and simple concept is, in fact, extremely ambiguous.
257. Prior to the U.C.C., the entrustment doctrine was limited to one specific form of entrustment - consignments. In a consignment the entrustor surrenders possession in the expectation that a sale will occur: i.e., either the consignor is to sell the entrusted good to a third party as the owner's sales agent, or the consignor herself will buy the good after a tryout period. See BLACK'S LAW DICTIONARY 307 (6th ed. 1990). If a consignee breached the consignment contract by selling the goods in an unauthorized manner, the consignor can not complain that a sale occurred, but can only sue the consignee for breach of contract. For example, the sales agent sells the good at a price less than the one demanded by the consignor, or the consignee who was the consignor's intended purchaser transfers the good to a third party rather than buying it herself.
258. This was Homer Kripke's contention. Homer Kripke, Should Section 9-307(I) of the Uniform Commercial Code Apply Against a Secured Party in Possession?, 33 Bus. LAW. 153, 153-62 (1977).
259. 350 N.E.2d 590 (N.Y. 1976).
260. Id. at 591.
261. Id. at 592. In this case, the secured party was a producer of unfinished fabrics known as "greige goods." The secured creditor would sell its greige goods to fabric finishers who would further process and resell the fabric. Id. at 591. Frequently, as in this case, these sales would be on credit with the seller retaining a purchase money security interest ("PMSI"). The parties stipulated that, since fabric finishers tend not to have storage facilities, it is customary for sellers to store and hold the greige goods on behalf of finishers and deliver them when called for on an as needed basis. And such were the facts of this case where the first buyer and PMSI debtor left the greige goods with the seller/secured party. After having sold out its entire run of one type of greige goods, the seller/secured party was approached by a second potential buyer. The seller/secured party suggested to this second buyer that the first buyer may be willing to resell some of the greige goods which still sat in the seller/secured party's warehouse. The two buyers eventually entered into the resale agreement recommended by the seller/ secured party. Once again, this buyer stored the greige goods with the secured party. Apparently, the seller/secured party approved of the transaction since, after the sale, it obeyed the delivery instructions from the second buyer. Nevertheless, at the time the first buyer defaulted on its purchase money obligation some of the greige goods sold to the second buyer remained in the custody of the seller/secured party. When the seller/secured party tried to foreclose on the greige goods, the second buyer claimed to be a buyer in the ordinary course of business who cut off the prior claims of the secured party. The court agreed with the second secured party. Although Tanbro's primary business was the sale of finished goods, it also resold excess greige goods with enough regularity to be considered a merchant who deals in greige goods. The court also found that this transaction was common in the fabric finishing business so that the buyer was a buyer in the ordinary course of business who took free of the possessory secured party's security interest. One of the great mysteries of this case is why the court relied on this novel theory rather than holding that this was an authorized disposition within the meaning of U.C.C. § 9-306(2). John Dolan suggested that the manufacturer's salespeople "unwittingly invited the [buyer] to make the very purchase that triggered the dispute." John F. Dolan, The Uniform Commercial Code and the Concept of Possession in the Marketing and Financing of Goods, 56 TEX. L. REV. 1147 (1978). The reported opinion suggests, however, that this invitation may have been regretted after the fact, but hardly unwitting when made. Tanbro, 350 N.E.2d at 591-92. The decision states that the secured party suggested the resale, introduced the reseller to the buyer for the purpose of the resale, not merely knew of, but acknowledged, the sale, and even delivered part of the resold goods to the buyer. Id. at 591. See also infra note 189. I can only assume that the actual facts were not as clear as the opinion suggests so that the buyer's lawyers did not push this obvious and simple argument.
262. In their case book Baird & Jackson analyze four complex cases which they argue really represent variations on the same problem - buyers, creditors, and other persons who take from a non-possessory buyer v. creditors of a possessory seller. Of course, their analysis illustrates the problem of reasoning by analogy. At one level of generalization, all cases relating to priority disputes are the same, but at another level of specification, no two cases are alike. See BAIRD & JACKSON, supra note 167.
263. See, e.g., Kripke, supra note 177, at 153-54; Harold F. Birnbaum, Section 9-307(1) of the Uniform Commercial Code Versus Possessory Security Interests - A Reply to Professor Homer Kripke, 33 Bus. LAW. 2607 (1978); Samuel Gottlieb, Section 9-307(1) and Tanbro Fabrics: A Further Response, 33 Bus. LAW. 2611 (1978). See also the correspondence between Kripke and Judges Braucher and Breitel reproduced in BAIRD & JACKSON, supra note 163, at 701-02.
264. See, e.g., Kripke, supra note 177, at 153-54; Harold F. Birnbaum, Section 9-307(1) of the Uniform Commercial Code Versus Possessory Security Interests - A Reply to Professor Homer Kripke, 33 Bus. LAW. 2607 (1978); Samuel Gottlieb, Section 9-307(1) and Tanbro Fabrics: A Further Response, 33 Bus. LAW. 2611 (1978). See also the correspondence between Kripke and Judges Braucher and Breitel reproduced in BAIRD & JACKSON, supra note 163, at 701-02.
265. The American Law Institute and the National Conference of Commisioners for Uniform State Law have appointed a committee to consider amendments to Article 9. One of the issues raised in the most recent discussion draft is whether or not to continue the Tanbro rule or to make physical custody by the debtor-seller an express element in U.C.C. § 9-307(1).
266. See Kripke, supra note 181, at 153-62.
267. Coincidentally, a student in my Fall 1994 Secured Transactions class had been a dealer in greige goods prior to entering law school. He confirmed that the transaction in Tanbro was not merely common, it was virtually universal and that this was common knowledge among both the textile, and the textile financing, industries. He thought that the possessing secured party was "double-dealing" and clearly in the wrong, given industry practice.
268. Other exceptions to Article 9's derivation rule for perfected security interests are similarly, either expressly or implicitly, custody oriented. Security interests in negotiable instruments and documents can only be perfected by physical custody. This is, of course, a subset of the general holder in due course rules and will not be discussed here. More interesting is the superpriority rule for custodial interests in chattel paper. Chattel paper can be described as a piece of paper (or collection of papers) which evidence both an interest in a good, and a monetary obligation. The two types of commercial paper are security interests and leases. U.C.C. § 9-105(1)(b). The terms are only useful in two tier transactions. That is, if I were to finance the acquisition of a car either by taking out a car loan and granting a security interest in the car to the lender, or by entering into a long term lease, the contract I signed is chattel paper, but it is not necessary to do so to analyze my legal relationship with my financer. My financing documentation becomes "chattel paper" when my financer, in turn, seeks financing from a third party backed by its rights against me. This can be done by either taking a loan from the third party and granting a security interest in my obligation or by selling (i.e. factoring) my obligation to the third party. These transactions are notoriously tricky to think about so to keep the parties straight the U.C.C. adopts new language. My obligations to my financer in the context of discussing my financer's legal relationship with its factor is called chattel paper. Vis a vis the factor I am not a "debtor," my financer is the "debtor," I am now the "account debtor" of the chattel paper. Now, chattel paper is frequently, or usually, nonnegotiable. Chattel paper, like any other written contract, may just be evidence of the legal relationship between the parties called a contract or a lease. I say chattel paper is "usually" nonnegotiable because, of course, chattel paper may also consist in part of a negotiable promissory note. For example, in my car example I would probably be required to sign a promissory note evidencing my monetary obligation, and a separate security agreement evidencing the grant of the security interest. In the case of consumer sales, FTC Rules might make it a violation of fair trade practices if the seller of the car asked me to sign a negotiable promissory note which did not bear the required legend putting subsequent holders on notice of any defenses I might have against the seller (insuring that no subsequent holder can become a holder in due course who takes free of such defenses). Despite this, and despite the usual rule of first-in-time, first-in-right governing rival perfected security interests, purchasers of chattel paper who give new value and take physical custody of it in the ordinary course of his business have priority over two categories of rival security interests: security interests who perfect by filing, but only if the custodial secured party had no knowledge of the interest in the specific piece of paper; and secured parties claiming the interest merely as proceeds of inventory, regardless of knowledge. In the first case, the metaphoric possession by filing is deemed not sufficient to trump actual physical custody. In this case the mere opportunity of the custodian to see the metaphoric possession (i.e., the possibility of seeing the metaphoric possession by searching the records) must be strengthened by actually making the custodian see it (i.e., actual knowledge). The usual way of doing this is for the noncustodial secured party to place a legend on the chattel paper. When the rival secured party tries to take custody, he will actually physically see the other parties ownership.
269. See Schroeder, Subject: Object, supra note 68, at 17-24 (discussing community definition of property); Schroeder,Abduction from the Seraglio, supra note 68, at 162-67 (analyzing Popper's and Kuhn's theories of origin, hypotheses, and science).
270. See Schroeder, Subject: Object, supra note 68, at 17-24 (discussing community definition of property); Schroeder,Abduction from the Seraglio, supra note 68, at 162-67 (analyzing Popper's and Kuhn's theories of origin, hypotheses, and science).
271. U.C.C. §§ 9-302(1)(a), 9-305.
272. In Schroeder, Legal Surrealism, supra note 34, at 485-504,I challenge ostensible ownership policy on both factual and theoretical grounds. Factually, I believe that this empirical assumption is archaic and inaccurate.
273. 49 U.S.C. § 44107-44108 (1994); 14 C.F.R. § 49 (1996). See Jeanne L. Schroeder & David G. Carlson, Airplanes in Bankruptcy, 3 J. BANKR. L. & PRAC. 203, 217, 254-59 (1994) (discussing rights of unprotected security interests under Bankruptcy Code and its application to aircraft). Consequently, the Supreme Court has held that possession, in the sense of physical custody, can not constitute perfection of a security interest in aircraft. Philko Aviation, Inc. v. Shacket, 462 U.S. 406, 412 (1983).
274. Under Article 9, filing is the default rule - it is the required perfection formality unless otherwise provided. U.C.C. § 9-302(1).
275. The concept of objectivity as intersubjectivity falls within my defined term "Community Objectivity." Schroeder, Subject: Object, supra note 68, at 17.
276. Llewellyn, Realism, supra note 10, at 1222.
277. Id. at 1223.
278. See Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151, 1243 (1985) for a discussion of Llewellyn's assumptions concerning the difference between language and reality. Consequently, Dennis Patterson is incorrect in maintaining that Llewellyn was a Wittgensteinian. See, e.g., Dennis M. Patterson, Good Faith, Lender Liability, and Discretionary Acceleration: Of Llewellyn, Wittgenstein and the Uniform Commercial Code, 68 TEX. L. REV. 169, 204-09 (1989) (discussing Llewellyn and Wittgenstein); Dennis M. Patterson, Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine, 137 U. PA. L. REV. 335, 374-79 (1988). Llewllyn's approach may be contrasted with Jeremy Bentham's. Although Bentham is famous (or infamous) for identifying reality only with physical existence, in his Theory of Fictions he distinguished between "fictitious entities" and "imaginary fabrications." See C.K. OGDEN, BENTHAM'S THEORY OF FICTIONS (AMS Press 1978) (1932). The former includes legal fictions such as contracts or corporations which have a certain type of reality in that they function. The latter includes things like unicorns. See SLAVOJ ZIZEK, TARRYING WITH THE NEGATIVE: KANT, HEGEL AND THE CRITIQUE OF IDEOLOGY 87 (1993). Lacan was influenced by Bentham's theory of fictions in the development of his own ideas. In the words of Zizek, "Lacan was fully justified in maintaining that Bentham was the first who realized that truth has the structure of a fiction: the dimension of truth is opened up by the order of discourse which loses its consistency without the support of fictions." Id. at 88.
279. See Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151, 1243 (1985) for a discussion of Llewellyn's assumptions concerning the difference between language and reality. Consequently, Dennis Patterson is incorrect in maintaining that Llewellyn was a Wittgensteinian. See, e.g., Dennis M. Patterson, Good Faith, Lender Liability, and Discretionary Acceleration: Of Llewellyn, Wittgenstein and the Uniform Commercial Code, 68 TEX. L. REV. 169, 204-09 (1989) (discussing Llewellyn and Wittgenstein); Dennis M. Patterson, Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine, 137 U. PA. L. REV. 335, 374-79 (1988). Llewllyn's approach may be contrasted with Jeremy Bentham's. Although Bentham is famous (or infamous) for identifying reality only with physical existence, in his Theory of Fictions he distinguished between "fictitious entities" and "imaginary fabrications." See C.K. OGDEN, BENTHAM'S THEORY OF FICTIONS (AMS Press 1978) (1932). The former includes legal fictions such as contracts or corporations which have a certain type of reality in that they function. The latter includes things like unicorns. See SLAVOJ ZIZEK, TARRYING WITH THE NEGATIVE: KANT, HEGEL AND THE CRITIQUE OF IDEOLOGY 87 (1993). Lacan was influenced by Bentham's theory of fictions in the development of his own ideas. In the words of Zizek, "Lacan was fully justified in maintaining that Bentham was the first who realized that truth has the structure of a fiction: the dimension of truth is opened up by the order of discourse which loses its consistency without the support of fictions." Id. at 88.
280. See Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151, 1243 (1985) for a discussion of Llewellyn's assumptions concerning the difference between language and reality. Consequently, Dennis Patterson is incorrect in maintaining that Llewellyn was a Wittgensteinian. See, e.g., Dennis M. Patterson, Good Faith, Lender Liability, and Discretionary Acceleration: Of Llewellyn, Wittgenstein and the Uniform Commercial Code, 68 TEX. L. REV. 169, 204-09 (1989) (discussing Llewellyn and Wittgenstein); Dennis M. Patterson, Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine, 137 U. PA. L. REV. 335, 374-79 (1988). Llewllyn's approach may be contrasted with Jeremy Bentham's. Although Bentham is famous (or infamous) for identifying reality only with physical existence, in his Theory of Fictions he distinguished between "fictitious entities" and "imaginary fabrications." See C.K. OGDEN, BENTHAM'S THEORY OF FICTIONS (AMS Press 1978) (1932). The former includes legal fictions such as contracts or corporations which have a certain type of reality in that they function. The latter includes things like unicorns. See SLAVOJ ZIZEK, TARRYING WITH THE NEGATIVE: KANT, HEGEL AND THE CRITIQUE OF IDEOLOGY 87 (1993). Lacan was influenced by Bentham's theory of fictions in the development of his own ideas. In the words of Zizek, "Lacan was fully justified in maintaining that Bentham was the first who realized that truth has the structure of a fiction: the dimension of truth is opened up by the order of discourse which loses its consistency without the support of fictions." Id. at 88.
281. See Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151, 1243 (1985) for a discussion of Llewellyn's assumptions concerning the difference between language and reality. Consequently, Dennis Patterson is incorrect in maintaining that Llewellyn was a Wittgensteinian. See, e.g., Dennis M. Patterson, Good Faith, Lender Liability, and Discretionary Acceleration: Of Llewellyn, Wittgenstein and the Uniform Commercial Code, 68 TEX. L. REV. 169, 204-09 (1989) (discussing Llewellyn and Wittgenstein); Dennis M. Patterson, Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine, 137 U. PA. L. REV. 335, 374-79 (1988). Llewllyn's approach may be contrasted with Jeremy Bentham's. Although Bentham is famous (or infamous) for identifying reality only with physical existence, in his Theory of Fictions he distinguished between "fictitious entities" and "imaginary fabrications." See C.K. OGDEN, BENTHAM'S THEORY OF FICTIONS (AMS Press 1978) (1932). The former includes legal fictions such as contracts or corporations which have a certain type of reality in that they function. The latter includes things like unicorns. See SLAVOJ ZIZEK, TARRYING WITH THE NEGATIVE: KANT, HEGEL AND THE CRITIQUE OF IDEOLOGY 87 (1993). Lacan was influenced by Bentham's theory of fictions in the development of his own ideas. In the words of Zizek, "Lacan was fully justified in maintaining that Bentham was the first who realized that truth has the structure of a fiction: the dimension of truth is opened up by the order of discourse which loses its consistency without the support of fictions." Id. at 88.
282. See Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151, 1243 (1985) for a discussion of Llewellyn's assumptions concerning the difference between language and reality. Consequently, Dennis Patterson is incorrect in maintaining that Llewellyn was a Wittgensteinian. See, e.g., Dennis M. Patterson, Good Faith, Lender Liability, and Discretionary Acceleration: Of Llewellyn, Wittgenstein and the Uniform Commercial Code, 68 TEX. L. REV. 169, 204-09 (1989) (discussing Llewellyn and Wittgenstein); Dennis M. Patterson, Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine, 137 U. PA. L. REV. 335, 374-79 (1988). Llewllyn's approach may be contrasted with Jeremy Bentham's. Although Bentham is famous (or infamous) for identifying reality only with physical existence, in his Theory of Fictions he distinguished between "fictitious entities" and "imaginary fabrications." See C.K. OGDEN, BENTHAM'S THEORY OF FICTIONS (AMS Press 1978) (1932). The former includes legal fictions such as contracts or corporations which have a certain type of reality in that they function. The latter includes things like unicorns. See SLAVOJ ZIZEK, TARRYING WITH THE NEGATIVE: KANT, HEGEL AND THE CRITIQUE OF IDEOLOGY 87 (1993). Lacan was influenced by Bentham's theory of fictions in the development of his own ideas. In the words of Zizek, "Lacan was fully justified in maintaining that Bentham was the first who realized that truth has the structure of a fiction: the dimension of truth is opened up by the order of discourse which loses its consistency without the support of fictions." Id. at 88.
283. See Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151, 1243 (1985) for a discussion of Llewellyn's assumptions concerning the difference between language and reality. Consequently, Dennis Patterson is incorrect in maintaining that Llewellyn was a Wittgensteinian. See, e.g., Dennis M. Patterson, Good Faith, Lender Liability, and Discretionary Acceleration: Of Llewellyn, Wittgenstein and the Uniform Commercial Code, 68 TEX. L. REV. 169, 204-09 (1989) (discussing Llewellyn and Wittgenstein); Dennis M. Patterson, Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine, 137 U. PA. L. REV. 335, 374-79 (1988). Llewllyn's approach may be contrasted with Jeremy Bentham's. Although Bentham is famous (or infamous) for identifying reality only with physical existence, in his Theory of Fictions he distinguished between "fictitious entities" and "imaginary fabrications." See C.K. OGDEN, BENTHAM'S THEORY OF FICTIONS (AMS Press 1978) (1932). The former includes legal fictions such as contracts or corporations which have a certain type of reality in that they function. The latter includes things like unicorns. See SLAVOJ ZIZEK, TARRYING WITH THE NEGATIVE: KANT, HEGEL AND THE CRITIQUE OF IDEOLOGY 87 (1993). Lacan was influenced by Bentham's theory of fictions in the development of his own ideas. In the words of Zizek, "Lacan was fully justified in maintaining that Bentham was the first who realized that truth has the structure of a fiction: the dimension of truth is opened up by the order of discourse which loses its consistency without the support of fictions." Id. at 88.
284. Llewellyn, Through Title to Contract, supra note 47, at 165.
285. In 1938, Llewellyn described the common law analysis as an attempt to locate "a mythical... essence known as Title, which is hung over the buyer's head, or the seller's like a halo." Id. Twenty-five years later Llewellyn used this earlier quote approvingly in support of the schema proposed in Article 2. Llewellyn, Why a Commercial Code?, supra note 1, at 786.
286. LLEWELLYN, SALES, supra note 53, at 561.
287. Id. The particular issue discussed by Llewellyn at this juncture is whether the seller can recover the price or only damages when he goes back on his bargain.
288. Id. at 562.
289. Llewellyn, Across Sales on Horseback, supra note 47, at 732.
290. Llewellyn, Through Title to Contract, supra note 47, at 165. He continues to consider why the application of title law has been unsuccessful with respect to chattel: Is there an unambiguous chain of documents which would afford a firm base line? In the common law of trust receipts such a chain has been seen and seized on, but then, repeatedly, with disregard of what the realty lawyer could offer as a tool to help the buyer out, to wit, the full interest of a mortgagor in possession. Elsewhere, as in the statutes requiring the original bill of sale to be indorsed, etc., when second-hand cars are sold, or in the shipment of goods under straight or order bill of lading, we let the chain-of-title evidence run into curious confusion with unseen, intangible intention. We do not, I repeat, in chattel matters, lay hold on a firm objective basis for allocating title when we have one - nor have we consistently utilized or remodeled the available concepts about divided interests. Id. at 165-66 (footnotes omitted).
291. Llewellyn, Through Title to Contract, supra note 47, at 165. He continues to consider why the application of title law has been unsuccessful with respect to chattel: Is there an unambiguous chain of documents which would afford a firm base line? In the common law of trust receipts such a chain has been seen and seized on, but then, repeatedly, with disregard of what the realty lawyer could offer as a tool to help the buyer out, to wit, the full interest of a mortgagor in possession. Elsewhere, as in the statutes requiring the original bill of sale to be indorsed, etc., when second-hand cars are sold, or in the shipment of goods under straight or order bill of lading, we let the chain-of-title evidence run into curious confusion with unseen, intangible intention. We do not, I repeat, in chattel matters, lay hold on a firm objective basis for allocating title when we have one - nor have we consistently utilized or remodeled the available concepts about divided interests. Id. at 165-66 (footnotes omitted).
292. See supra Part III.
293. Llewellyn, Across Sales on Horseback, supra note 47, at 732.
294. Id.
295. See SCHROEDER, supra note 27.
296. Specifically, according to Hegelian theory, property serves a logical function in the development of human subjectivity which is the first step in the development of personality and human freedom as self-actualization. See, e.g., HEGEL, supra note 54, at 73, § 41 ("The rational aspect of property is to be found... in the superseding of mere subjectivity of personality. Not until he has property does the person exist as reason."). Because property is created to fulfill a logical function, it can not be arbitrary, even though it is artificial. But, saying that property must have certain logical parameters is not the same thing as saying that it is natural or inevitable. Nor does the Hegelian retroactive logic necessarily preclude the development of other concepts which could serve functions similar to property in the development of personality. See SCHROEDER, supra note 27; Schroeder, The Vestal and the Fasces, supra note 25, at 852-55 (analyzing Hegel's tentative presupposition); Schroeder, Virgin Territory, supra note 7, at 117-51 (discussing Hegelian philosophy of "person" and property); Schroeder, Bundle-O-Stix, supra note 3, at 245-46 (discussing Hegelian philosophy in general and its specific relation to property).
297. Specifically, according to Hegelian theory, property serves a logical function in the development of human subjectivity which is the first step in the development of personality and human freedom as self-actualization. See, e.g., HEGEL, supra note 54, at 73, § 41 ("The rational aspect of property is to be found... in the superseding of mere subjectivity of personality. Not until he has property does the person exist as reason."). Because property is created to fulfill a logical function, it can not be arbitrary, even though it is artificial. But, saying that property must have certain logical parameters is not the same thing as saying that it is natural or inevitable. Nor does the Hegelian retroactive logic necessarily preclude the development of other concepts which could serve functions similar to property in the development of personality. See SCHROEDER, supra note 27; Schroeder, The Vestal and the Fasces, supra note 25, at 852-55 (analyzing Hegel's tentative presupposition); Schroeder, Virgin Territory, supra note 7, at 117-51 (discussing Hegelian philosophy of "person" and property); Schroeder, Bundle-O-Stix, supra note 3, at 245-46 (discussing Hegelian philosophy in general and its specific relation to property).
298. Specifically, according to Hegelian theory, property serves a logical function in the development of human subjectivity which is the first step in the development of personality and human freedom as self-actualization. See, e.g., HEGEL, supra note 54, at 73, § 41 ("The rational aspect of property is to be found... in the superseding of mere subjectivity of personality. Not until he has property does the person exist as reason."). Because property is created to fulfill a logical function, it can not be arbitrary, even though it is artificial. But, saying that property must have certain logical parameters is not the same thing as saying that it is natural or inevitable. Nor does the Hegelian retroactive logic necessarily preclude the development of other concepts which could serve functions similar to property in the development of personality. See SCHROEDER, supra note 27; Schroeder, The Vestal and the Fasces, supra note 25, at 852-55 (analyzing Hegel's tentative presupposition); Schroeder, Virgin Territory, supra note 7, at 117-51 (discussing Hegelian philosophy of "person" and property); Schroeder, Bundle-O-Stix, supra note 3, at 245-46 (discussing Hegelian philosophy in general and its specific relation to property).
299. WILLIAM SHAKESPEARE, HAMLET PRINCE OF DENMARK act I, sc. 2, 129-30.
300. See Grey, supra note 3.