Perhaps I should pass this news along to the music minister at the local mega-church where I worship. I'm attending our Christmas extravaganza this afternoon, and I'm told that an elephant will walk the aisle. Guess I better check the location of my seats.
Three children are playing the game of "rock, paper, scissors." They all throw down, one selecting the "rock," another the "paper," and the third a pair of "scissors." Will we have a clear winner?
This issue pops up now and then in Secured Transactions, when three (or more) creditors are fighting over a pool of collateral with a value that falls short of adequately securing repayment of all of the debts (creating a genuine priority dispute). The relevant legal rules may resolve the priority dispute as follows: A beats B, B beats C, and C beats A. Now what?
If this topic is of interest to you (it is, isn't it?!?!?!), you'll want to read Circular Priorities in Secured Transactions Law, authored by Roderick J. Wood (pictured), a professor on the law faculty at the University of Alberta. Here's the SSRN abstract:
Circular priority problems are endemic in secured transaction law. A circular priority situation arises when there are three or more parties with competing claims to the same asset and there is no clear ranking of priority among them. There are multiple approaches applied by courts or advanced by commentators to resolve circular priority problems. The different mechanisms used by the courts to resolve a circular priority problem are evaluated using criteria that reflect the general values and goals of commercial law, and the mechanism that best accords with this criteria is identified. Although consensus on the best way of breaking a circularity will reduce litigation costs, it does not provide a complete solution as it can be undermined by ex post bargaining among creditors. Given this instability, priority rules should be designed so as to minimize the occasions when such problems can arise.
The article appears at 47 Alberta Law Review 823-852 (2010).
It was a pleasure to visit The Lounge last month. Speaking of gifts, I thought I might sign off with a question about holiday activities in law schools around the country. In my experience, every school has been a little different. One school did not permit decorations of any kind (in fact, I was “spoken to” about a stocking on my door), another had a nice holiday party where no gifts were exchanged, and I have heard of others who contribute to various charities instead of exchanging gifts. How is this handled at your school? If gifts are exchanged, what were some of your favorites? Again, thanks to everyone at The Lounge for a delightful time, and Happy Holidays!
Most readers are aware that UCC Article 9 permits a lender to perfects its security interest in almost all types of collateral by filing a "financing statement" (also known as a UCC-1).
A few times during every semester in which I'm teaching Sadistic Transactions a student will throw out the phrase "financial statement" (as in, "the creditor is perfected because it filed a financial statement"). I cringe, inwardly and outwardly, and the students soon learn the error of their ways.
My students aren't the only ones who, on occasion, commit this error. Judges, too, have been known to make the same mistake. See, e.g., Agriliance, L.L.C. v. Farmpro Serv., Inc., 328 F. Supp. 2d 958, 966 (S.D. Iowa 2003) (“filed the appropriate financial statement”); EH Yacht, LLC v. Egg Harbor, LLC, 84 F. Supp. 2d 556, 560 n.2 (D.N.J. 2000) (“the UCC financial statement”); 21 West Lancaster Corp. v. Main Line Restaurant, Inc., 614 F. Supp. 202, 203 (E.D. Pa. 1985) (“financial statements were timely filed”); U.S. v. Trans-World Bank, 382 F. Supp. 1100, 1103 (C.D. Cal. 1974) (“a financial statement filed with the California Secretary of State”); In re Tamis, 398 B.R. 124, 126 (Bankr. D.N.J. Dec. 2008) (“The Chase security interest was perfected by the recordation of a UCC-1 financial statement”); 1st Bank v. Winderl, 60 P.3d 998, 999 (Mont. 2002) (“two financial statements filed in 1990 and 1994”); LBM, Inc. v. Rushmore State Bank, 543 N.W.2d 780, 785 (S.D. 1996) (“a valid and filed financial statement”); Texas Beef Cattle Co. v. Green, 883 S.W.2d 415, 425 (Tex. Ct. App. 1994) (“filed financial statements”); Simmons Oil Corp. v. Holly Corp., 796 P.2d 189, 197 (Mont. 1990) (“Holly filed UCC financial statements in Montana.”). And I recently discovered the same linguistic faux pas in a "problem" that appears in a leading commercial law casebook ("... quickly files an initial financial statement ...").
My point in writing this post isn't to hold myself out as one who never makes a mistake (I may not make this mistake, but I make plenty of others; e.g., approximate cause v. proximate cause, payroll evidence v. parole evidence, administratrix v. dominatrix, etc.).
My point is this: to solicit other suggestions where a word or phrase, of significance to a particular body of law, is often mangled by its users. What might those words or phrases be?
The holiday season will soon be upon us (but let's first get through the AALS Faculty Recruitment Conference!). And thoughts will turn to buying that "perfect" gift for either the "hard to please" recipient or the "person who has everything."
Need some ideas? Our friends at Neiman Marcus want to help! Click here to peruse NM's annual Christmas catalog.
And if any readers out there just happen to draw my name, I'd be quite pleased to receive this item.
The journal Economic Inquiry (which "...is widely regarded as one of the top scholarly
journals in its field. Besides containing research on all
economics topic areas, a principal objective is to make each
article understandable to economists who are not necessarily
specialists in the article's topic area") has published Paul Krugman's article "The Theory of Interstellar Trade." From the abstract:
This article extends interplanetary trade theory to an interstellar
setting. It is chiefly concerned with the following question: how should
interest charges on goods in transit be computed when the goods travel
at close to the speed of light? This is a problem because the time taken
in transit will appear less to an observer traveling with the goods
than to a stationary observer. A solution is derived from economic
theory, and two useless but true theorems are proved.
An older version from 1978 is posted here. This got me wondering just how much legal scholarship is written about interstellar trade. I didn't find an answer to that question because during my search I was sidetracked by articles in law journals related to or referencing Star Trek (seriously). Don't believe me? Throw these titles into your Google Scholar:
The Interstellar Relations of the Federation: International Law and Star Trek The Next Generation, 25 U. Toledo L. Rev. 577 (1994)
Lillich on Interstellar Law: U.S. Naval Regulations, Star Trek, and the Use of Force in Space, 46 S.D. L. Rev. 72 (2001)
On a Wagon Train to Afghanistan: Limitations on Star Trek's Prime Directive, 25 UALR L. Rev. 635 (2002-2003)
In any case, there have to be legal implications from Krugman's EI article. Is it destined to kick off a whole new line of interstellar trade scholarship in the legal academy?
It's kind of cool to pick up the national newspapers and find articles that involve two friends. The New York Times had an article in the science section this morning about new discoveries that confirm the theory of genomic imprinting, under which that father and mother genes do not always have equal chances of being present in the offspring. As the article notes, the leading explanation of genomic imprinting comes from David Haig, an evolutionary biologist at Harvard who also happens to be my next-door neighbor.
Then I picked up the Wall Street Journal to see that my former law partner and friend Nancy Edmunds is the federal judge presiding over the alleged Christmas Day bomber in Detroit (he fired his lawyer yesterday, asking to represent himself).
In its September issue, The National Jurist, "the magazine for law students," reports on the ranking by something known as "SubtleDig" of the nation's best and worst law schools for partying. (Thumbs down on TNJ's editorial assiduousness, as the table says University of Arizona ranks number one, but the text says Arizona State. I can say as a true son of Michigan that a similar mistake as between our institution and the green and white one to the northwest would have been unconscionable. I did, however, find it really odd that the University of Michigan Law School - the only school ranked in the top ten where not owning a pair of snow boots would be a mistake - ranks above UNLV as a party school. Really? As much as I love Ann Arbor, are the rankers really suggesting that South U has it over The Strip? That The Blind Pig beats out The Bellagio? That The Big House trumps beating the house? )
But I digress. What I wanted to say was that Tulane's number two ranking resonated with me. I taught there as a visitor in the 2006-2007 school year. In the spring semester, I taught secured transactions early in the morning and the first-year course in sales at 2:00 p.m. Everything in New Orleans is shut down on the Tuesday which is Mardi Gras, but what floored me was the request that I cancel the 2:00 p.m. class the next day (otherwise known as Ash Wednesday) because most students would still be recovering from Tuesday. I am sure that my declining this request (which I viewed as a sign of the apocalypse) had to do with the mediocre student evaluations I received in that class.
I just came from a presentation on Westlaw Next (good review here) which already rolled out for lawprawfs and which our students will be learning about within a few weeks. I already had some limited experience with Westlaw Next, mostly because searches from my Westlaw welcome screen took me straight into the service. Overall, I'm impressed. The requirement to search in a specific database to find what you're looking for has gone by the wayside, and searches are now more Google-like. In a little more than one week's worth of use I've already discovered new sources that I never realized were available within Westlaw...very cool. Also, if you edit cases for a seminar or casebook, the downloads into Word or RTF are much cleaner and easier to edit.
Some of the other features are the ability to highlight cases and add sticky notes to them. You can save your research to research folders and sub-folders, and there is an enhanced copy with reference feature that will put your copied text into a (rough) BlueBook format. If you get the chance to go to your Westlaw rep's presentation I recommend it. Plus, you get free food and a free mug which is the real reason I'm writing this post.
Here is the new magical Westlaw mug.
What is so magical about it? Well here's what the paper insert I found in the mug says:
Your tumbler was crafted using a unique, FDA, CFA approved advanced technology which combines popular plastic materials with an additive called BIO-GPS. When supplemented to the plastic resins, your Tumbler fully maintains its mechanical properties and shelf life. When disposed of, communities of microorganisms, which are present almost everywhere on this planet, break down the plastic construction into stable, organic matter in only 1-5 years!
HOW DOES MY TUMBLER DO THAT?
As soon as you discard your Tumbler into a microbial environment the process starts! A swelling agent begins to weaken the plastic's molecular composition. Next, a combination of bio-active compounds attracts colonies of microorganisms. The weakened plastic structure is no match for the microorganisms which are able to completely digest and neutralize the remaining matter. The residual non-toxic residue is completely harmless to the environment and living organisms.
This thing automagically disintegrates. Now of course, I'm skeptical and perhaps a little concerned. How does the tumbler know when it is disposed of? It seems the trigger for break-down is "communities of microorganisms" and those things exist "almost everywhere on this planet." I'm no scientist, but I'm guessing that my office is on this planet, and I'm thinking it has some microorganisms present. (Consider this report "What's 100 Times Dirtier Than A Toilet?" Here's a hint, it starts with a "your" and ends in "keyboard"). According to scientists, there are four hundred times more bacteria on a desktop than on most toilet seats. Yuck! So the automagical Westlaw Next mug seems great for the environment...until it disintegrates halfway through your morning latte.
Tune in 1-5 years from now for an updated photo of the disintegrating mug.
Thanks, of course, to Dan and my friends over here for the invitation (and for using a picture that shows me with hair). With blogging and Facebook, we can all now accomplish easily what somebody once said to me about Richard Posner (and he was doing it in the days of legal pads, dictaphones and IBM Selectrics): never having an unpublished thought. My problem is that I've been diagnosed as a manic expressive, and it doesn't help that I'm doing a new prep for contracts (which I adore teaching, by the way; a student just told me in the hallway that I have them terrified "but in a good way") which means that ANYTHING is an excuse to procrastinate.
Some time later in the month (maybe even tomorrow), I will have you rolling your eyes (or quickly scrolling to the next post) with some of the random things I think about, but for right now I have a really practical question about faculty lounges. We don't have one. Apparently we had one before I got here, but it didn't get used, so it got turned into a classroom. I really wanted there to be one - with some big cushy chairs and footrests and a television that gets Turner Classic Movies - because on Mondays I teach from 2:00-3:15 pm and then not again until 8:25-9:40 pm (that's at least an hour and a half past my normal bedtime), and I didn't want to go home and experience the sauna that was undoubtedly the Park Street T station in 95 degree heat.
What are the conditions under which there exists a good and vibrant faculty lounge (assuming there are any)? At Tulane, the bagels, donuts, fruit, and coffee in the morning (plus the cushy chairs and television set) helped, as did the "guillotine-style" bagel cutter Ed Sherman ceremoniously contributed in the first and only Tulane faculty meeting I ever attended.
Warning: This post references the UCC. Viewer discretion is advised.
Law profs who are teaching sales, sadistic transactions, or bankruptcy this Fall may wish to add to their materials the recent case of In re Erving Industries, Inc., in which a bankruptcy judge confronted the issue of whether electricity is a "good." The answer is important for a variety of reasons under commercial law. Might Article 2 apply (contract for services? or contract for sale of goods?)? Can the seller claim a PMSI in electricity under Article 9 (generally limited t0 goods)? Could a lender perfect its security interest in electricity by possession (perhaps if a good, but not an intangible)? Might the creditor seek a "priority claim" for electricity sold to a bankrupt debtor within days preceding the petition (chances increase if a good)?
I won't spoil the fun by disclosing the court's ILLUMINATING analysis and conclusion. PLUG INTO IT for yourself. Perhaps you'll be SHOCKED!
Suffice it to say that issues like this make the world of commercial law so much more riveting, entertaining, and rewarding than most, if not all, of the other subjects taught in our law schools today. Yes, indeed. You won't see any commercial law professors (the few, the proud, the anointed ones) rushing out to buy a happiness book. We've already got a copy on our desks. It's called the UCC.
Congrats (?) to Seattle resident Molly Ringle, named earlier this week as the 2010 grand prize winner in the annual Bulwer-Lytton Fiction Contest.
For the first month of Ricardo and Felicity's affair, they greeted one
another at every stolen rendezvous with a kiss — a lengthy, ravenous
kiss, Ricardo lapping and sucking at Felicity's mouth as if she were a
giant cage-mounted water bottle and he were the world's thirstiest
A few days ago the White House announced the appointment of 13 incredibly talented men and women as White House Fellows. You'll find brief bios on these outstanding individuals here, and additional information on the Program here.
I'm wondering if any law profs out there had the privilege of serving as White House Fellows. Any names?