Law Commons^™

Commercially Reasonable Sales In The 21st Century, David G. Carlson

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It has been over 20 years since the 2000 amendments profoundly amended the foreclosure procedures in Article 9 of the UCC. This article reviews how the amendments have fared in the case law since then.

Transplanting Secured Transactions Law: Trapped In The Civil Code For Emerging Economy Countries, Xuan-Thao Nguyen, Bich T. Nguyen

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It is time for Vietnam to amend its secured transactions law by creating a body of secured transactions law separate from the Civil Code. This new secured transactions law should embody the international community’s unitary approach. Separating secured transactions law from the Civil Code would allow Vietnam to revise its secured transactions law to respond and adapt to market reality, without waiting for the entire Civil Code to be revised all at once.

Collateralizing Intellectual Property, Xuan-Thao Nguyen

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This Article identifies and critiques the collateralization of intellectual property, revealing the complexity of intersecting secured transaction law, namely Article 9 of the Uniform Commercial Code, and doctrinal intellectual property laws such as patent law, copyright law, and trademark law. The inquiry challenges the silence surrounding the pervasive use of intellectual property as collateral in secured financing and suggests changes to the existing framework on secured financing law.

The Article proceeds as follows: Part II discusses the normative intellectual property rights for patents, copyrights, and trademarks and how such rights are utilized as corporate assets. Part III describes different forms …

Chuck And Steve's Peccadillo (Symposium: Threats To Secured Lending And Asset Securitization), James J. White

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Are investors in securitized receivables to be treated as the owners of an asset whose sale has taken it beyond the reach of the trustee in bankruptcy of their sellers? O are they to be treated as holders of a security interest in the transferred asset who have left behind an interest in the sellers' hands that would cause the asset to be subject to claims and interference by the sellers' grasping trustee? By adopting contrasting-arguably conflicting-statements in two subsections of a single section, the drafters of 1999 Article 9 have thrust this issue in the faces of courts and …

Collateralizing Internet Privacy, Xuan-Thao Nguyen

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Collateralizing privacy is a pervasive conduct committed by many on-line companies. Yet most don't even realize that they are engaging in collateralizing privacy. Worse yet, governmental agencies and consumer groups are not even aware of the violation of on-line consumer privacy by the collateralization of privacy. Professor Nguyen argues that collateralizing privacy occurs under the existing privacy regime and the architecture of article 9 of the Uniform Commercial Code. Professor Nguyen critiques the violation of privacy through collateralization dilemmas and proposes a solution involving modifications of the contents of the financing statement and security agreement in secured transactions where consumer …

Death And Resurrection Of Secured Credit, James J. White

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The Bankruptcy Reform Act of 1978 (the Code) posed palpable threats to secured creditors. It was drafted by a commission that was at least as concerned with the rights of debtors as with the rights of creditors. It was modified and adopted by a Congress that might have been the most liberal since World War II and signed into law by President Carter at the apogee of the left's power, two years before the Reagan election that marked the rise of the right and the beginning of the left's decline. The power of the left was exerted most forcefully on …

Commercial Law Collides With Cyberspace: The Trouble With Perfection – Insecurity Interests In The New Corporate Asset, Xuan-Thao Nguyen

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The recent downturn in the economy, particularly in the e-commerce sector, reveals many e-companies heading toward bankruptcy with cyberassets, such as domain names, as their most valuable corporate assets. Lending institutions and other creditors that have extended loans to such e-companies obviously want to get their hands on these bankrupt estates. Which creditor will have priority in the new cybercollateral of domain names? The answer to creditor priority questions may depend on whether domain names are intangible property for purposes of secured transactions. If so, should security interests in domain names be perfected under the Uniform Commercial Code or under …

The Slippery Slope To Bankruptcy - Should Some Claimants Get A 'Carve-Out' From Secured Credit? No: It's A Populist Craving For A Petit Bourgeois Valhalla, James J. White

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In 1996, Professor Elizabeth Warren made a proposal to the American Law Institute and the Drafting Committee for Article 9 for a “20 percent set aside” for unsecured claimants. As I understand it, her proposal would amend Section 9-301 of Article 9 (the section that now implicitly subordinates a lien creditor to a prior perfected secured creditor).

Reforming Article 9 Priorities In Light Of Old Ignorance And New Filing Rules (Symposium: 'Managing The Paper Trail': Evaluating And Reforming The Article 9 Filing System), James J. White

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The other papers in this Symposium demonstrate that we have the technical capacity to build a filing system that will exceed the expectations of Grant Gilmore in every dimension.1 With more thought about what is put into the system and more clever software to get it out, the most sophisticated system possible under current technology will store and produce enough information about a debtor to give the ACLU a fright. All of the issues on improving the filing system are important, but I do not concern myself with any of them directly. I am here discuss a different question. In …

Work And Play In Revising Article 9 (Symposium On The Revision Of Article 9 Of The Uniform Commercial Code), James J. White

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For Professors Harris and Mooney the time has come to distinguish between work and play. Debating whether security is efficient is play. Revising Article 9 is work. Even Professor Schwartz does not argue for the abolition of Article 9; he merely reiterates the "puzzle" of secured credit and argues in his playful fashion that security might not be efficient.' Were it not for the fact that this debate might give us some insights about certain priority rules (such as those having to do with purchase money), it would be pure intellectual masturbation, a game with no purpose other than to …

Preference Conundrums, James J. White, Daniel Israel

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Every law teacher and many law students and practitioners understand the intellectual sport to be found in Section 547 on preference law. Because the preference rules are so intricate, rigorously logical-but really not logical-they command more than their fair attention, not only in law school but also in continuing legal education and even in the courts. Our purpose in this article is not to answer any of the difficult questions or to give a global explanation of preference law. Rather it is to confront a few of the conundrums in Section 547 and to follow the paths of those conundrums …

Revising Article 9 To Reduce Wasteful Litigation, James J. White

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For reasons that are unclear to me, the committees reviewing the articles of the Uniform Commercial Code and drafting revisions are congenitally conservative. Perhaps these committees take their charge too seriously, namely, to revise, not to revolutionize. Perhaps their intimate knowledge of the subject matter exaggerates the importance of each section and consequently magnifies the apparent size of every change. In any case, my own experience with two such committees tells me that the members quickly become focused on revisions and amendments that any outsider would describe as modest. To the extent that the revision of any of the articles …

Efficiency Justifications For Personal Property Security, James J. White

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In February of 1983 Pan American World Airways issued 100 million dollars of convertible secured notes. As security for these notes it put up three Boeing 747 SP aircraft, two 747-100 aircraft, and one McDonnell Douglas DC10-30. The appraised value of these aircraft was 157 million dollars. To the extent possible under the law, Pan American made these aircraft subject to the claims of the owners of the new notes. On default, the note holders would have the first claim on these aircraft, would have the right to repossess them outside of bankruptcy, and would have the right to the …

The Abolition Of Self-Help Repossession: The Poor Pay Even More, James J. White

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In this paper I propose to identify possible ways in which a court could uphold the constitutionality of section 9-503 without an explicit rejection of Fuentes v. Shevin. It is my thesis that Fuentes v. Shevin is probably an undesirable outcome, and that the application of the same doctrine to self-help repossession is certainly undesirable and would constitute due process gone berserk. My arguments will not be novel; each has been suggested by the courts that have considered this matter, or by the briefs of the lawyers who have argued these cases. I cannot even claim to have collected the …

Representing The Low Income Consumer In Repossessions, Resales And Deficiency Judgment Cases, James J. White

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The goal of this article is to lend a helping hand to the debtor's lawyer in his job of defending deficiency judgment suits brought following the repossession and resale of a debtor's encumbered personal property. Although some of the following discussion is relevant to the defense of any creditor's suit, and some applies to representation of the debtor prior to repossession or resale, the focal point of the discussion is the low-income consumer who has lost his automobile, television or some other "hard good" and has become a defendant in a suit brought by his secured creditor for a deficiency …

Rights Of Holder Of Bill Of Exchange Against The Drawee, Ralph W. Aigler

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“If the question were put to the average layman whether the holder of a check...had any effective rights against the drawee bank, it is believed that the almost universal response would be to the effect that of course the holder may insist upon payment by the bank, if there are funds on deposit to cover the amount. And if the same question were propounded to the average lawyer, the reply generally would be--at least if the lawyer had in mind the provisions of the Uniform Negotiable Instruments Law--that the holder had no rights against the bank. It is the purpose …

Recognition Of New Types Of Negotiable Instruments, Ralph W. Aigler

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“The expression ‘negotiable instrument’ is one of variable meaning, and what is meant thereby often can be determined only by the context… Primarily ‘negotiable’ indicates transferability with a certain facility…..

“It may be not without interest to consider how instruments gain the negotiable quality and to trace, sketchily perhaps, the process of recognition.”

Commercial Instruments, The Law Merchant And Negotiability, Ralph W. Aigler

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“Until recently apparently no serious attempt had been to make a comprehensive examination into the origins and history of commercial instruments or to explain the special doctrines attached to negotiability….

“The bill of exchange, it is said, developed as a bit of machinery to give effect to the medieval contract of cambium which was concerned with the special case of the exchange of money for money. With the growth of foreign trade the difficulties and dangers of payments multiplied. Naturally those whose business it was to exchange monies were resorted to in this connection. They, in turn, out of necessities …

Termination Of A Continuing Guaranty, Edgar N. Durfee

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Several persons jointly and severally guaranteed to a bank the present and future obligations of a customer, stipulating that "the bank may grant extensions without lessening the liability" of the guarantors, that "this shall be a continuing guaranty, and shall cover all the liabilities which the customer may incur or come under until the undersigned, or the executors or administrators of the undersigned, shall have given the bank notice in writing to make no further advances on the security of this guaranty," and that "this guaranty shall not be affected by the death of the undersigned." One of the guarantors …

Foreign Voluntary Assignments For The Benefit Of Creditors, Edson R. Sunderland

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AlI laws concerning property rights are based upon the broad - doctrine that every person who owns property may dispose of the same as he sees fit. The right of disposal of property is inseparably united to the right of property itself, and indeed is an essential element of the concept of property. It might even serve as a definition of property, viewing property as that which one may dispose of,-a definition too general, it is true, for practical purposes, but undoubtedly a correct and valuable metaphysical theorem