A Brief Encomium on Teaching the UCC
One of the fun things about teaching the UCC is that you can use it as a vehicle for showing to students the concrete implications of differing jurisprudential approaches. For example, this week in my secured transactions class we discussed the apparently mundane issue of what it means for a debtor to have rights in collateral or the power to transfer rights, a pre-condition for the creation of a security interest under 9-203(b) of the UCC.
The fun comes when you play around with various other sections of the UCC that allow possessors of property to transfer rights to goods that they don’t own. Hence, for example, under 2-403 a seller with voidable title can transfer good title to a good-faith purchaser (which includes a secured creditor), while an merchant entrusted with goods can transfer all of the entrusters rights in goods to a buyer in the ordinary course (which does not include a secured creditor). There is a certain enjoyment in showing how the different sections of the code fit elegantly together to provide concrete answers. Even more fun is the way in which the code provisions play havoc with many students’ intuitive understanding of what it means to “own” something or to “have title to it.”
The UCC, of course, is a child of the legal realists and the polemic against “transcendental nonsense.” Llewellyn, Gilmore, and their accomplices were trying as hard as possible to wring from commercial law abstractions like “title,” making the outcomes of cases turn on reasonable business practice (as understood by law professors, to be sure) rather than the manipulation of lawyers’ abstractions. The Code’s elegant — if at times counterintuitive — certainty on some questions provides a nice object lesson for the virtues of rejecting legal Platonism. At the same time, some of the Code’s persistent problems — like the train wreck that is 2-207’s approach to the battle of the forms or the persistence of certain circular priorities under Article 9 — shows the limitations of extreme legal nominalism. At times, it would seem that Langdell — or at any rate Williston — had a point.
The virtue of the Code as a pedagogical device for teaching the intellectual history of American legal thought is that can make jurisprudence concrete and practical in precisely the way that makes the law such a fascinating place for seeing philosophical rubber hitting the road.