(Way inside bankruptcy baseball.)
It's been awhile since I've posted on the fundamental categories of property and contract through the lens of bankruptcy law. (Go here for one from 2012.) But until today I've never achieved the trifecta of property, contract, and Article 9 of the Uniform Commercial Code. Actually, I haven't achieved such a trifecta but the spousal team of Jeanne Schroeder and David Gray Carlson have in an articled titled Three Against Two: On the Difference between Property and Contract and the Example of Deposit Accounts in Bankruptcy (download here). Here's the abstract:
In addition to directing folks to this fine piece, I should admit that it reveals an oversight in my 2001 article How Article 9 Will Turn the Trustee's Strong Arm into a Weak Finger: A Potpourri of Cases (download here or here). I tried to pick up on how the drafters of Revised Article 9 tried (and largely succeeded) in using the process of drafting uniform laws to reverse a variety of cases decided under the earlier version of the statute. While the Schroeder-Carlson team concluded that the drafters did not try to reverse SCOTUS, I should have mentioned this issue.
(If you want to kill some more time by reading another of my other post on the topic of property and contracts, try here.)
It's been awhile since I've posted on the fundamental categories of property and contract through the lens of bankruptcy law. (Go here for one from 2012.) But until today I've never achieved the trifecta of property, contract, and Article 9 of the Uniform Commercial Code. Actually, I haven't achieved such a trifecta but the spousal team of Jeanne Schroeder and David Gray Carlson have in an articled titled Three Against Two: On the Difference between Property and Contract and the Example of Deposit Accounts in Bankruptcy (download here). Here's the abstract:
In Citizen's Bank v. Strumpf (1995), Justice Scalia announced that deposit accounts are not "property". Five years later, the Uniform Commercial Code was amended to make deposit accounts collateral for the depository bank maintaining the account, thereby crowding the field previously occupied by the common law right of setoff. Security interests attach to personal "property." Security interests attach to deposit accounts. Deposit accounts, by syllogistic logic, are property. Does this mean that the UCC has overruled the Supreme Court? We argue not. A deposit account is a mere contract in the two-person universe that contract law presupposes. A deposit account is property in a universe of three or more persons. We argue that Justice Scalia can be vindicated by the text of the Uniform Commercial Code and that the 2000 amendments do not overrule the Supreme Court. The investigation reveals the proper vector spaces that contract and property logically inhabit.In other words, from one perspective deposit accounts are contracts but from another they are property. Such a perspectival approach to a single (but complex) phenomenon is not (at least not necessarily) a lack of analytic rigor. See, for example, some long-ago articles that I wrote using such a multi-perspectival approach: Consideration in the Common Law of Contracts (download here or here) and Mission Possible: A Paradigm for Analysis of Contractual Impossibility (here or here).
In addition to directing folks to this fine piece, I should admit that it reveals an oversight in my 2001 article How Article 9 Will Turn the Trustee's Strong Arm into a Weak Finger: A Potpourri of Cases (download here or here). I tried to pick up on how the drafters of Revised Article 9 tried (and largely succeeded) in using the process of drafting uniform laws to reverse a variety of cases decided under the earlier version of the statute. While the Schroeder-Carlson team concluded that the drafters did not try to reverse SCOTUS, I should have mentioned this issue.
(If you want to kill some more time by reading another of my other post on the topic of property and contracts, try here.)
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