I—
The Gates of Ivory and Horn

Circumspect Penelope said to him in answer: "My friend, dreams are things hard to interpret, hopeless to puzzle out, and people find that not all of them end in anything. There are two gates through which the insubstantial dreams issue. One pair of gates is made of horn, and one of ivory. Those of the dreams which issue through the gate of sawn ivory, these are deceptive dreams, their message is never accomplished. But those that come into the open through the gates of the polished horn accomplish the truth for any mortal who sees them."^[189]

Private-law doctrinalists, like public-law theorists, tell a myth about the death of property. Grey asserts that these myths are fundamentally the same. They both speak of an evil demon worshiped by our ancestors—unitary physical property—and slain by academic demigods who then bring about a new age of truth and justice. Grey seeks to convince us that the concept of property should fade away in constitutional discourse because it has already been killed off in private-

[189] Homer, The Odyssey of Homer, 296–97 (Richard Lattimore trans., 1965).

law doctrine. I agree that there are similarities between the two myths but believe that they convey different messages. The account of the death of property turns out to be mythic in the pejorative sense of illusory and misleading. Private law only claims to have killed off unitary physicalist property. The murder of the Phallic god is always the prelude to his resurrection.

The creation myth, or "just-so" story, of commercial law doctrine tells how in ancient times our benighted legal ancestors worshiped a metaphysical concept known as "Title." The lionlike Llewellyn and his fellow legal realists fulfilled the prophecies of Hohfeld by killing "Title." They shattered or disaggregated it into a bundle of sticks. Their deeds are enshrined in their holy book—the Uniform Commercial Code.^[190]

Specifically, the code drafters declared that the different legal questions

[190] This myth pervades E. Allan Farnsworth & John Honnold, Cases and Materials on Commercial Law (4th ed. 1985). (The Fifth Edition, which is also edited by Steven L. Harris, Charles W. Mooney, Jr., and Curtis R. Reitz, has dropped some, but not all, of these references.) For example, Farnsworth and Honnold laud the revolutionary nature of the U.C.C.'s "virtual abandonment of 'property' (or 'title') as a vehicle for deciding sales controversies." Id . at 480. They quote Williston, who said that this step was "the most objectionable and irreparable feature" of the new Code. Id . (quoting Samuel Williston, The Law of Sales in the Proposed Uniform Commercial Code , 63 Harv. L. Rev. 561, 569–71 (1950)). Farnsworth and Honnold also praise the drafters for "exorcising 'title' from sales controversies and banishing the 'lien'" in favor of "down-to-earth language." Id . at 720.

Notice that in their rush to praise the code drafters, they fail to mention that this replacement of legal terminology with "down-to-earth" language does not exclude using many other words in their technical legal sense as opposed to their familiar colloquial meanings. For example, "purchaser" is given a technical meaning as a transferee in any voluntary transaction, rather than its colloquial meaning as "buyer." See U.C.C. § 1-201(32)–(33) (1987).

Farnsworth and Honnold defend the provisions of U.C.C. § 2-501, which gives a buyer a "special property" in goods identified to a contract:

The Code (with good reason) discarded the traditional concepts of "property" and "title" as tools for deciding a wide variety of issues. . . . Nevertheless, to cope with problems posed by claims against third persons it seems necessary to follow a line of thought that resembles the "property" concept. Happily, this process is not subject to the vice that led to the rejection of "property" as a general solvent, for we are taking on only one problem at a time—as contrasted with the confused, cross-eyed pre-Code approach of using one general concept for a wide variety of different problems.

Farnsworth & Honnold, supra at 718. This statement, unfortunately, begs the question as to what "is" a property interest at all. If, as Hohfeld suggests, a property right is what he calls a multital right—that is, a right against the world—then problems posed by claims against third persons do not resemble property; rather, these claims are property by definition. Conversely, Farnsworth and Honnold seem to be assuming that the issues our legal ancestors decided under the rubric of "property" were a "wide variety of different problems," id ., even though the question of property's coherence hinges precisely on whether the differences or similarities of different problems are essential.

supposedly answered by "Title" analysis were just that—different legal questions. These differences had been obscured by the fact that the single term "Title" was used as shorthand for a bundle of separate rights. Common lawyers were idealists who assumed that unity of terminology reflected a unitary essence. The legal realists were nominalists who sought to examine the reality of practice that words obscured. Title, they declared, was a chimera, initially frightening until one realizes that it is an illusion or, in the words of Llewellyn, an "intangible something."^[191]

According to Homer, the faithful Penelope learned the hard way that one should not place one's trust in dreams. Those myths (the collective dreams of a people) that originate at the gate of horn present a simplified and idealized image of those ideals which give structure and meaning to a culture. They can, therefore, claim a truth which is beyond literal empirical fact. Most myths, however, come through the gates of ivory and are mere fairy tales, delusions, or outright lies.

A cursory examination may lead one to believe that the U.C.C. creation myth is horny in the Homeric sense. It seems to be an accurate, albeit simplified, account of trends in twentieth-century commercial law. I shall show, however, that the myth of the bundle of sticks is, in fact, merely a lovely, but deceptive, ivory dream. The analysis that the U.C.C. killed or even weakened property is, in fact, a classic "academic" argument, in the pejorative sense of that term. It concentrates on the aesthetics of Hohfeld's admittedly elegant taxonomy and ignores the economic, social, legal, and political practice of property, as well as the language of the U.C.C. itself, and the writings of its chief reporter, Llewellyn.