2—
The Fasces:
The Masculine Phallic Metaphor for Property

I—
Property as the Object Petit A

In chapter 1, I argued that the phallic metaphor haunts property discourse because it is an abduction that comes so easily to us as to seem natural. Both property, according to Hegelian philosophy, and the Phallus , according to Lacanian psychoanalysis, serve as the defining objects of desire that enable us to create ourselves as acting subjects through the creation of law. The parallel roles reserved for property and for the Phallus in the political and psychoanalytic philosophies of Hegel and Lacan are the reason these metaphors so frequently recur in discourse about property law. Just as we conflate the psychoanalytic concept of the Phallus with the male organ and the female body, so we use these anatomical metaphors to describe the Phallic relation of property.

Although sexuality is an essentially symbolic or linguistic category, it becomes mapped onto anatomical differences by a conflation which I have called the imaginary collapse of the symbolic into the real. This is a doomed attempt to deny castration, recover the Feminine, and experience the jouissance of immediate relationships. The imaginary collapse of the symbolic and the real that Lacan noted at the psychic level is reflected in a similar conflation at the legal level. Property, like sexuality, exists at the linguistic-legal level of the symbolic in the sense that property, subjectivity, and law are mutually constituting. Property cannot, therefore, belong in the animalistic, physical, impossible, prelegal realm which we locate in the order of the real. It does not exist primarily to satisfy our physical, limiting,

needs . Property is Phallic and, as such, is an object of insatiable symbolic desire, not of satiable real need or even imaginary demand. Because desire can only be played out through intersubjectivity mediated through objectivity, desire and its objects are symbolic categories. That is, we desire the object of desire derivatively as a means of achieving our true desire—the love of other subjects.

According to Lacan, we sublimate our desires and identify the object of desire with a specific object that Lacan called the objet petit a .^[1] Although this object a is an imaginary—in the technical sense—substitute for the symbolic object of desire, we make it function retroactively as the object cause of the desire.^[2] The object little a, therefore, is the point at which the

[1] The French term is short for "the object spelled with the little a" and designates that object which stands in for the "other" (lower case, i.e., the specific other as distinguished from the big Other of radical alterity which first includes the (M)Other in the mirror stage and later comprehends the entire symbolic order which, in our castration, seems other to us). The French word for "other" (autre ) is obviously spelled with an "a." This subtlety is lost if the word is translated literally and directly into English—for the obvious reasons that both "object" and "other" are spelled with an "o."

Lacan considered the concept of the objet petit a his most important contribution to psychoanalysis. In this book, I am not attempting to give a full account of this rich and complex concept, but I refer to one aspect of the little a as the retroactive cause of desire. See Jacques Lacan, The Four Fundamental Concepts of Psycho-Analysis 17, 62, 76–77, 103–04 (Jacques-Alain Miller ed. & Alan Sheridan trans., 1981) [hereinafter Lacan, Four Fundamental Concepts]; Jacques Lacan, God and the Jouissance of the Woman [hereinafter Lacan, God and Jouissance ], in Jacques Lacan and the école freudienne, Feminine Sexuality 137, 143 (Juliet Mitchell & Jacqueline Rose eds. & Jacqueline Rose trans., 1985) [hereinafter Lacan, Feminine Sexuality]; Jacques Lacan, A Love Letter (Une lettre d'âmour), in Lacan, Feminine Sexuality, supra at 149, 153–54; Jacques Lacan, Seminar of 21 January 1975, in Lacan, Feminine Sexuality, supra at 162, 164, 167–68; Alan Sheridan, Translator's Note, in Jacques Lacan, Écrits: A Selection at vii, xi (Alan Sheridan trans., 1977) (1966) [hereinafter Lacan, Écrits]; Bice Benevenuto & Roger Kennedy, The Works of Jacques Lacan: An Introduction 175–76 (1986); Elizabeth Grosz, A Feminist Introduction to Lacan 75–78 (1990).

Through the psychoanalytical process of sublimation, the objet petit a stands in for the Other—and thereby functions as the object cause of our desire. This object can conventionally take the form of a woman or, more fetishistically, a body part such as a breast. But an infinite number of objects can so function to put the chain of desire into motion. The imaginary object need not be sublime in the conventional sense of beautiful or nonsexual. It often takes the form of the disgusting, obscene object of morbid fascination. See Grosz, supra at 75–77, 80–81; Jacques Lacan, Introduction to the Names-of-the-Father Seminar, in Jacques Lacan, Television 81, 82 (Joan Copjec ed. & Denis Hollier et al. trans., 1990) (1974) [hereinafter Lacan, Television]; Lacan, Television, supra at 3, 21; Slavoj Zizek,^[*] For They Know Not What They Do: Enjoyment as a Political Factor 148, 231, 255 (1991) [hereinafter Zizek, For They Know Not What They Do]; Jacqueline Rose, Introduction II to Lacan, Feminine Sexuality, supra at 27, 48.

[2] That is, "the subject calls for recognition on the appropriate level of authentic sym-bolic exchange—which is not so easy to attain since it's always interfered with—is replaced by a recognition of the imaginary, of fantasy." Jacques Lacan, The Seminar of Jacques Lacan, Book II, The Ego in Freud's Theory and in the Technique of Psychoanalysis 1954–1955, at 15 (Jacques-Alain Miller ed. & S. Tomaselli trans., 1988) [hereinafter Lacan, Seminar II]. The objet petit a is "the chimerical object of Fantasy, the object causing our desire and at the same time—this is the paradox—posed retroactively as this desire." Slavoj Zizek,^[*] The Sublime Object of Ideology 65 (1989). "The paradox of desire is that it posits retroactively its own cause, i.e . the object a . . . ." Slavoj Zizek, Looking Awry: An Introduction to Jacques Lacan Through Popular Culture 12 (1992) [hereinafter Zizek, Looking Awry].

three orders intersect.^[3] We insist that it is actually the desire for her body, his penis, my house, your car, her wedding ring, that drives us on. Although we look for a substitute object because we desire, we pretend that we desire because of the desirability of the object. We do this because it seems to hold out the hope that if we obtain the object, we will then fulfill our desire. But "[t]he phantasy is the support of desire; it is not the object that is the support of desire."^[4] By definition, we cannot fulfill desire; merging with the Other in an unmediated relation destroys subjectivity, consciousness, and speech. Because need can be met, through sublimation we identify the unattainable real object of our desire which was created and prohibited in the symbolic with an empirical or physical (i.e., seemingly real) object we can imagine as the object a.^[5]

Just as the masculine position has two failed strategies for avoiding confrontation with castration, the masculine phallic metaphor for property comes in two versions, positive and negative. The former sees the fasces

[3] Ellie Ragland, Essays on the Pleasure of Death 161 (1995). It is the point at which the orders intersect. Ellie Ragland-Sullivan, The Sexual Masquerade: A Lacanian Theory of Sexual Difference, in Lacan and the Subject of Language 1 (E. Ragland-Sullivan & M. Bracher eds., 1991). (Zizek, speaks of it as "a little piece of the real" in the symbolic. Zizek, Looking Awry, supra note 2, at 33. The objet a functions as a semblance of jouissance , as a piece of the lost real remaining in the symbolic. It is only a semblance because although we retroactively posit the objet a as "islands of enjoyment" which are left behind when the real withdraws, this cannot be the case because the real does not really preexist the symbolic. Rather, it is the illusion that the little a is a leftover, a surplus of something lost which retroactively creates the real as that which is beyond the symbolic. Id . at 36. Elsewhere Zizek, writes, "The paradox of this object—of objet petit a —is that although imaginary, it occupies the place of the real." Slavoj Zizek, The Metastasis of Enjoyment: Six Essays on Woman and Causality 50 n.6 (1994) [hereinafter Zizek, Metastasis].

[4] Lacan, Four Fundamental Concepts, supra note 1, at 185.

[5] This is a common misconception of desire.

[Understanding] consists in thinking that some things are self-evident, that, for example, when someone is sad it's because he doesn't have what his heart desires. Nothing could be more false—there are persons who have all their heart desires and are still sad.

Jacques Lacan, The Seminar of Jacques Lacan, Book III, The Psychoses 1955–1956, at 6 (Jacques-Alain Miller ed. & Russell Grigg trans., 1993) [hereinafter Lacan, Seminar III].

as the axe^[6] —a weapon to be grasped and wielded as a whole. The latter sees the fasces as the bundle of sticks—to be untied and separately distributed. The former emphasizes the masculine element of possession, the latter the masculine element of exchange. Like a modern lictor, the lawyer can use property in part or in whole to flog his case or execute his judgment. Theorists who adopt the masculine metaphor usually presume^[7] that the axe and the bundle of sticks are mutually inconsistent ways of ana-

[6] The "bundle of sticks" metaphor for disaggregated property (the negative masculine metaphor) is one of the more familiar legal clichés of the twentieth century. As James Boyes notes:

After all, in contemporary legal discourse the most common conception of property is the bundle of legally protected interests, held together by competing and conflicting policy goals. The removal of one or more sticks from the bundle should have no particular implications for the legally protected interests that remain.

James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading , 80 Cal. L. Rev. 1413, 1512 (1992). This view is designed to contrast with the supposedly classic view of "title":

To the extent that there was a replacement for this Blackstonian conception it was the familiar "bundle of rights" notion of modern property law, a vulgarization of Hohfeld's analytic scheme of jural correlates and opposites, loosely justified by a rough-and-ready utilitarianism and applied in widely varying ways to legal interest of every kind.

Id . at 1459. See also James Boyle, Shamans, Software, and Spleens: Law and the Constitution of the Information Society (1996).

One of the most famous early uses of this metaphor is by Benjamin N. Cardozo: "The bundle of power and privileges to which we give the name of ownership is not constant through the ages. The faggots must be put together and rebound from time to time." Benjamin N. Cardozo, The Paradoxes of Legal Science 129 (1928). Note that, unlike many contemporary legal scholars, Cardozo does not use the "bundle of sticks" metaphor to argue either that any individual stick can separately be characterized as property or that just any bundle of sticks can be characterized as property. Rather, he argued that somewhat different bundles have been recognized as complete property interests at different times.

J.E. Penner traces the metaphor back to at least as early as 1888. J.E. Penner, The "Bundle of Rights" Picture of Property , 43 UCLA L. Rev. 711, 713 n.8 (1996).

I have invented the imagery of the axe.

[7] Although this presumption is often implicit in the use of the affirmative masculine metaphor, as I shall discuss in section III.A of this chapter, proponents of the negative (bundle of sticks) version of the metaphor explicitly state that the two points of view are alternatives. Another example of this presumption of duality can be seen in Guido Calabresi and Douglas Melamed's well-known analysis of environmental nuisances. Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral , 85 Harv. L. Rev. 1089 (1972). They see what they call "property" (which emphasizes the element of possession) and "liability" (which emphasizes the element of alienation through exchange) as two alternate legal regimes. Jeanne L. Schroeder, Three's a Crowd: Calabresi and Melamed's Repression of the Feminine (1997) (unpublished manuscript, on file with author) [hereinafter Schroeder, Three's a Crowd]. I argue that their dichotomy reflects the two masculine strategies to deny castration and attempt to reduce the tertiaryrelationship of property to a binary one (either subject-object or subject-subject). I criticize them for not seeing that, in fact, they are two necessary aspects of a single tertiary regime, and for repressing the feminine element of enjoyment, which lies at the heart of environmental disputes.

lyzing property. They are, in fact, two sides of the same coin. The masculine imagery of property is a fasces—simultaneously both axe and sticks.

When we adopt the positive masculine phallic metaphor, we try to reduce property to physical objects we control. This is a strategy to avoid confronting the triune mediated nature of property and subjectivity. Property is reduced to possession, conceptualized as the simple immediate binary relation of subject to object—property is the wielding of the axe. While this accurately recognizes that a property interest in a physical object may include the right sensuously to see and grasp, property cannot be reduced either to sensuous contact or to the physical thing itself which is the object of the property right. Nor does the sensuousness of the contact or the physicality of the object epitomize the property relation. This seems to be self-evident, and yet we continue to identify property with physicality—to imagine that we can collapse the symbolic into the real.

When the implicit physicalist imagery underlying this view of property is made express, it appears painfully naive. But those writers who do confront the inadequacy of the imagery of property as tangible object do not escape the lure of the masculine phallic metaphor. Despite their protests to the contrary, they cannot imagine property as anything other than a phallic, physical object. As a result, they feel forced to condemn not this incompetent image of property but the entire institution of objective property. They argue that property as we know it does not exist (or is in the process of disappearing) and attempt to propose a new definition. This alternate approach of legal discourse insists that property is an unmediated binary legal relationship between subjects—a relationship that does not require a mediating res or object. The fasces of property is unbundled into a random and contingent bundle of rights with no essential characteristics.

I have suggested that the axe and the bundle of sticks—the positive and negative manifestations of the masculine phallic metaphor—reflect the failed two strategies by which the Masculine tries to avoid confronting castration and achieve the wholeness of immediate binary relationship. The first strategy is simple denial—the subject insists that he still has "it." In law this is done by repressing the relational, mediated

aspect of property and emphasizing the binary relation of subject to owned object in possession. Under the second strategy he pretends that he gave up the original Phallus in exchange for a promised future access to an object of desire. In law this is done by repressing the objective mediator of property and emphasizing the binary relation of subject to subject in exchange.

If we view property theory in terms of this urge to deny castration and achieve wholeness by collapsing the three orders, we gain insight into the tendency to picture property concepts in terms of phallic metaphor. We envision property in terms of the archetype of the penis and the female body. In the former manifestation, we imagine property as a physical object that we see, hold, and wield. In the latter manifestation, we imagine it as a physical object that we either protect from invasion or occupy and enjoy. When men speak of possessing a woman in sexual intercourse, they are not merely using a metaphor or invoking an analogy to the possession of property. The two are not merely similar; they are psychoanalytically identical.^[8]

If the conflation of the Phallic concept of property with phallic concepts of physicality reflects our psychic constitution, its recurrence no longer seems merely surprising. It risks seeming inevitable. It may be impossible for people situated in our society to speak about property without descending to phallic imagery to describe Phallic concepts. Thus, on one level I mean to critique, but not to criticize, those legal writers who reinstate the phallic metaphor of property even as they purport to deny it. On another level, however, I argue that psychoanalytical theory's exposure of the identification of the symbolic and the real as imaginary as a doomed attempt to collapse the three orders of the psyche enables us to rethink the relation and to try to imagine other, more adequate ways of thinking about property. The attempted collapse of the three orders through the use of the phallic metaphor is doomed because it is merely a denial or repression of the fact of castration—consciousness consists of three orders, the subject is split, and immediate sexual relations are impossible. What is required is not the denial but the sublation or transcendence of castration.

This will not be an easy task, however. The postmodern subject hypothesized by Lacan is paradoxically constrained by its own radical freedom. If subjectivity, law-property, and language-sexuality are mutually

[8] Erich Neumann, The Great Mother: The Analysis of the Archetype 98–99 (Ralph Manheim trans., 1963).

constituting, then the subject is not merely the subject of the symbolic order; the subject is also subject to the symbolic order. Because the symbolic order in which we are currently located is neither natural nor inevitable, Lacanian thought holds out the theoretical possibility of creating radically different alternate orders. But changing the symbolic order would entail simultaneously and radically changing the subject. Destroying the symbolic would destroy the subject. The question, therefore, is whether the symbolic and subjectivity can be sublated in the sense of preserved as well as negated. This is the goal of achieving the Feminine in her guise as the not yet.

In this chapter, I will examine the work of a number of legal theories and doctrines which reflect the masculine phallic metaphor for property. I will discuss the positive version of the metaphor first and then turn to the negative. In each case, I will first present an example of the use of the metaphor in legal theory, and then follow it with an example from commercial law.

Representative of those who wield the axe of positive masculine phallic jurisprudence is Jeremy Waldron. Waldron agrees that contemporary neo-Hohfeldian analysis makes the task of defining property difficult, but he argues that it can be done by applying a Wittgensteinian family-resemblance analysis starting with the archetype of ownership of physical objects. Waldron represents the revival of property theory against the twenty-year assault that property has undergone from both the Critical Legal Studies and Law and Economics movements.^[9] I will show that Waldron's implicit masculine theory of property is inadequate because it reduces property to possession and conflates possession with sensuous grasp of tangible things and thereby has no account of the rights of enjoyment and alienation and can only deal with intangible property indirectly through analogy.

After examining Waldron's theory, I then turn in section II.B to what must be the most extreme version of the masculine phallic metaphor in positive law—the commercial law doctrine of "ostensible ownership" as

[9] Most of the writers I discuss in this section are generally associated with the liberal or critical left. This is because I am intuitively drawn toward the progressive political position and, therefore, find left-leaning jurisprudence more interesting. The reader should not infer from this that the right is any less guilty of the phallic metaphor. I am, perhaps, more critical of what I consider insufficient arguments offered in support of positions I wish to support than of those I wish to oppose on other grounds. I am in the early stage of applying my property theory to Law and Economics. See Schroeder, Three's a Crowd, supra note 7.

explicated by Douglas Baird and Thomas Jackson. This is presented as an example of the pernicious effect of unconscious use of this metaphor—unwieldy and confusing legal doctrine. This dogma holds that property is so archetypically physical that any property interest which cannot literally be reduced to the grasp of a tangible thing (either because the interest is noncustodial or because the object of the property interest is intangible) is problematic and fraudulent as a matter of law. Such interests are to be voided unless they can be "cured" through elaborate analogies to sensuous grasp. I will show that, regardless of the historicity of the doctrine, its presumptions are absurd as an empirical matter. We cling to this doctrine for psychoanalytic reasons despite its inaccuracy and disutility. Here I return to the Hegelian property theory introduced in chapter 1 and show how it enables us to get beyond the phallic metaphor in order to address directly the issues which the ostensible ownership tries unsuccessfully to solve.

I next consider the thesis that property, if not dead, is in the process of disintegration. Thomas Grey is probably the most prominent theorist who adopts the bundle-of-sticks metaphor. He argues that if property cannot be conceived as a unitary right with respect to tangible things, then it must lose its meaning as a legal category. Because property cannot have this meaning, it does not exist. But this thesis depends on the proposition that property only has meaning if conceptualized as the sensuous grasp of physical things by a single human being. I will show that the bundle-of-sticks theory of property is inadequate because it insists on denying the existence of property despite its continued existence as a well-recognized category of law and a vigorous legal and economic practice.

Finally, I turn to the supposed doctrinal basis for Grey's allegation of the disintegration of property. By examining the writings of Karl Llewellyn, I will disprove the well-known cliché that by rejecting common-law "title" analysis, the drafters of the Uniform Commercial Code (the "U.C.C.") disaggregated property into a bundle of sticks. The U.C.C., in fact, not only incorporates traditional unitary property concepts, it adopts the positive masculine phallic metaphor with a vengeance through a radically physicalist notion of property. Indeed, the realists departed from the common law precisely because they perceived it as insufficiently physical. In other words, although it is a common assumption among lawyers that the U.C.C. imagines property as a bundle of sticks, it in fact implicitly reimagines property as an axe. Or, more accurately, it unstably alternates between the two.

II—
The Axe:
The Positive Version of the Masculine Phallic Metaphor

[O]ne must discard the prejudice that truth must be something tangible.^[10]

A—
Waldron and the Embrace of the Masculine Phallic Metaphor

1—
Defining Property

Jeremy Waldron is one of the few contemporary theorists who have tried to defend the institution of private property from attacks by progressives within the rights tradition without adopting the predominant "right wing" rights position—libertarian absolutism.^[11] In his insightful book The Right to Private Property,^[12] Waldron specifically examines a modified Lockean natural-law liberal philosophy or liberty justification, as well as a Hegelian speculative philosophy or freedom justification.^[13]

Unfortunately, Waldron unwittingly adopts the affirmative masculine phallic metaphor—property as axe. His definition of property reduces property to the single element of possession and envisions possession as the sensuous grasp of a tangible thing. Other rights with respect to other things are not property per se, although they might be analogized to property.

Waldron's analysis is particularly illuminating because, on the one hand, he avoids the error that many defenders of property make in assuming

[10] G.W.F. Hegel, Hegel's Science of Logic 50 (A.V. Miller trans., 1969).

[11] See generally Jeremy Paul, Can Rights Move Left? 88 Mich. L. Rev. 1622 (1990) (reviewing Jeremy Waldron, The Right to Private Property (1988)). I will not here address Waldron's often insightful analysis of how to reconcile the concept of an individual's rights to private property with the rights of the community to limit those rights. For present purposes I am only interested in the imagery implicit in Waldron's definition of property, or what Paul calls "the somewhat tedious, early portions of the book." Id . at 1640.

[12] Jeremy Waldron, The Right to Private Property (1988).

[13] I use the term "liberty" to refer to the negative freedoms—that is, freedom "from"—emphasized by classical liberal natural-rights theories. I use the term "freedom" to refer to concepts of affirmative freedoms—that is, freedom "to"—emphasized by Hegel, among others.

Of course, libertarianism also traces its origins to Locke. The differences between libertarian absolutism and other Lockean liberty theories of property spring primarily from the greater emphasis given by the latter to the so-called Lockean proviso: One is entitled to property with which one has intermixed one's labor so long as there is "enough, and as good left in common for others." John Locke, Two Treatises of Government bk. II 27, §27, 288 (Peter Laslett ed., 2d ed. 1967) (3d ed. 1698, corrected by Locke).

that the core concept of property is self-evident and not in need of explication.^[14] Rather, he takes seriously the literature questioning the coherence of the concept of property and acknowledges that he cannot purport to justify property without first defining it:

Many writers have argued that it is, in fact, impossible to define private property—that the concept itself defies definition. . . . If private property is indefinable, it cannot serve as a useful concept in political and economic thought: nor can it be a point of interesting debate in political philosophy. Instead of talking about property systems, we should focus perhaps on the detailed rights that particular people have to do certain things with certain objects, rights which vary considerably from case to case, from object to object, and from legal system to legal system.^[15]

On the other hand, Waldron does not fall into the error committed by many leftist critics who adopt the bundle-of-sticks imagery. As we shall see, these critics assume that if a simple, sharp-edged analytic definition of property is not possible, then no definition of property is possible. On this view property ceases to exist as a meaningful legal and economic institution.

A term which cannot be given a watertight definition in analytic jurisprudence may nevertheless be useful and important for social and political theory; we must not assume in advance that the imprecision or indeterminacy which frustrates the legal technician is fatal to the concept in every context in which it is deployed.^[16]

Waldron makes reference to modern and postmodern theories of fuzzy definitions:

[14] Richard Epstein, in contrast, acknowledges Thomas Grey's critique (which I shall discuss in detail in section III.A) but largely dismisses it: "The great vice in Grey's argument is that it fosters an unwarranted intellectual skepticism, if not despair. He rejects a term that has well-nigh universal usage in the English language because of some inevitable tensions in its meaning, but he suggests nothing of consequence to take its place." Richard Epstein, Takings: Private Property and the Power of Eminent Domain 21 (1985).

Epstein thinks that Grey confuses the problem of applying a concept in various complex contexts with the vagueness of the concept itself. I agree. I distinguish Waldron from Epstein, however, in that the former more directly recognizes his responsibility to grapple with and articulate the concept of property, whereas Epstein assumes that its meaning is uncontroversial. Specifically, he believes that Blackstone's definition is more than adequate for most purposes. Those issues that seem vague should be kept in the proper perspective as belonging at the margins of property issues. Id . at 22–23.

Epstein also thinks that political considerations drive Grey's critique more than real difficulties in definition. I believe that there is some truth to Epstein's complaint.

[15] Waldron, supra note 12, at 26.

[16] Id . at 31.

I want to consider whether any of the more interesting recent accounts of the nature and meaning of political concepts—such as Wittgenstein's idea of family resemblance, the idea of persuasive definition, the distinction between concept and conception, or the idea of "essential contestability"—casts any light on the question of the definition of private property.^[17]

Waldron argues that "private property is a concept of which many different conceptions are possible, and that in each society the detailed incidents of ownership amount to a particular concrete conception of this abstract concept."^[18] Waldron defines the "concept" of property as follows:

The concept of property is the concept of a system of rules governing access to and control of material resources . Something is to be regarded as a material resource if it is a material object capable of satisfying some human need or want. . . . Scarcity, as philosophers from Hume to Rawls have pointed out, is a presupposition of all sensible talk about property.^[19]

He continues:

The concept of property does not cover all rules governing the use of material resources, only those concerned with their allocation. Otherwise the concept would include almost all general rules of behaviour. . . . As Nozick puts it, the rules of property determine for each object at any time which individuals are entitled to realize which of the constrained set of options socially available with respect to that object at that time.^[20]

I concur with Waldron's conclusions as to both the need for and the possibility of defining property and distinguishing it from other legal relations. In particular, Waldron's approach toward definitions, his recognition that property is and will probably remain a flourishing legal and economic institution in spite of—or because of—its open-ended and fluid nature, and his realization that the institution of private property seems intuitively related to liberty and freedom considerations are much more successful than the analysis offered by critics such as Grey which I discuss

[17] Id .

[18] Id . Waldron also writes:

For one thing, private property is a concept of which there are many conceptions: legal systems recognize all sorts of constraints on the rights of owners, and the crucial question is not whether there should be constraints, but whether the particular constraints we need defeat the original aims of our right-based argument.

Id . at 5.

[19] Id . at 31 (emphasis added).

[20] Id . at 32.

in section III.A. Unfortunately, at the next stage Waldron's analysis devolves into precisely the unsophisticated thinking that Grey and Vandevelde associate with—and criticize as—the rigid, unworkable, traditional model of property. That is, Waldron adopts the paradigm of sensuous grasping as the norm or epitome of property against which all other forms of property must be analogized. Indeed, it is not even clear that he considers legal rights with respect to intangibles to be true property at all.

2—
The Physicality of Property

As we have seen, Waldron first defines property as the regime for the allocation of material resources. That is, he reduces property to the single masculine element of possession—the identification of an object to a subject—and represses the elements of enjoyment and alienation. In turn, he defines the term material resources as those things that are possible objects of human wants and needs. In the following passage, however, he limits material objects to physical things, which he contrasts with noncorporeal things:

I have defined property in terms of material resources, that is, resources like minerals, forests, water, land, as well as manufactured objects of all sorts. But sometimes we talk about objects of property which are not corporeal: intellectual property in ideas and inventions, reputations, stocks and shares, choses in action, even positions of employment. . . . This proliferation of different kinds of property object is one of the main reasons why jurists have despaired of giving a precise definition of ownership. I think there are good reasons for discussing property in material resources first before grappling with the complexities of incorporeal property.^[21]

Note that Waldron has already taken an unacknowledged step toward the identification of property with physicality that will color the rest of his argument. He defines human wants and needs, and therefore property, in terms of purely animal satisfaction of physical limitations. This is an odd choice from a philosopher like Waldron who wishes to explore justifications of property from a Lockean and a Hegelian perspective. Neither Locke nor Hegel justifies property in terms of the satisfaction of animalistic physical needs. Rather, both justify property by reference to the most sublime and abstract notions of what makes humans truly human—liberty and freedom, respectively.

Waldron locates property in the uninterpreted, preimaginary, prelinguistic realm of the real in which humans experience "need." But, as we

[21] Id . at 33.

have seen, property does not belong in the animalistic, physical realm we identify with the real, or the imagistic realm of the imaginary, in which Waldron immures it. Property is the object of human desire . Waldron, however, presumes that property relates to physical want—what Lacan calls "needs." He wants to find an object in the imaginary to take the place of the objet petit a that he can identify with some physical object to stand in for the symbolically prohibited real object of desire and function as the cause of desire. Consequently, Waldron wants to presume that property is originally a physical relationship.

This may explain why Waldron cannot—as he refreshingly admits^[22] —follow Hegel's argument as to the necessary role of property in the development of human personhood. Hegelian property has nothing to do with physical requirements.^[23] As I have discussed, property is the means by which the abstract person as self-consciousness attains subjectivity. This purely logical construct does not yet even have a body, let alone physical needs.

In other words, Waldron makes precisely the phallic metaphoric conflation that Lacan locates as the identification of gender roles—or sexuated positions—with anatomy. Waldron conflates the Phallic with the phallic and desire with need in an imaginary attempt to collapse the symbolic and the real.

3—
Waldron's State of Nature

Waldron defends his emphasis on corporeal objects by an appeal to something like a state of nature. Waldron argues:

First, we should recall that the question of how material resources are to be controlled and their use allocated is one that arises in every society. . . . The question of rights in relation to in corporeal objects cannot be regarded

[22] Waldron writes: "There are fewer difficulties with the Hegelian approach, though it has to be said that the link between private property and the ethical development of the person is rather obscure and, in any case, never established as an absolutely necessary connection." Id . at 4. If, however, one concludes that human nature is driven by the desire to be desired by another subject, and that subjectivity is intersubjectivity mediated by the exchange of the object of desire—as do both Hegel and Lacan—and if property is the regime of the exchange of objects, then by definition property is necessary for the development of subjectivity.

[23] "The rational aspect of property is to be found not in the satisfaction of needs but in the superseding of mere subjectivity of personality." G.W.F. Hegel, Elements of The Philosophy of Right 74 (H.B. Nisbet trans. & Allen W. Wood ed., 1991) [hereinafter Hegel, The Philosophy of Right]; see also Merold Westphal, Hegel, Freedom, and Modernity 22 (1992).

as primal and universal in the same way. In some societies, we may speculate, the question does not arise at all either because incorporeals do not figure in their ontology or, if they do, because human relations with them are not conceived in terms of access and control. That is a point about incorporeals in general. Turning to the incorporeal objects we are interested in, it is clear that questions about patents, reputations, positions of employment, etc. are far from being universal questions that confront every society. On the contrary, one suspects that these questions arise for us only because other and more elementary questions (including questions about the allocation of material objects) have been settled in certain complex ways.^[24]

In other words, Waldron tries to defend his analysis by hypothesizing an anthropology of societies without incorporeals.

Of course, liberal philosophers, including Locke, have traditionally started their analysis from a hypothetical state of nature. At first blush, therefore, Waldron's approach might seem worthwhile for the consideration of a Lockean natural-rights justification of property. On further reflection, however, Waldron's approach is inappropriate to an analysis of liberal philosophy. The state of nature posited by liberals such as Locke presupposes pre-social individuals. Waldron starts with a hypothesized second stage of human development in which social individuals are already living in societies. An analysis of property as it might exist in even such a primitive society is irrelevant to the Lockean search for a pre-social natural right of property.

More important, despite Waldron's assertions to the contrary, I believe that it is not possible to hypothesize a society of entities identifiable as human beings in which incorporeal property—such as status, religious objects, artistic creations, crafts, objects of beautification, and other symbolic and imaginary objects—does not play a central role. Creatures living together solely within the realm of physical needs and wants are not human subjects but only animals living in packs. The human subject is the speaking subject of language in the symbolic order. I can, on the other hand, hypothesize societies of human beings where incorporeals are the primary source of property. For example, such a society might exist on a hypothesized tropical island with abundant fruit, vegetables, water, and space obviating scarcity for basic human needs and wants. That is to say, Waldron believes that tangible property is more fundamental to human personality than incorporeal property. I argue that the opposite is true.

[24] Waldron, supra note 12, at 34.

Waldron's approach poses even more difficulty when we move to the considerations of actual "primitive" or tribal societies. I am not an anthropologist, so I am wary of making empirical claims, but I nevertheless believe that no contemporary society exists solely in the world of physical needs without rich and complex symbolic objects of desire.^[25]

In the passage quoted above, Waldron tries to suggest that those primitive societies that do have symbolic objects—such as religious objects or status—do not allocate these objects through a recognizable property regime. This objection fails for at least two reasons.

First, Waldron's own definition of property—a regime of access and control of scarce resources—would apply on its face equally to incorporeals and corporeals. Even if we are squeamish about speaking of religious objects and worship in terms of property, any society that recognizes a priesthood with special access and passage to the divine, that recognizes the efficacy of ritual or taboo, or that requires initiation into religious mysteries or status—such as manhood—subjects incorporeals to a regime of access and control of the objects of human wants. This is Waldron's definition of property. Indeed, in his seminal anthropological study of archaic property relations, Marcel Mauss emphasized that in so-called primitive or premarket societies property, law, family, and religion were inextricably interconnected.^[26]

In contradistinction, the two philosophies on which Waldron supposedly relies—Hegelianism and Lockean liberalism—do not flinch from

[25] The Tasadays are the only contemporary society I know of to approach this description. The Tasadays, a group of twenty-six people, caused a stir in 1971 when they were "discovered" in the Philippines as the only contemporary Stone Age tribe. See, e.g ., Further Studies on the Tasaday (D.E. Yen & John Nance eds., 1976); The Tasaday Controversy: Assessing the Evidence (Thomas N. Headland ed., 1972); Kenneth Macleish, The Tasadays: Stone Age Cavemen of the Mindinao , Nat'l Geographic, Aug. 1972, at 219. Arguably, the Tasadays suggest the possibility of Waldron's model of a people having little or no intangible goods. Unfortunately, since the late 1980s suspicion has spread widely in the scientific community that the Marcos regime invented the Tasadays as a crude hoax to gain control over tribal lands. Bruce Bower, 19-Year Debate over "Stone Age" Tasaday Thrives in Rain Forest , L.A. Times, Jan. 8, 1990, at B2. See also Shannon Brownlee, If Only Life Were So Simple , U.S. News & World Rep., Feb. 19, 1990, at 54.

[26] The things transferred were sometimes useful goods but often ritual or decorative items of spiritual significance. The purpose of the property relationship was not so much to allocate goods, as Waldron presupposes, but to establish status and relations of mutual obligation within and among families, clans, and tribes.

Moreover, what they exchange is not solely property and wealth, movable and immovable goods, and things economically useful. In particular, such exchanges are acts of politeness: banquets, rituals, military services, women, children, dances, festivals, and fairs,

Marcel Mauss, The Gift: The Form and Reason for Exchange in Archaic Societies 5 (W.D. Halls trans., 1990).

identifying religion with property. Hegel expressly recognized that our beliefs, religious positions, and liturgical objects are every bit as much external symbolic objects of desire as food and clothing. Similarly, as I shall discuss later, the Framers of the U.S. Constitution, who were, of course, deeply influenced by Lockean liberalism, were not shy about analyzing religion in terms of property. They sought to justify constitutional freedoms of speech and religion precisely on the grounds that men have a natural property right in their opinions and beliefs.

Second, if Waldron wishes to assert that primitive regimes of access to religious or other symbolic objects significantly differ from the type of access and control that we associate with property, he has the burden of articulating that difference. Waldron recognizes that his stated project of justifying property requires that he be able to define property and distinguish it from other interests, and he starts from the proposition that a philosophic project requires careful definition. If he cannot identify the difference between the regime of access to religious and status objects and other regimes, his attempted definition of property fails on his own terms.

Most important, there is a practical problem with Waldron's specific choice of the limited concept of property that serves as the starting point for his analysis. When one chooses to argue from a simple hypothetical, the ultimate issue is not whether there is any empirical society that matches the hypothetical. Rather, the question is whether the hypothetical simplifies and epitomizes fundamental aspects of our society so as to serve as a useful analytical model. Indeed, Waldron is very sensitive to the idea that property exists not merely as an abstract philosophical concept but as a fundamental legal, economic, political, and social institution in our society. Unfortunately, I believe that Waldron's hypothetical is so alien as to be misleading.

As we have seen, Waldron has reduced the concepts of material resources and human wants to what I have referred to as seemingly real needs. The problem with this should be obvious. By reducing these concepts in this fashion, he has excluded from his starting analysis of property all interests beyond those necessary for subsistence. As a result, all property interests in the symbolic economy—including incorporeals and

luxury goods defined broadly as anything above the satisfaction of animal need—have already been identified as problematic. It is possible to take the position that no institution of property can be philosophically justified beyond the subsistence level.^[27] By definition, that position would always lead to the conclusion that the property regime of a relatively wealthy, nonsubsistence economy, such as contemporary American society, could never be justified. Waldron's goal, however, is not to take the radical neo-Proudhonian or Marxian position that property is theft. He wishes to justify at least a limited property regime in a modern society. His choice as a starting point, though, seems antithetical to his purpose.

4—
Waldron's Denial of Incorporeality

a—
Need or Desire?

In his analysis of property, Waldron's rhetoric quickly falls into the Phallic -phallic confusion of the physicalist metaphor for property. Waldron states, for example, that "it is often illuminating to characterize the solutions [to questions concerning the allocation of incorporeals] in terms which bring out analogies with the way in which questions about property have been answered."^[28] Waldron continues:

For example, once it is clear that individuals have rights not to be defamed, it may be helpful to describe that situation by drawing a parallel between the idea of owning a material object and the idea of having exclusive rights in a thing called one's "reputation." Such talk may take on a life of its own so that it becomes difficult to discuss the law of defamation except by using this analogy with property.^[29]

Let us recapitulate Waldron's reasoning. First, he argues that property is a regime relating to the access and control of the objects of human wants and needs. Insofar as this definition refers to "wants," one does not necessarily have to limit property to the allocation of physical things. The colloquial term "want" could be read expansively to include the technical psychoanalytical concept of desire. This would make the theory con-

[27] The alternate interpretations of the so-called Lockean proviso are variations on this argument. The narrow libertarian reading justifies virtually all exclusive property rights this side of starvation of the poor. An expansive reading sharply limits property rights in favor of egalitarian and communitarian values. See John Stick, Turning Rawls into Nozick and Back Again , 81 Nw. U. L. Rev. 363 (1987).

[28] Waldron, supra note 12, at 34.

[29] Id .

sistent with the Hegelian-Lacanian concepts of objects of property as potentially being anything external to abstract personality and of property as the regime of intersubjective exchange of the object of desire.

Waldron rejects this interpretation in his second move. Although he purports merely to restate this definition, he in fact changes it by limiting the term "want" to the Lacanian concept of need for physical objects. That is, he tries to move property out of the symbolic regime of law, into the preconscious, prelinguistic realm of the real.

Waldron's third move is to argue that by analogy we can apply to incorporeal objects legal principles developed by considering corporeal objects. In his fourth and final move, Waldron comes full circle to Grey's denial of noncorporeal property. Only corporeal object relations are property relations. Waldron no longer purports to apply principles developed in connection with corporeal objects by analogy to develop the property law of noncorporeals. Rather, he purports to apply property law concepts—which by implicit definition relate only to corporeal objects—by analogy in order to develop a new law of noncorporeal object relations.

Waldron continues his argument by assertorially denying the noncorporeal nature of the objects of legal relations that are traditionally considered to epitomize property. It has often been noted that the most archetypical type of property—real property—is not a right to soil or other physical things but to estates in land. Real property is not real in the Lacanian sense.^[30]

Waldron attempts to counter this view:

We might accept the argument but insist that spatial regions can still be regarded as material resources. Although they differ ontologically from cars and rocks they also seem to be in quite a different category from the complexes of rights that constitute familiar incorporeals—patents, reputations, etc. It is philosophically naive to think that the fact that we have to regard regions as property objects adds anything to the case for regarding, say, choses in action in that way. The second response is more subtle. We may concede that land, as conceived in law, is too abstract to be described as a material resource. But we may still insist that the primary objects of real

[30] This disturbing nontangibility of realty is reflected in the common law. Like us, our legal ancestors had difficulty imagining the transfer of property otherwise than as the physical delivery of tangible things. Consequently, they did not recognize a conveyance by deed alone but required that it be structured as closely as possible to the physical delivery of chattel. This led to the ritual known as "delivery of seisin"—an attempt to identify a real manifestation of the symbolic relationship of property. A.W.B. Simpson, A History of the Land Law (2d ed. 1986).

property are the actual material resources like arable soil and solid surfaces which are located in the regions in question. Until recently, these resources have been effectively immovable and so there has been no reason to distinguish "land as material" from "land as site." But developments like modern earth-moving and high-rise building necessitate a more complex and sophisticated packaging of rights over these resources. Thus the concept of land as site has now had to be detached from its association with immovable resources and employed on its own as an abstract idea for characterizing these more complicated packages of rights. Still, in the last analysis, the system of property in land is a set of rules about material resources and nothing more.^[31]

These arguments evidence Waldron's deep ambivalence concerning corporeality and property. He provides these arguments to support his assertion that, first, we should start by analyzing corporeal objects because they are more basic and, second, that real property interests are corporeal. The statement just quoted, however, seems to be an unacknowledged shift in position. After saying that he will start with the property of material objects because they are most basic, he makes an implicit admission that even though the most basic property rights concern realty, and realty is not a physical object, he finds it useful to analogize land to physical objects. Because it is convenient to think of realty interests as physical objects, we will say that realty interests are physical objects without considering whether or not this is actually the case. In other words, Waldron all but admits that he starts with material objects not because they are the most basic objects of property but because they seem simpler to think about.

b—
Waldron's Empirical Arguments for the Phallic Metaphor

Waldron wants to suggest that only modern technology has made the identification of realty interests with the underlying land problematic. I question both the historical and empirical accuracy of his statement.

As any first-year law student knows, the concept of realty as a specific plot of land occupied and exploited by a single owner is a relatively modern development in Anglo-American culture. Historically, real property consisted of the system of estates.^[32] Estates did not consist merely in the

[31] Waldron, supra note 12, at 36–37 (footnote omitted).

[32] Indeed, to be precise, when the word "property" started to come into legal parlance in the seventeenth century, it may have more accurately referred only to personal property rights of private citizens in personalty. This is because the word "property" was defined as the "highest right that a man hath or can have to any thing." G.E. Aylmer, The Meaningand Definition of "Property" in Seventeenth Century England , Past & Present, Feb. 1980, at 87, 89–94. In seventeenth-century England—and technically in the contemporary United States—only the sovereign can have property in land in the sense of the highest allodial right. Consequently, legal discussion concerning the interests in land of ordinary citizens involved not property in land but only estates. In contradistinction, anyone can have a full property in personalty. Despite this, according to Aylmer, some seventeenth-century lawyers tended to refer sloppily to property in estates owned by citizens. Id .

right to occupy, farm, mine, or otherwise physically exploit specific pieces of realty; they included a complex network of rights, responsibilities, and status. The estates granted to nobility, for example, were often tied to a title and were conditioned on the obligation to provide their liege with the military service (or its financial equivalent) of a specified number of men for a specified number of days. Numerous persons held different property rights with respect to a given piece of realty. Although some of these were merely temporal divisions of the right to occupy the land—such as life estates, reversions, and so on—many others were not. Not only social status but also what we would call governmental and ecclesiastical positions and functions were tied to estates. Other real property interests included, among others, banalities —which included the right to operate certain "utilities" in a village such as a mill, oil press, or bake oven located in a village—and advowsons —the right to name clerics to a specific church and income.^[33] Indeed, the traditional dichotomy between real and personal property may originally have been in large part jurisdictional rather than substantive. Real property rights referred not to property interests relating to land per se but to those causes of action for specific relief that could be brought in the king's court.^[34]

Although many of these medieval estates exist only as vestigial organs in late-twentieth-century America, other partial estates have taken their place. Let us look at a very simple example of residential real estate in New York City—my apartment. A corporation named Hudson Mews Apart-

[33] See C.B. MacPherson, Property: Mainstream and Critical Positions 7 (1978).

[34] As an empirical matter, however, such real causes of action may have related primarily, though not exclusively, to claims concerning rights in land.

The name "real property" itself is taken from the procedures, the real actions, through which landowners' rights were specifically enforced. The dominant status of real property law, early established, long persisted, and in Blackstone's time that body of law, viewed as the mechanism either for the resolution of land disputes, or, as it was used by the expert conveyancers, for the cooperative, consensual organization of land ownership, remained the most important and intellectually developed branch of the common law.

A.W.B. Simpson, Introduction to 2 William Blackstone, Commentaries on the Laws of England, at v (A.W. Brian Simpson ed., 1979) [hereinafter Blackstone's Commentaries]. That is, real-property actions concerned the enforcement of manorial rights, not all of which would be considered tied to land by modern standards.

Duncan Kennedy criticizes Blackstone's categorization of certain rights as real property. See Duncan Kennedy, The Structure of Blackstone's Commentaries , 28 Buff. L. Rev. 205, 344–46 (1979). Simpson's point is that Blackstone's characterization was not an idiosyncratic choice but a reflection of the legal practice of his time.

It is tempting to suspect that the terminology "real property" comes from its original enforcement in the royal courts. Indeed, the word "realty" can also mean "royal" and "realm." Unfortunately, these two meanings of "realty" seem to derive from entirely different roots. The former, referring to property, originates from the Latin res , which means "thing" or "matter." The latter refers back to rex or "king," which in turn relates to a root meaning "to straighten or put in line." That is, it means "ruler" in both senses of the term. 13 The Oxford English Dictionary 272, 279 (2d ed. 1989); see also Eric Partridge, Origins: A Short Etymological Dictionary of Modern English 553, 561 (1966). Perhaps the development of such similar English words for these different concepts originating in different roots is a folk etymology.

ment Corporation owns the equity in the building and land where I live. A bank holds a mortgage on the building granted by the corporation. Various parties including Time-Warner Cable Television, Atlantic Bell, ConEdison, and the U.S. Postal Service have easements to enter and keep objects—such as coaxial cables and telephone and power lines—on the premises. The corporation owns rights of access to hook up to the water mains and pipelines that run under the street in front of the building. The use of the land and building is subject to extensive regulation by the City and State of New York. As the building is located in an unusual (for Manhattan) location behind a private courtyard, the corporation also owns a right-of-way across a narrow strip of land—owned in fee by someone else—which separates our garden from the street. I, as tenant in the entirety with my husband, own the equity in 625 common shares of the corporation, and we are lessees of a proprietary lease granted by the corporation for the apartment in which I live. A savings and loan association owns an Article 9 security interest in the shares and the lease. Although the terms of my lease are coterminous with my ownership of the shares, both my occupancy of the lease and my ownership of the shares are subject to my performance of certain obligations under the bylaws of the corporation—including paying an amount equivalent to my pro rata share of the corporation's mortgage debt and operating expenses—and under the terms of the agreement with my S and L. The corporation also has a security interest in my rights to secure my obligations and an intercreditor agreement with my S and L governing its respective property rights as a secured creditor. My right to alienate my shares and my lease is restricted by the terms of the bylaws of the cor-

poration and my security agreement with the S and L. Although shareholders occupy most of the other apartments in my building—sometimes individually and sometimes through various forms of joint tenancy—some shareholders sublet their apartments to unrelated tenants. The corporation has granted the shareholders and lessees limited rights to use the common areas of the building and the garden, as well as the right-of-way. Each tenant has the exclusive privilege to use a portion of the basement for storage. The corporation leases the basement apartment to our superintendent, whose lease is coterminous with his employment, and so on.

Commenting on modern-day estates in land, Waldron ends his argument with the following non sequitur:

Thus, the concept of land as site has now had to be detached from its association with immovable resources and employed on its own as an abstract idea for characterizing these more complicated packages of rights. Still, in the last analysis, the system of property in land is a set of rules about material resources and nothing more.^[35]

Thus, Waldron would conclude that ultimately all the interests concerning my apartment building are concerned with "material resources" in his definition of physical things. He might try to argue that my ownership interest primarily concerns my sensuous exploitation of physical walls, floors, ceilings, fixtures, and so on. But the interests of the financial institutions, the telephone company, the cable TV company, the electric company, the postal service, the laundry company, and Sal the Super are not primarily related to the physical location. Rather, they are rights to receive income and are not, as Waldron suggests, substantially different from the rights to income from the exploitation of any other form of noncorporeal property. Moreover, even my apartment's value to me is not primarily based on my physical needs. The value consists of a combination of its objective exchange value—the market price—and its subjective use value to me. The use value relates to a variety of symbolic and imaginary concerns, as well as my real needs. Examples include the apartment's physical attractiveness, its relative quietness, its proximity to both my office and a wide variety of restaurants and entertainment, the artsy population of the neighborhood, and so on. Indeed, when one compares the cramped quarters in which we New Yorkers tend to live with the housing occupied by people of comparable economic resources in other parts of the

[35] Waldron, supra note 12, at 36–37.

country, it is obvious that we value our property despite its failure to meet our real physical wants.

Waldron admits that if ownership is defined in terms of wealth, then

we will certainly have to conjure up incorporeal things to correspond to the complex legal relations that in fact define their economic position. But if we say instead that property is a matter of rules about access to and control of material resources, but not necessarily about private ownership, then we may still say that a man's wealth is constituted for the most part by his property relations. He may not be the owner of very many resources; but the shares he holds, the funds he has claims on, and the options and goodwill he has acquired, together define his position so far as access and control of material resources is concerned.^[36]

Once again, Waldron distinguishes between relations concerning noncorporeals and "property"—that is, access to material (i.e., physical) resources. The only true property is what he sees and holds. His argument seems to be based on the agrarian myth that all wealth ultimately comes down to physical things—the land, gold, and so on. Everything else is merely an indirect interest in the physical. To Waldron, all our creations—art, music, medicine, technology, knowledge—ultimately relate to satisfaction of our physical, animal needs and wants. Like the infant, we remain preconscious in the domain of the real.

But even if one accepts Waldron's assertions as to the source of wealth, it does not follow from this that property relations are primarily or even archetypically relations affecting the access to and control of physical things. His very discussion indicates that access to and control of wealth—even if defined narrowly as physical things—are legal, symbolic relations, not the mere immediate sensuous contact with, and physical exploitation of, tangible things. Property, as a legal relation, is the way we as human beings move away from mere sensuous experience of the outside world to symbolic and social relations among human beings with respect to the outside world.

Indeed, as human beings, even our needs are not purely animalistic or natural. In the words of Renata Salecl:

For Lacan the concept of need is linked to the natural or biological requirements of human beings (food, for example). But for human beings it is essential that these needs are never manifest as purely natural needs. Needs are always defined by a symbolic context: if we are hungry, for ex-

[36] Id . at 37.

ample, we do not simply grab the first available food, but rather we think about what we shall eat and then prepare food in a special way.

When put into words, a need becomes articulated in the symbolic order. . . . Desire arises as the excess of demand over need, as something in every demand that cannot be reduced to a need.^[37]

When I eat food, my property in the food is not the animal act of consumption and digestion but the legal recognition of my right to possess and use or alienate the food. In our society, property rights are these indirect, mediated relations among people through our relationship with the external world. It is meaningless to speak of property without speaking of our relation to these noncorporeal things, even if they ultimately indirectly lead to the access to and control of corporeal things. And yet, it is impossible to do so through the positive masculine phallic metaphor that Waldron unwittingly adopts.

B—
Some Realism about Legal Surrealism:
The Positive Phallic Metaphor and Ostensible Ownership

1—
Grasping at Straws

Much of commercial law doctrine—the private law of personal property—is firmly in the grasp of the masculine phallic metaphor of property as axe. The legal concept of possession is conflated with the sensuous experience of grasping a physical thing in one's fist. This metaphor is merely inept for the analysis of noncustodial property interests in tangible chattels which, at least theoretically, could be grasped. It is bizarre when applied to the property law of intangibles which is an increasingly important subject of commercial law. Rather than being simple and intuitive as its proponents claim, the metaphor of sensuous grasping can only be maintained through increasingly elaborate auxiliary metaphors and analogies. If legal realism was an attempt to make commercial law more nearly reflect actual economic practice, then the phallic metaphor is legal surrealism.

In this section, I explore the pernicious use of the physical metaphor in commercial law scholarship and doctrine with particular emphasis on the law of perfection of noncustodial security interests and security interests in intangible property. I will concentrate on the most extreme and

[37] Renata Salecl, The Spoils of Freedom: Psychoanalysis and Feminism After the Fall of Socialism 124 (1994).

surrealistic example of the affirmative version of the physical paradigm in commercial law—the doctrine of "ostensible ownership." To the proponents of this doctrine, property should not merely be grasped, it must be wielded in the sense of being displayed for all to see. Not only does the sensuous grasp of a physical thing erect a legal presumption that the grasper is the owner, but property interests which do not, or cannot, take the form of sensuous grasping—such as when the object of the property interest is itself intangible—are deemed to be so problematic as to be presumptively fraudulent unless "cured." I will show that by enabling us to get beyond the masculine metaphor, the Hegelian theory of property offers a more satisfactory account of existing American property law and can serve as a paradigm for critiquing and revising existing law.

2—
Ostensible Ownership

a—
Introduction

The traditional doctrine of ostensible ownership holds that creditors assume that property "held" by another person actually belongs to that person. In other words, this doctrine posits that the archetypical form of ownership is immediate physical contact with, and custody of, a visible and tangible object. Like Waldron, proponents of this doctrine implicitly reduce property to the single masculine element of possession. I take this imagery to its logical extreme and call it "property as sensuous grasp." Property interests that cannot be so reduced—either because the interest is nonpossessory or because the object of the property interest is itself intangible—are considered "problems" that need to be explained. In other words, this doctrine holds that reasonable creditors presume that the person in physical custody of a tangible thing is ostensibly the owner free and clear of any competing claims. Consequently, in order to prevent actual or constructive fraud on creditors, all noncustodial property interests (such as hypothecations) should be "perfected."^[38] "Possession," in the sense of immediate physical custody or sensuous grasp

[38] The presumption of a right to possession from the fact of possession, moreover, largely underlies the doctrine of ostensible ownership, by which one is presumed to own the property he possesses. Numerous decisions and statutes, including the Statute of 13 Elizabeth, c. 5 (1571) and its modern progeny, the Uniform Fraudulent Conveyances Act, rest upon that doctrine and the further assumption that creditors rely upon the debtor's possession. The purchaser or creditor who allowed a false inference of ownership to arise by leaving property in the debtor's possession could expect no leniency in resulting litigation.

David Morris Phillips, Flawed Perfection: From Possession to Filing Under Article 9—Part I, 59 B.U.L. Rev. 1, 4 (1979).

by the secured party, is the preferred mode of perfection because it supposedly eliminates the ostensible-ownership problems with respect to the debtor's creditors.^[39] Hypothecations of most forms of personalty are governed by Article 9 of the Uniform Commercial Code (the "U.C.C."). Article 9's primary alternate mode of perfection by filing is permitted as a substitute—a form of fictive custody—in those situations where custody is impossible or impractical.^[40] This notion is unquestioningly adopted by a large percentage of the academy and the courts—a computer search will produce literally dozens of articles and cases which parrot it as dogma.

The high priests of ostensible ownership are Douglas Baird and Thomas Jackson.^[41] Starting with their 1981 article, Possession and Owner -

[39] The secured party could best rebut the inference of the debtor's unfettered ownership and assert her own right in the collateral by taking possession of it. The original purpose of recording statutes was "rebuttal of [the] fraud created by possession." Article 9, quite conservatively, tracks this historical emphasis on possession and ostensible ownership.

Id . (quoting John Hanna, The Extension of Public Recordation , 31 Colum. L. Rev. 617, 622 (1931) (alteration in original) (footnotes omitted).

The legal system's original method of providing this information was to give primacy to possession. At common law, a debtor's possession of personal property assured a prospective creditor that the debtor could give him an unencumbered interest in that property. Possession was indeed nine points in the law.

Douglas G. Baird & Thomas H. Jackson, Possession and Ownership: An Examination of the Scope of Article 9 , 35 Stan. L. Rev. 175, 180 (1983) [hereinafter Baird & Jackson, Possession and Ownership ].

[40] [The U.C.C. takes the approach] that [a] secured creditor need not take possession of the collateral, but if he does not, he must make a public filing in a designated place before he can shift the risk of competing claims to other property claimants.

Baird & Jackson, Possession and Ownership, supra note 39, at 183.

As David Morris Phillips so accurately argues in his critique of possession as a mode of perfection, despite the availability of filing as an alternate mode of perfection, and despite the fact that "business people have discounted the importance of possession, especially in its role as a perfecting mechanism" as indicated by the fact that "[f]iling, instead, dominates as the means of perfecting security interests," Article 9 still reflects the historical "preference accorded possessory security interests over filed security interests." Phillips, supra note 38, at 3. Indeed, the filing requirements have a "structural affinity to possession reflected in the tie between the location of filing and the place of possession." Id . Moreover, "possession by the debtor generally governs the time by which . . . the secured party must so file." Id . Phillips applauds amendments made to Article 9 since its original adoption which he believes have moved it further away from what I have called the physical metaphor, and argues that numerous considerations "should continue to contribute to the decline of possession's importance." Id .

[41] See generally Baird & Jackson, Possession and Ownership, supra note 39; Douglas Baird & Thomas Jackson, Security Interests in Personal Property (2d ed. 1987) [hereinafter Baird & Jackson, Security Interests]; Douglas Baird, Security Interests Reconsidered , 80 Va. L. Rev.2294 (1994). A quick LEXIS search of law reviews reveals literally dozens of articles and notes which uncritically accept the doctrine of ostensible ownership.

ship: An Examination of the Scope of Article 9 ,^[42] and continuing up through Baird's Security Interests Reconsidered ,^[43] they have taken the doctrine of "ostensible ownership" to its logical extreme and beyond.^[44] As described by Baird and Jackson:

Since Twyne's Case , . . . possession has been viewed as the best available source of information concerning "ownership" of most types of personal property. Separation of ownership and possession has been viewed as a source of mischief toward third parties, and for that reason as fraudulent.^[45]

They identify a negative pregnant in the traditional assertion that physical custody implies ownership. They infer from this that lack of physical custody implies no ownership. That is, the doctrine holds that the archetype of property is the sole element of possession reduced to the specific example of physical custody—an immediate, binary relation of subject to object. As this is the masculine strategy of denial, all attempts to complicate this simplistic account by revealing the mediated nature of noncustodial property interests must be repressed. This is why such interests are declared constructively fraudulent and voidable unless they can somehow be restated within the metaphoric imagery of the binary archetype.

Proponents try to justify this doctrine with a combination of ethical and economic grounds.^[46] Both these justifications are based on the unexamined and unverifiable empirical presumption that reasonable creditors assume (absent actual notice to the contrary) that all assets in a debtor's custody are unencumbered. This presumption is supposed to be bolstered by a historical analysis which purports to show that American

[42] Baird & Jackson, Possession and Ownership, supra note 39.

[43] Baird, supra note 41.

[44] Their casebook on secured transactions (which recapitulates arguments which they had separately or together introduced in earlier articles) is probably their most complete and sustained paean to ostensible-ownership theory. Baird & Jackson, Security Interests, supra note 41.

[45] Baird & Jackson, Possession and Ownership, supra note 39, at 180 (emphasis added).

[46] I explore these justifications at length in Jeanne L. Schroeder, Some Realism About Legal Surrealism , 37 Wm. & Mary L. Rev. 455 (1996) [hereinafter Schroeder, Legal Surrealism ]. In his critique of ostensible-ownership theory, Phillips sets forth its traditional ethical justification of preventing fraud. Phillips, supra note 38. That is, since, it is claimed, reasonable creditors assume that all assets in the custody of a debtor are unencumbered, any creditor who seeks to take a noncustodial property interest has an ethical duty to put other creditors on notice so that they are not defrauded. In their defense of ostensible-ownershiptheory, Baird and Jackson recognize the traditional ethical argument but seek to justify the rule in terms of efficiency. Baird & Jackson, Possession and Ownership, supra note 39. That is, it is supposedly cheaper for a noncustodial claimant to put all other creditors on notice of her property interest than it is for creditors generally to incur the costs of investigating title.

law has traditionally held that noncustodial property interests are presumptively voidable on the grounds of constructive fraud. Baird and Jackson do not merely argue that this historical account explains the existing positive law of perfection of security interests. Rather they believe that rationality itself insists upon the doctrine of ostensible ownership. It, therefore, should be unloosed from the confines of its traditional jurisdiction. Accordingly, not merely noncustodial security interests but all noncustodial property interests should be subjected to a perfection regime.^[47] That is, although they purport to justify ostensible-ownership doctrine in part by historical precedent, they conclude by arguing that we should adopt and expand the doctrine despite historical precedent to the contrary.

Opponents of ostensible-ownership theory have argued for years—persuasively in my opinion—that there is strong empirical evidence that, whether or not its basic underlying assumptions were ever justified, they are now obsolete.^[48] In our modern economy, property interests commonly, or even typically, are not accompanied by physical custody of tangible objects, and the persons in custody of the objects of property are commonly not the owners. An excellent example of this, which I shall discuss later in this section, is one of the most important categories of personal property in the modern economy—investment securities (i.e., stocks and bonds). The vast majority of publicly traded securities are no

[47] "That we tolerate the ostensible ownership problems created by these transactions is largely an accident of history." Id . at 177–78. To Baird and Jackson, the traditional protections of leases, bailments, and other interests are economically irrational aberrations to a general ostensible-ownership doctrine. Indeed, they repeatedly emphasize that if we are to take the "ostensible ownership problem seriously" we should impose filing or other notoriety requirements on other forms of noncustodial interests such as bailments.

[48] Many writers, including myself, question the empirical presuppositions underlying this argument. See Schroeder, Legal Surrealism, supra note 46. Probably the most trenchant critic is Charles Mooney. Similarly, Phillips states that

[c]riticism of the doctrine of ostensible ownership finds its strongest behavioral support in the actions of parties who extend secured or unsecured credit subsequent to the secured transaction. Even with respect to creditors, one can poke holes in this criticism but its case seems incontrovertible—business people look to written, not possessory evidence of ownership. And this view leads generally to recognizing filing, but not possession, as a means of notice.

Phillips, supra note 38, at 35.

longer evidenced by physical certificates held by the owners but are held indirectly through tiers of intermediaries in the form of electronic book-keeping entries. Consequently, the marketplace is fully aware that physical custody standing by itself has no evidentiary value.^[49] In other words, creditors do not have to undertake expensive investigation to learn that encumbrances exist. They can assume, based on empirical data concerning debtors on the whole, that they do.^[50]

[49] The high cost and relative ineffectiveness of possession as a means of allowing efficient use of the debtor's resources and providing certainty explain why filing dominates as the perfecting mechanism. The ineffectiveness of possession as a constructive notice is the foremost reason why the law should recognize and encourage possession's demise. These factors are related. Any attempt to make perfection through possession more effective in providing the secured party with certainty conflicts with the debtor's use of collateral. And efforts to make perfection through possession more effective in allowing collateral to be put to its most efficient use inevitably increase the risk that third parties might mistakenly rely upon the debtor's ostensible ownership and extend credit or purchase assets unaware of the secured party's interest.

Phillips, supra note 38, at 8.

[50] At least one critic also challenges Baird and Jackson's historic account. Charles Mooney argues that our legal and economic system has never had a general concern about the separation of ownership and possession per se. There has, however, been a concern for limiting opportunities for fraud. This fraud concern is separable from the ostensible-ownership concern that possession of personal property begets misleading appearances of ownership upon which creditors and purchasers may rely. Charles Mooney, Jr., The Mystery and Myth of "Ostensible Ownership" and Article 9 Filing: A Critique of Proposals to Extend Filing Requirements to Lease , 29 Ala. L. Rev. 683 (1988). According to Mooney, the landmark cases on which Baird and Jackson rely invalidated the property interests of certain parties because the facts in those situations seemed particularly amenable to being used fraudulently. Id . at 730.

I do not wish to restate Mooney's insightful analysis, but a brief discussion of one of the cases may give a flavor to the traditional case law. In Clow v. Woods, 5 Serg. & Rawle 275 (Pa. 1819), the debtor, Hancock, purported to hypothecate all of his property to two individuals, Woods and Sharp, the day before a court awarded a judgment against Hancock in favor of a certain Poe. Poe did not learn of this hypothecation until exactly a year later when he hired a sheriff to enforce his judgment against the recalcitrant Hancock. Woods and Sharp sued the sheriff for taking "their" property.

We do not know much about the parties, but the skimpy facts reported in the case are suspicious. The judgment of Poe against Hancock was for the accounting of a defunct partnership between the two men. Although the court described this as an "amicable suit," it is my experience that even friendly breakups of partnerships, like uncontested divorces, often result in bitterness. This is especially the case when there is a disagreement about the division of property. For example, in the last five years my former law firm merged with another firm, split, and then split again. Two of the splinters were incorporated into other larger firms and the third has since dissolved. Several other partners and associates left or were forced out during these troubled times. Since I had resigned and withdrawn my capital a few years before in order to teach, I was able to sit and watch with morbid fascination the pitiful and disgusting sight of former friends descending into mutual recriminations and, eventually, years of litigation. Woods and Sharp were not ordinary secured lenders of Hancock. Rather, they had signed instruments as accommodation parties for Hancock. The hypothecation was to secure Hancock's reimbursement obligation in the event the accommodation parties were ever called under their suretyship obligation. People do not act as sureties without a reason. Apparently Woods and Sharp were never called to pay under the instruments. At the time the sheriff tried to execute upon the property one year and one day after the hypothecation, the "collateral" was still being used by Hancock. Were Woods and Sharp close friends or intimate business associates of Hancock whom Hancock preferred over his former associate, Poe? Rather than being a legitimate transaction which can be characterized as an abstract constructive fraud against hypothesized future creditors, this case reeks of being an actual fraud—a sham transaction entered into for the sole purpose of defrauding Poe.

In this view, the traditional doctrine of ostensible ownership did not generally void property arrangements which separated ownership and possession as fraudulent. It merely established a rebuttable presumption of fraud—in the case of certain hypothecations and a few other forms of the noncustodial transfers. Mooney, supra at 729. Moreover, most instances of separation of ownership and possession have traditionally been found to be "unproblematic." Disputes among different claimants to various forms of property are usually resolved by application of a combination of "derivation" (i.e., first in time, first in right) and "negotiability" (i.e., bona fide purchaser) principles without reference to pejorative and conclusory allegations of implied fraud.

My main argument against Baird and Jackson's theory is not, however, based on empirical claims or historical interpretation.^[51] Rather, my complaint is that they attempt not only to analyze current law but also to make policy recommendations for future law on the basis of unprovable assertions of accidental and contingent empirical facts rather than a consideration of the logical functions of property.

b—
Custody as Evidence of Ownership

Baird and Jackson assert:

Possession of personal property is the best evidence of its ownership. The law of secured transactions has ordered itself around this principle for nearly four hundred years. . . . The drafters of the [Uniform Commercial] Code did not go far enough either in abolishing metaphysical and unobservable

[51] Although I believe that the underlying presumptions are highly unlikely to be true. As Phillips argues, Baird and Jackson must be wrong in asserting that physical custody is the best evidence of ownership. Custody can never convey unambiguous information as to ownership precisely because people do not take custody of goods solely or even primarily as a form of communication but for a wide variety of practical purposes. Perhaps the only instance of possession as a communicative act is the pledge. But even then, often the secured party takes custody of the collateral not merely to put the world on notice of its security interest but also as a way of policing the debtor. The significance of custody is, consequently, always ambiguous. "Only an abstract means of perfecting security interests avoids both the uncertainty as well as other inefficiency costs associated with perfection through possession." Phillips, supra note 38, at 34. That is, if avoiding ambiguity is the goal, one should require a formal act which no one would take for any reason other than for the purpose of conveying information. Consequently, even though, historically, filing was developed as a "form of constructive possession," id ., in fact, it better serves the functions of perfection and shouldsupplant custody as the preferred norm. "[F]iling, with its attendant specifics of what, where and how, generally avoids the recurrent pitfalls that characterize perfection through possession and produce uncertainty." Id .

distinctions based on concepts such as "title" or in adopting the more concrete concept of possession as their benchmark.^[52]

This is one of the clearest statements of property as sensuous grasping of physical things in contemporary legal scholarship. Those legal relationships which are not physically observable are slandered as mere "metaphysics." Their phrase echoes Karl Llewellyn's embrace of the physical metaphor in the Official Comment to U.C.C. § 2-101, which states that under the law of sales

[t]he legal consequences are stated as following directly from the contract and action taken under it without resorting to the idea of when property or title passed or was to pass as being the determining factor. The purpose is to avoid making practical issues between practical men turn upon the location of an intangible something the passing of which no man can prove by evidence and to substitute for such abstractions proof of words and actions of a tangible character.

As Llewellyn insisted, practical men need tangible things. Baird and Jackson seem never to use the word "title" without their intended pejorative, "metaphysical." Presumably, by "metaphysical" they intend connotations such as unreal, fictional, imperceptible, invisible, intangible, inaudible, too abstract, excessively subtle, "airy-fairy," supernatural, ambiguous, uncertain, and so on. Certainly it is not serious enough (or, dare I say, too feminine?) for real men who are only happy when grasping their tangible things. But, in context, Baird and Jackson use the term to mean the legal (symbolic) as opposed to that which physically exists (which we locate in the real).^[53] In other words, they have inadvertently limited the word "metaphysical" to a simpleminded, folk-etymological meaning—that which is other than the physical—and imply that only the physical is actual. This precisely reflects our psychoanalytic urge to achieve the impossible goal of unmediated relationships through the imaginary collapse of the symbolic into the real, as though property could be reduced to our animalistic, natural, physical relations with the material world.

Note, however, that Llewellyn's concern expressed in the Official

[52] Baird & Jackson, Possession and Ownership, supra note 39, at 212 (emphasis added).

[53] Other "metaphysical notions" they identify include "'leases,' 'bailments,' and 'security interest.'" Id . at 190.

Comment is not the misleading nature of noncustodial interests but of nonobjective ones—that is, property interests which "no man can prove by evidence." Unfortunately, as I shall discuss in greater detail in section III.B of this chapter, his physicalist imagery already presupposes that "objective" means "physical" and that "intangible" means "subjective." This is exactly Baird and Jackson's error.

Like all proponents of the physical metaphor for property, Baird and Jackson do at some level recognize its impracticability, if not impossibility. And they offer one of the usual "solutions": denial through the adoption of the physical metaphor and attribution of the pejorative "metaphysical" to alternates. That is, certain forms of nonphysical possession are implicitly analogized as being equivalent to physical custody.

For example, they do not defend the filing regime on its own intrinsic utility. Rather, its utility is defended by metaphor—filing is just like sensuous contact:

Both public recording files and possession share one central feature: Information about competing property interests is concrete and trustworthy. It is trustworthy because the information is conveyed by events—making a filing or taking possession—that themselves determine legal systems.^[54]

This is despite the fact that Baird and Jackson also recognize that filing has distinct advantages over custody in that it allows the debtor to continue to use the collateral, thereby making it more likely that the secured party will eventually be paid.

A secured creditor need not take possession of the collateral, but if he does not, he must make a public filing in a designated place. . . . [A] filing system places fewer restrictions on the use of collateral yet it still provides information that allows a creditor to avoid the uncertainty caused by the possibility of debtor misbehavior.^[55]

At one moment Baird and Jackson do recognize that the requirement of perfection must relate to some requirement that property interests be objectively manifest as a condition of general enforceability, but do not understand its full implications:^[56]

[54] Baird & Jackson, Possession and Ownership, supra note 39, at 184.

[55] Id . at 183.

[56] Of course, they try to justify this on efficiency grounds based on unverifiable empirical presumptions as to creditor behavior and the relative costs of alternate legal regimes. In contradistinction, I wish to avoid relying on that which we cannot prove. Therefore, I try to derive this requirement from jurisprudential theory of the ethical function of property.

The doctrine of ostensible ownership assumes that such contractual divisions [i.e., of property rights] are irrelevant insofar as third party rights are concerned. What matters is that third parties be able to observe the division easily and accurately.^[57]

Unfortunately, after this correct starting place, their argument gets lost. Based on historical, but unverified, empirical assumptions, they first assume that physical custody is clear and informative and can serve as an effective way of objectively evidencing a property interest. From this they draw the non sequitur that noncustodial property interests are so problematic that they must be voided unless they can be cured by analogy to custodial interests. This means that Baird and Jackson do not fully recognize that the question of objectification arises in all property claims. Because they conflate objectivity with physicality, they believe that the need for objectification (what they call the ostensible-ownership problem) is created not by the claim to property but by the separation of such claims and physicality. Consequently, the test of an enforceable property interest depends not on whether it is sufficiently objectified but on whether it is sufficiently physicalized:

A party who wishes to acquire or retain a nonpossessory interest in property that is effective against others must, as a general matter, make it possible for others to discover that interest.^[58]

Therefore, filing is judged by whether or not it can serve as a substitute for physical custody and thus become a form of fictive possession.^[59]

A similar conflation of objectification with physicality can be seen in Stephen Munzer's otherwise insightful property analysis. Munzer makes the quite remarkable statement that the only way that "embodied entities such as human persons can have property in nonmaterial things . . .

[57] Baird & Jackson, Possession and Ownership, supra note 39, at 190.

[58] Id . at 179.

[59] Id . Elsewhere, they note in passing that possession may not be so unambiguous or even possible, but they minimize this by assertorially denying the materiality of this problem:

Cases might also arise in which there is ambiguity about which of two parties is in possession of property. . . . First, although the question of whether a party is in possession of property might be difficult in some cases, at least when goods are involved the inquiry will be quite straightforward. . . . Second, many problem cases do not have to be resolved on a case by case basis. . . . As we have seen, the doctrine of ostensible ownership provides potential claimants with a method for obtaining this knowledge. If a debtor is in possession of property, and there is no filing, potential claimants can be confident they will prevail over earlier claimants.

Id . at 193–94.

[is] through some physical manifestation."^[60] "It is, therefore, essential to property as it can exist for human beings that it involve, at some point, material objects. Without a physical manifestation people cannot have rights in nonmaterial things."^[61] He thinks that this is demonstrated by the fact that copyright and patent applications require a writing, drawing, or model.^[62] But in context, it becomes clear that his real concern is intersubjective communication. He refers to recent legislation as instituting "legal conventions that allow for more transitory physical manifestations."^[63] He gives as an example a California statute that recognizes property rights in "any original work of authorship that is not fixed in any tangible medium of expression."^[64] Music performed but not transcribed, or a mime performance seen but not filmed, is, to Munzer, a "fleeting" physical manifestation of property.^[65] Presumably, on this analysis, electronic records of property interests (such as uncertificated securities) and conveyances (such as wire transfers) are also "physical" manifestations.

Even if one buys (which I do not) their assertion that physical custody of goods is unproblematical in most cases, Baird and Jackson are presupposing an economy in which most (or at least the archetypical forms of) property interests involve tangibles. This means that the law of perfection of security interests in intangibles is developed by analogy to the presumed "norm" of tangibles. If the law of tangibles is based on the presence or absence of physical custody, the law of intangibles is developed by reference to the presence or absence of something that, by definition, cannot exist.^[66] This requires the development of ever more elaborate fictions and metaphors. This is precisely the same inverted logic which Waldron used to support the positive masculine phallic metaphor in property jurisprudence.

[60] Stephen R. Munzer, A Theory of Property 72 (1990).

[61] Id . at 73.

[62] Id .

[63] Id . at 78.

[64] Cal. Civ. Code §980(a)(1) (Deering Supp. 1989) (amended 1982), cited in Munzer, supra note 60, at 78.

[65] Munzer, supra note 60, at 78.

[66] The common law, of course, dealt with this in two ways. First, it generally made it difficult to convey property interests in intangibles. The assignment of choses in action was prohibited (although the numerous exceptions which grew up around this general proposition perhaps made it a rule more honored in the breach). 1 Grant Gilmore, Security Interests in Personal Property 196–249 (1965). Second, it "reified" certain intangible and noncustodial interests into pieces of paper called negotiable instruments, negotiable documents, and securities certificates so that we could fictively convey possession of the underlying property by handing over physical possession of the paper.

c—
Benedict v. Ratner

It is significant that Baird and Jackson include the infamous case of Benedict v. Ratner^[67] in the chapter of their casebook which covers the history of the ostensible-ownership principle.^[68] In this pre-U.C.C. case, the United States Supreme Court invalidated an assignment of accounts receivable—what we would today call a non-notification security interest in accounts.^[69] Specifically, the court voided a purported assignment by a corporation of all of its existing and future accounts receivable when the assignee not only lacked the right to collect the accounts but the assignor had no obligation to account to the assignee for the collected accounts. The assignee did not notify the account debtors that he was now the owner of the accounts, collect, ask for an accounting, or attempt to assert any rights whatsoever with respect to the accounts until after the corporate-assignor's bankruptcy. That is, the assignor retained the right to collect, settle, or otherwise deal in the accounts without either paying the proceeds over to the assignee or substituting new accounts. The Supreme Court found that this transaction was a fraud on the corporate-assignor's debtor as a matter of law (i.e., it is objectively fraudulent even if the corporate-assignor acted with subjective good faith as a matter of fact)^[70] because the assignor retained, and the assignee did not obtain, "dominion" over the accounts.

Baird and Jackson's inclusion of this case as an example (or, at least, a close relative) of ostensible-ownership theory follows from their custodial/

[67] 268 U.S. 353 (1925).

[68] Baird & Jackson, Security Interests, supra note 41, at 51–58. Baird and Jackson do not state expressly that ostensible-ownership principles literally apply to security interests in accounts. Their placement of the discussion, however, suggests that they see a strong family resemblance.

Other authors have more expressly linked the rule of Benedict v. Ratner with ostensible-ownership principles. For example, "The Twyne rule (and perhaps the Benedict rule) also may reflect the early common-law dissatisfaction with the notion that possession and ownership can be separated." John Dolan, The U.C.C.'s Consignment Rule Needs an Exception for Consumers , 44 Ohio St. L.J. 21, 34 n.84 (1993). Dunham similarly sees a close relation between the rule of Benedict and ostensible-ownership doctrine:

Perhaps the United States' most noteworthy extension of Twyne's case was articulated by the Supreme Court in Benedict v. Ratner . . . . Reservation and dominion over the accounts by the debtor was inconsistent with the assertion that title had been given to [the assignee]. The debtor's grant of unrestricted domain over the goods which rendered ownership more than ostensible troubled the court.

Darrell W. Dunham, Postpetition Transfers in Bankruptcy , 39 U. Miami L. Rev. 1, 41–42 (1984).

[69] U.C.C. §§ 1-201(37) and 9-104. The term "security interest" includes virtually all assignments of accounts, including outright sales, in addition to assignments for security.

[70] Although the court did not find that there was evidence of an actual intent to defraud the assignor's creditors in this case, the facts are, obviously, suspicious. Not only wasthe assignee the father of the assignor's president, the assignment was made four months and three days prior to the assignor's bankruptcy at a time when the voidable preference period was four months.

noncustodial distinction: if noncustodial interests are defined as problematical, then property interests in accounts which are, by definition, intangible must always raise the concerns which underlie ostensible-ownership theory.^[71]

Baird and Jackson take the position that, when one is analyzing the validity of the secured party's property interest, then the logic of ostensible-ownership doctrine demands that we ask not only whether the debtor retains physical custody but also whether the secured party ever obtained physical custody. That is, under the classic version of the ostensible-ownership theory, the debtor's creditors supposedly would be fooled into thinking that the debtor owned his property free and clear of liens if they looked at the debtor and saw the debtor in possession of the collateral. In the rewritten theory, creditors would also be fooled into thinking that a rival creditor did not have a lien on the debtor's property if they looked at the creditor and did not see it in possession. This seems to follow directly from the underlying presumption that property is possession and possession is physical custody.

This, of course, is the logical extension of the phallic metaphor. If a secured party is claiming a property interest, it is not enough to show that the debtor has been castrated from her phallic property. Rather, the secured party must show that he now wields the Phallus . For this analysis, it is irrelevant whether the reason why the secured party lacks physical custody is that the debtor retains physical custody (as in classic ostensible-ownership analysis) or that the nature of the collateral makes physical custody an impossibility (as in the case of assignments of accounts and other intangibles). This approach may be implicit in the rule announced in Benedict v. Ratner . Justice Brandeis might be read as analo-

[71] Mooney criticizes this approach because the Supreme Court expressly denied that it was applying ostensible-ownership law precisely on the grounds that it is impossible to take physical custody of an intangible. Mooney, supra note 50, at 733–34. "But it is not true that the rule stated above and invoked by the receiver is either based upon or delimited by the doctrine of ostensible ownership." 268 U.S. at 362–63.

Here I will defend Baird and Jackson as accurately reflecting the logic of the case. Mooney does not recognize that Baird and Jackson's (and, implicitly, the Supreme Court's) analysis extends the reasoning underlying ostensible-ownership doctrine beyond its common-law boundaries to its logical extreme. The common law of ostensible ownership concentrated on the fact that the debtor retained physical custody of the collateral. But Baird and Jackson are correct in realizing that this was a red herring.

gizing ownership of accounts to the sensuous grasp of goods and fixating on the lack of physical custody, or its analogue, in the secured party. In this reading the term "dominion" stands in for physical custody of intangibles.

Perhaps tellingly, the assignee in this case was the father of the assignor's president. Does his paternal status of the assignee explain, in part, why the Supreme Court was so concerned with the assignee's lack of dominion? For the father to function as a father he needs to appear to be holding the Phallus . But in Benedict v. Ratner , the father is castrated and it is the son who wields phallic property.

Modern lawyers love to sneer at this case as a relic of a financially unsophisticated era. The drafters of the U.C.C. claimed that they rejected the rule of Benedict v. Ratner with respect to accounts.^[72] By this they meant that they did not adopt the Supreme Court's specific solution to the secured party's lack. That is, they did not insist that the secured party take dominion and control over an assigned account. Instead, as I shall discuss below, Article 9 permits secured parties to perfect their interest through filing. Consequently, Article 9 makes it much easier for lenders to offer what is known as "nonnotification" accounts receivable financing.^[73]

In contradistinction, I agree with Baird and Jackson's intuition that Benedict v. Ratner remains relevant because it identifies a recurring problem of commercial law, albeit in a partial and imperfect manner. Although the drafters sought to assure a different outcome from that of Benedict v. Ratner , they implicitly embraced both its obvious general conceptual errors as well as its hidden insight. This can be seen in Article 9's rules for the perfection of security interests.

[72] Official Comment 1 to U.C.C. § 9-205 states that this section "repeals the rule of Benedict v. Ratner ." It continues:

The principal effect of the Benedict rule has been, not to discourage or eliminate security transactions in inventory and accounts receivable—on the contrary such transactions have vastly increased in volume—but rather to force financing arrangements in this field toward a self-liquidating basis. Furthermore, several lower court cases drew implications from Justice Brandeis' opinion in Benedict v. Ratner which required lenders operating in this field to observe a number of needless and costly formalities: for example it was thought necessary for the debtor to make daily remittances to the lender of all collections received, even though the amount remitted is immediately returned to the debtor in order to keep the loan at an agreed level.

[73] U.C.C. § 9-205 provides that

[a] security interest is not invalid or fraudulent against creditors by reason of liberty in the debtor . . . to collect or compromise accounts . . . or to use, commingle or dispose of proceeds or by reason of the failure of the secured party to require the debtor to account for proceeds or replace collateral.

3—
Objectification:
Hegelian Possession as an Alternative to the Paradigm of the Phallic Metaphor

The ostensible-ownership doctrine is supposed to explain the historical development of the positive law of security interests. Extremists, such as Baird and Jackson, argue that if one accepts the doctrine, then consistency and utilitarian considerations demand that we extend the concept of "perfection" beyond security interests to all noncustodial property interests. They cannot explain, however, why our supposedly efficient capitalist system has not yet done so. One is not required to "perfect" one's nonpossessory property interest in goods leased, coats left at the hatcheck in restaurants, clothes left with the dry cleaner, and so on. In the theory of Baird and Jackson, this remains an unexplained aberration. In this section, I suggest that a Hegelian analysis offers a much more convincing account of current law which avoids such embarrassments. To that end, it is helpful to review briefly the structure of Article 9 before moving on to my analysis.

a—
Attachment and Perfection

Article 9 security interests can only be created by contract.^[74] They are not merely contract interests, however, but property interests in specific identifiable collateral. This means, among other things, in the event of the debtor's bankruptcy, a secured party does not share in the estate pro rata with general creditors but is entitled to distribution out of earmarked assets. Consequently, Article 9 makes a distinction between what it calls "attachment" and "perfection" of security interests which reflects their contractual and property aspects, respectively.

Roughly speaking, when we say a security interest has attached, we mean that it has become enforceable against the debtor who created the security interest as well as against a discrete class of third parties: donees and knowledgeable buyers out of the ordinary course of business.^[75] Perfection means that the attached security interest is also enforceable against a much larger class of third parties, most significantly, subsequent lien cred-

[74] Article 9 "applies to security interests created by contract." U.C.C. § 9-102(2). One of the elements of attachment (i.e., creation) of a security interest is that there is an agreement. U.C.C. § 9-203(1)(a).

[75] The four elements of attachment are located in U.C.C. § 9-203: (i) The security interest must be established by agreement between the debtor and the secured party, U.C.C. § 9-203(1)(a) (i.e., because security interests, unlike judgment liens, are voluntary conveyances, they fall within the defined term "purchase"); (ii) the security agreement must be evidenced by one of three formalities in the nature of a statute of frauds (Official Comments 3 and 5); (iii) the debtor must have rights in the collateral, U.C.C. § 9-203(1)(b) (i.e., there must be some object in which the debtor can assert a property interest, a special case of thederivation rule); and (iv) the secured party must have given value, U.C.C. § 9-203(1)(b) (i.e., in order to form the contract, consideration must be given by the secured party).

My categorical statements are roughly true. Unperfected security interests are enforceable (i.e., have priority) against a few third parties such as donees and buyers of goods out of the ordinary course of business.

itors, the debtor's bankruptcy trustee, most subsequent secured parties, and certain others.^[76] Consequently, one can have unperfected but attached security interests in many categories of collateral,^[77] but there is no such thing as a perfected but unattached security interest.

Why is this so? One answer is suggested by the Hegelian theory of the function of property.

b—
The Logic of Property

(1)—
Classical Liberalism and Autonomy

Elsewhere I have shown that the existing positive law of property under the U.C.C. can be explained in terms of the classical liberal policy of furthering autonomy.^[78] This analysis is powerful and appealing in that it probably reflects the underlying liberal jurisprudential theories actually (implicitly or explicitly) held by the drafters. It is limited, however, in that it depends on a liberal presupposition of human nature as atomistic individuality with a natural right of negative liberty as personal autonomy (and, to a lesser extent, a natural right to property). These presuppositions are, perhaps, not so universally shared in our society as they once were. As a sublation of liberalism, Hegelian property theory can preserve

[76] As usual, the U.C.C. never states this general principle in so many words. Rather it adopts the transactional approach and describes (Article 9, Part 3) the priority of unperfected security interests vis-à-vis other parties (U.C.C. § 9-301), the priority of conflicting security interests (U.C.C. § 9-312), and priorities against other parties (U.C.C. §§ 9-306 and 9-310).

[77] It is often thought that it is impossible to have an attached but unperfected security interest in investment securities in those states which still have the pre-1994 version of Article 8. This is an overstatement. Pre-1994 U.C.C. § 8-321(2) does provide that attached Article 8 security interests are always initially automatically perfected. This only means that it is impossible to create an attached yet unperfected security interest ab initio . Under pre-1994 Article 8, perfection can lapse, resulting in an unperfected yet attached security interest. See Jeanne L. Schroeder & David Grey Carlson, Security Interests in Investment Securities , 12 Cardozo L. Rev. 557 (1990) [hereinafter Schroeder & Carlson, Security Interests in Investment Securities ].

The 1994 Revisions to Articles 8 and 9 remove this anomaly.

[78] I do this in Jeanne L. Schroeder, Death and Transfiguration: The Myth That the U.C.C. "Killed" Property , 69 Temple L. Rev. 1281 (1997).

the liberal values of individuality, autonomy, and negative liberty as one true moment in the actualization of freedom while negating and superseding its false claims to universality.

As I discussed in chapter 1, Hegelian possession is the identification of a specific object as being "owned" by a specific legal subject with the right and power to exclude others from the object. Because the logic of property is to make the owner recognizable by others, the claim to ownership which is possession cannot be totally "subjective" in the sense of private to the so-called owner. It must be somehow public and "objective" in the sense that it is intersubjectively recognizable by the relevant legal community.

Unfortunately, the U.C.C., and much contemporary legal scholarship, conflates the English term "possession" with its more narrow meaning of physical custody, preferably in the form of sensuous grasp. Consequently, the Supreme Court's terminology in Benedict v. Ratner —dominion (from dominus , lord)^[79] —may in fact be more appropriate since it does not carry the unfortunate modern physicalist connotation of "possession."

In our legal system, both the debtor and the secured party to a security interest are deemed to have property rights in the collateral, although neither has the most full and adequate manifestation of property known as unfettered ownership. In a hypothecation, the debtor has possession in the sense of the right to have physical custody of a tangible object, or is otherwise recognized as the owner of an intangible object. She has the right to enjoy the object in the sense of using it or collecting it. Article 9 gives her the power to alienate her equity interest and sometimes the secured party's interest in the collateral (despite contractual restrictions to the contrary).^[80] These rights are all immediate, but they are also contingent in that their continued existence is subject to the condition that she satisfy the secured obligation. The secured party's rights of possession (through "repossession"),^[81] enjoyment (through collection or strict foreclosure),^[82] and alienation (through foreclosure sale)^[83] are inchoate because they are all contingent upon a future default by the debtor which may never occur. Consequently, the secured party's rights remain contractual in nature unless they are somehow immediately objectified. An unperfected security interest is objective only to a very small class of people: the

[79] 4 The Oxford English Dictionary 949 (1989).

[80] U.C.C. § 9-311.

[81] U.C.C. § 9-503.

[82] U.C.C. §§ 9-502, 505(2).

[83] U.C.C. §§ 9-504, 505.

debtor and parties with actual notice. Consequently, attached but unperfected security interests are enforceable against certain knowledgeable buyers^[84] and against the debtors' donees, who do not act as independent legal subjects but inherit the status of their donor.^[85] The logic of property is recognition by others. In order to be a property right enforceable against a third party, it is necessary that it become objective in the sense of recognizable by that third party. It is the necessity for objectification which explains the requirement known as perfection. This is another way of saying that possession is the most primitive element of property, required for the other two.

(2)—
Hegelianism and Pragmatism.

While the Hegelian dialectic is a powerful tool for analyzing the structures of society, it cannot answer specific questions of legal policy or daily life.^[86] This is why pragmatism is a necessary correlate of Hegelian idealism. The actual form of possession for any given property claim in any given society falls outside logic and within the province of positive law. In this interpretation, perfection of a security interest through filing of a financing statement would be a form of Hegelian possession through marking recognized by the positive law of the U.C.C. That is, filing is not a second-best substitution for possession as exemplified in the norm of sensuous grasping; through positive law, filing itself becomes a form of possession.

The Hegelian concept of possession can be used both to explain and to

[84] U.C.C. § 9-301(1) provides that unperfected security interests are subordinate to, among others, buyers of farm products, buyers out of the ordinary course of business of other goods, and certain assignees of accounts and assignments to the extent they give value and do not have knowledge of the security interest. By negative pregnant, such purchasers with knowledge take subject to the security interest under the general derivation principle of U.C.C. § 9-201.

[85] Donees take subject to an unperfected security interest granted by their donor-debtor under the general derivation principle of U.C.C. § 9-201. As discussed in chapter 1, in Hegelian theory, a donee is not asserting her subjectivity (i.e., acting as an end to her own means). Rather, she passively serves as the means to the ends of the donor. Hegel, The Philosophy of Right, supra note 23, at 102, 106–07, 111. See also Alan Brudner, The Unity of Property Law , 4 Canadian J.L & Jurisprudence 3, 34 (1991).

[86] As Richard Hyland has written in the context of discussing The Philosophy of Right:

Hegel described what he believed to be the ever-recurring forms of self-reflection, at an individual and societal level. He did not dream of dictating to us either their substantive content or the resolution of conflicts between the individual and society. Hegel's theory leaves us free to resolve these issues for ourselves.

Richard Hyland, Hegel: A User's Manual , 10 Cardozo L. Rev. 1735, 1741 (1989).

critique some areas of property law which seem anomalous when considered within ostensible-ownership doctrine. Probably the most obvious of such apparent anomalies, as raised by Baird and Jackson, is the lack of any perfection requirement for leases and certain other arrangements where a noncustodial party has enforceable property rights. From a Hegelian viewpoint, the continued existence of this apparent anomaly can be explained if the lessor's noncustodial interest is otherwise objectively manifest in the sense of being observable, or at least discoverable, by a third-party creditor of the custodial lessee from evidence other than the self-serving subjective statements of the custodial party.^[87] This turns out to be the case.

If a creditor wishes to take a security interest on equipment or other goods in the custody of a debtor, it can investigate the equipment's provenance or chain of title.^[88] That is, it can demand from the debtor some evidence of the origin of the equipment—such as a bill of sale or other receipt. The creditor can then question the source of the equipment about the nature of the transaction by which the debtor obtained custody. In this way, the creditor has some ability to ascertain the existence of an adverse interest that is not totally dependent on the subjective statements of the debtor.^[89] The same reasoning could in part explain the traditional solicitude for purchase money financers—at least when the financer is also

[87] Baird and Jackson assert that there is no objective way for a creditor to learn of a leasehold or other bailment. In the case of leases, "third parties have no easy way of discovering these divisions." Baird & Jackson, Possession and Ownership, supra note 39, at 178. In the case of purchase money security interests, "the financer of the inventory had no independent means of learning about the contractual arrangements between [the bailor and the bailee/debtor]." Id . at 200.

[88] Mooney, supra note 50, at 748–51.

[89] In the teacher's manual to their casebook (which I assume, from its style, consists mainly of their lecture notes), Baird and Jackson flippantly dismiss this approach:

But what if you want to buy a personal computer sitting in my office. How do you know it's mine—that is, how do you know if you pay for it, some company won't swoop down later and take it away, saying the computer belonged to it, and that I had no right to sell it? You might ask for the bill of sale. But I'm a careless guy, and I might not have it any more. What else? You look to see that I have it in my office. Anything else? No.

Douglas G. Baird & Thomas H. Jackson, Teacher's Manual, Security Interests in Personal Property 9 (2d ed. 1987).

They do not consider, as Mooney implicitly does, that even in the absence of a bill of sale, the potential buyer could ask the computer holder for the name of his seller and then ask the seller about the nature of the transaction. Of course, if the computer holder cannot produce this evidence, the potential buyer can still protect itself by lowering the price it will offer, or put a portion of the purchase price in escrow for whatever time the buyer deems sufficient to smoke out any competing claimant.

In other words, Baird and Jackson's comment does not go to the validity of Mooney's point that provenance can be and often is investigated. Indeed, I practiced as a corporate lawyer for many years before teaching, and such investigation was a standard part of the "due diligence" undertaken in large corporate mergers and acquisitions, and various forms of "holdbacks" and escrows are customarily used to protect buyers against undiscovered potential risks such as rival claimants. Fine arts is another industry in which elaborate systems for investigating and evidencing provenance have developed.

The valid issue they do implicitly raise, however, is the pragmatic one of whether this is the better way of protecting the competing interests of buyers, sellers, and third-party claimants. Lower prices and escrows will only be imposed by the buyer if the seller is "a careless guy" who does not keep his bills of sale. But economic theory would indicate that if "careless" sellers will receive a lower purchase price (or have part of the purchase price escrowed), there will be a strong incentive to be "careful" and keep records of provenance. Nevertheless, there might be cheaper and/or less burdensome ways of achieving this purpose.

the seller of the collateral.^[90] It cannot, however, justify the nonperfection of other forms of noncustodial security interests. That is, an investigation of the past chain of title of an object will not reveal the existence of a non–purchase money hypothecation.

I am not arguing that Hegelian property analysis shows that perfection of leases by filing is neither necessary nor a good idea. It merely argues that any given society may decide that different forms of objectification might be appropriate for different property interests for historic or pragmatic reasons. In my example, one might decide on abstract logical grounds that the unperfected interests of lessors are theoretically objective (i.e., possessory) and, therefore, property. Nevertheless, society could also pragmatically decide that investigation of provenance is too difficult, too time-consuming, and too subject to fraud by dishonest debtors who can forge fake receipts or collude with dishonest suppliers, to be considered sufficiently objective to justify enforcement of all leases against all competing interests. In other words, leases which can be discovered through investigation of provenance might be minimally objective and "possessory" in a Hegelian sense, but they are not necessarily the most adequate or full form of possessory interests.

Moreover, if lease financing is a significant rival for secured financing

[90] Because the adequacy of a form of objectification is a pragmatic rather than a logical one, it should not be surprising that one will occasionally find certain "logical" inconsistencies in application. For example, the reason given for not requiring filing in the case of leases (the possibility of investigating provenance) would seem to apply equally to justify not requiring filing for purchase money security interests ("pmsi's") retained by sellers. In fact, although we relax the filing requirements in the case of such pmsi's (e.g., U.C.C. § 9-301(2) provides that a pmsi will prevail over a judgment lien if perfected by filing within ten days of the debtor's obtaining possession of the collateral), in most cases we do require such filing.

in some industries, it might also make pragmatic sense to require the same form of objectification for all property interests. We might, therefore, pragmatically decide that with respect to some industries, or some types of collateral, creditors should have to engage in only one form of search to discover all potentially rival interests. Why make creditors search both the secured financing records and investigate provenance if it would not impose significant hardships on lessors to record their interests on a certificate of title?

For example, we have decided to require perfection formalities for all property interests—ownership, leasehold, and security interests, custodial as well as noncustodial—in aircraft and airplane engines and equipment which are frequently financed by sale-leasebacks and secured credit.^[91] Similarly, although the U.C.C. does not require that leases in automobiles be perfected as a condition of enforceability against creditors, both the interests in lessors (as owners) and secured parties (as lienholders) must be noted on the certificate of title on automobiles under state certificate-of-title statutes.^[92] Contrarily, in other industries we may decide that the expense imposed on the noncustodial party would not justify the investigative cost savings to third parties.

Of course, these pragmatic decisions depend on precisely the type of difficult-to-verify empirical questions which I have been seeking to avoid. But this is an inevitable characteristic of all pragmatic decisions. All we can do is develop a logical structure to help frame the type of pragmatic questions we need to ask, and develop a theory of political legitimacy for the process by which the pragmatic decision will be reached. Traditionally, in our political system, such decisions are considered to be within the competency of the legislature. My criticism of Baird and Jackson, then, is not so much that they raise a hypothesis which requires empirical investigation but that they assume the very empirical data on which a demonstration of their hypothesis depends.

[91] In the case of aircraft and equipment, Congress has, by making recordation the exclusive mode of possession, implicitly determined that the mere fact of custody is too ambiguous to serve as objectification. Federal law makes recordation a condition of enforceability of all property interests in aircraft and equipment, including ownership and leaseholds, in addition to security interests. 49 U.S.C. § 44107 (1997 Supp.). See Jeanne L. Schroeder & David Gray Carlson, Airplanes in Bankruptcy , 3 J. Bankr. L. & Prac. 203, 217, 254–59 (1994) (discussing the predecessor statute) [hereinafter Schroeder & Carlson, Airplanes in Bankruptcy ]. The Supreme Court has interpreted these provisions as meaning that physical custody cannot serve as a perfecting formality for aircraft. Philco Aviation, Inc. v. Shacket, 462 U.S. 406 (1982).

[92] See, e.g., Uniform Certificate of Title and Anti-Theft Act.

(3)—
Perfection, Filing, and Control.

An example of a pragmatic recognition that different forms of objectification may be more or less adequate is the priority regime for security interests in investment securities contained in the 1994 revisions to Articles 8 and 9 of the U.C.C. As revised, Articles 8 and 9 permit a variety of liberalized perfection alternatives for security interests in investment securities. In perhaps the most radical change from traditional law, the revisions provide for automatic perfection of security interests granted by broker-dealers and other securities intermediaries. Filing will be permitted in the case of other types of debtors. Both of these are examples of a minimum form of Hegelian possession through positive law—intersubjectively recognizable identification of object to subject.

In the case of automatic perfection, objectification consists of the general knowledge of the lending industry that securities held by broker-dealers are customarily subject to multiple competing noncustodial property claims. Based on their investigation of the actual practices of lenders in the securities industry, the drafters of the 1994 revisions to Articles 8 and 9 rejected the assumptions of the ostensible-ownership theory in light of a new ostensible-nonownership analysis: in the absence of actual notice to the contrary, reasonable creditors assume that all investment property held by securities professionals is encumbered. But note, the intersubjective knowledge which is "objectively" known by the lenders goes only to the existence of competing interests, generally, rather than of any specific property interests of any identified party. Consequently, revised Articles 8 and 9 only make these interests generally, but not specifically, enforceable. By this I mean all secured parties who rely only on automatic perfection and do not take one of the other objectifying acts permitted by the statute have priority over general creditors but share pro rata among themselves.^[93]

Perhaps more interestingly, the revisions further provide that secured parties who take "control" of investment securities have priority over security interests perfected by alternate means (such as automatic perfection).^[94] "Control" is a newly coined term of art defined as a variety of devices which give the secured party power to dispose of the property

[93] U.C.C. § 9-115(5)(e).

[94] U.C.C. § 9-115(5)(a). A "controlling" secured party who is not the debtor's securities intermediary will, however, be subordinate to the securities intermediary, who is always deemed to have "control."

without the further cooperation of the debtor. As we have seen, although physical custody can be a form of Hegelian possession, it is not the archetype of possession. Similarly, although actual physical custody of a securities certificate can be an element of control, it is not the archetypical form of control. Indeed, when a certificate is registered in the name of a specific person, mere physical custody does not even constitute control unless it is accompanied by all appropriate indorsements.

It is also significant that the forms of "control" defined by the revisions are all intersubjectively recognizable. For example, one form of investment property governed by the revisions is a new property interest known as a security entitlement.^[95] For my limited purposes it suffices to say that this is what an investor has when she owns her securities indirectly through her broker or other securities intermediary. This is now the most common form of securities holding in this country. If "control" by a secured party is thought of only as the power to dispose of the collateral without the further act of the debtor,^[96] then, theoretically, a debtor could give a secured party control by signing an irrevocable power of attorney to give instructions to the broker or other securities intermediary.^[97] But such an arrangement could be kept entirely private between the debtor and the secured party until such time as the secured party chose to exercise its power. Consequently, such private arrangements do not fall within the defined term "control" for the purposes of the revisions. In order for a secured party to obtain "control" over a security entitlement, the securities intermediary with whom the security entitlement is maintained must agree to obey such instructions.^[98] That is, there must be at least one third party who knows of the arrangement and can answer questions from other third parties.^[99]

The drafters, in effect, made a pragmatic judgment that security in-

[95] Security Entitlement means the rights and property interest of an entitlement holder with respect to a financial asset specified in Part 5 [of Article 9].

U.C.C. § 8-102(17). Put simply, in in the vast majority of cases, when a customer holds her investment assets in an account at a securities intermediary, she will be deemed not to be the direct holder of such assets but a holder of this new sui generis property right.

[96] Obtaining "control" means that the purchaser has taken whatever steps are necessary, given the manner in which the securities are held, to place itself in a position where it can have the securities sold, without further action by the owner.

U.C.C. § 8-106 cmt. 1.

[97] U.C.C. § 8-106; Jeanne L. Schroeder, Is Article 8 Finally Ready This Time? The Radical Reform of Secured Lending on Wall Street , 1994 Colum. Bus. L. Rev. 291, 393–95 [hereinafter Schroeder, Is Article 8 Finally Ready? ].

[98] Revised U.C.C. § 8-106(c).

[99] The system is not perfect. Under the revisions, the securities intermediary has no statutory duty to respond to the inquiries of others, although it does have to obey the in-structions from its customers. This is a purely pragmatic decision to protect financial intermediaries from being forced to act like a county clerk and be subject to liabilities to third parties. Nevertheless, when securities are held indirectly in the form of security entitlements, creditors are at least on notice of the securities intermediary, and can make inquiry of the securities intermediary. If a securities intermediary refuses to respond to such a third-party inquiries, and the debtor refuses to instruct the securities intermediary to respond, the potential creditor should be suspicious.

terests perfected by "control" are more public and unambiguous than those perfected by automatic perfection and, therefore, should be given priority. Similarly, although public filing is given the status of perfection by positive law, it does not as adequately serve the possessory function of excluding others as does "control"; consequently, secured parties who perfect by filing are subordinate to perfection by "control." In other words, although security interests in investment securities may be minimally objectified through notoriety or filing, "control" prevails because it is a more adequate form of objectification.

(4)—
Benedict v. Ratner Redux

A Hegelian analysis might also offer an aphysicalist reinterpretation, and partial rehabilitation, of some aspects of the apparently physicalist legal doctrines such as ostensible ownership and the Benedict v. Ratner rule. The doctrine of ostensible ownership is both archaic and based on insupportable empirical presumptions. Nevertheless, just "as the toad, ugly and venomous, wears yet a precious jewel in its head,"^[100] this incoherent doctrine hides a valuable germ of Hegelian property analysis buried deep within it. Such an analysis would ask: What does it mean to say that a hypothecation or assignment has created a property interest in the underlying collateral in favor of the secured party/assignee? Under contemporary commercial law theory, substance is supposed to control over form.^[101] Because property rights always implicate third parties (such as creditors), courts are not supposed to look solely to the parties' self-serving characterization of their legal relationship. Consequently, we need to identify the minimum substantive requirements of property. This is another way of saying that property interests need to be at least minimally objective.

The principle that substance prevails over form usually arises when it is clear that the parties intended to create a property interest, but there is

[100] William Shakespeare, As You Like It, act 2, sc. 1.

[101] Article 9 "applies . . . to any transaction (regardless of its form). . . ." U.C.C. § 9-102(1). See also U.C.C. §§ 2-401(1), 9-202.

a dispute as to how the interest is to be characterized. The classic example is the security interest disguised as a lease.^[102] But it is another example of the form/substance dichotomy which raises the concerns underlying ostensible-ownership analysis. Certain transactions which are structured in the form of present conveyances of property may, in substance, be mere options to acquire, or other forms of executory contracts to purchase property in the future. That is, when two parties to a contract self-servingly characterize the transaction as "hypothecation" or an "assignment" or another form of property interest, it does not necessarily make it so. It could just be a promise to prefer a creditor, to assign an asset, or to grant a call option on the asset exercisable in the future. Since property rights affect third parties directly, the characterization should be objectively determinable by third parties.

This means that we need to define the essential elements of property in order to identify when a bona fide, enforceable transfer of a property interest has occurred. My Hegelian approach argues that there must be an element of possession (objectification), as well as the elements of enjoyment and alienation, for a legal interest to be considered a full property. What the court labeled "dominion" in Benedict v. Ratner might be reinterpreted as an attempt to identify what it means to have a property interest in an intangible. Did the purported assignee have any publicly recognizable right to possess, enjoy, or alienate the accounts? It may be that an effective assignment of the accounts had not been made because the assignee's rights to the account were not "possessory" in the Hegelian sense: they were totally subjective, in the sense of private, and not objective, in the sense of publicly recognizable. Possession is the logically first, most primitive element of property. Since there was no "possession," the creation of a property interest was never completed. As the arrangement was private between two persons, and was not recognizable by third persons, any rights which the assignee had should be considered contractual in nature. Under this reasoning, one does not need to invent theories of constructive "fraud" in order to refuse to enforce an inchoate transfer which was never consummated.^[103]

The drafters of the U.C.C. claim to have rejected the rule of Benedict

[102] Parties often try to characterize security interests as leases because leasehold interests often receive more favorable treatment under bankruptcy and tax law, and under generally accepted accounting principles.

[103] This interpretation is consistent with some of the language of Benedict v. Ratner . Although the Court held that failure of an assignment constituted fraud in law, it found that "[i]t does not raise a presumption of fraud. It imputes fraud conclusively because of the reservation of dominion inconsistent with the effective disposition of title and creation of a lien ." 268U.S. at 363 (emphasis added). Later they characterize the precedent as pointing "out that a reservation of full control by the mortgagor might well prevent the effective creation of a lien in the mortgagee." Id . at 364 (emphasis added). They also speak of "reserving dominion" as being "inconsistent with the effective disposition of title." Id . By "dominion," the Court can be read to mean one of the bare-minimum elements of property. Failure of a secured party to take dominion would be inconsistent with the creation of a security interest by definition if a security interest is a property interest and dominion is a necessary element of property. The Court may have intuitively required dominion not merely to prevent fraud in the sense of misplaced reliance—the concern of traditional perfection policy. It may also have found dominion necessary to change the subjective contractual relationship between a debtor and secured party into an objective legal interest which falls within the definition of property—the concern of my neo-Hegelian perfection analysis.

That is, in order for the assignee to take on his paternal role, it was necessary that he possess the Phallus of property.

v. Ratner .^[104] In my reinterpretation, this is an overstatement. The drafters contradict Benedict v. Ratner in the sense that the Supreme Court voided nonnotification assignments of accounts which are not sufficiently policed by the assignee, while the U.C.C. expressly provides that they can be valid and enforceable as Article 9 security interests. The U.C.C. does not, however, reject the underlying concept that to be an enforceable present property interest in accounts, rather than a mere contract right to future assignment of accounts, an assignment must be possessory in the Hegelian sense. They merely require a different form of objectification. The Benedict v. Ratner court required the assignee to objectify his property interest by notifying the account debtors and otherwise to obtain the direct power to deal with the collateral. In contradistinction, Article 9 provides that most assignments of accounts fall within the defined term "security interest" whether or not the assignment is an outright sale or only an assignment as security.^[105] Security interests are not enforceable against most third parties (i.e., are not legally recognizable as full property interests) unless they are perfected.^[106] The formality^[107] required for perfection of assignments of accounts is public filing.^[108]

[104] [T]his section [9-205] provides that a security interest is not invalid or fraudulent by reason of liberty in the debtor to dispose of the collateral without being required to account for the proceeds or substitute new collateral. [Article 9] repeals the rule of Benedict v. Ratner  . . . and other cases which held such arrangements void as a matter of law because the debtor was given unfettered dominion or control over the collateral.

U.C.C. § 9-205 cmt. 1.

[105] U.C.C. § 1-201(37), 9-102.

[106] U.C.C. § 9-301.

[107] In addition to satisfaction of all of the elements of attachment. U.C.C. §§ 9-203, 9-302.

[108] U.C.C. § 9-302. There is a de minimis exception which allows automatic perfection. This is not to imply that the objectification formalities of the Benedict rule and theU.C.C. completely eliminate the opportunities for sham transactions. A security interest is a form of property and, therefore, requires that the secured party have certain rights of enjoyment and alienation as well as possession. In addition, as creatures of contract, security interests must fulfill the attachment requirements of U.C.C. § 9-203. I am merely arguing that objectification is a necessary, not a sufficient, requirement for enforceability of a claim that purports to be a security interest.

In other words, even as the U.C.C. rejected the specific holding of Benedict v. Ratner , Article 9 also arguably adopted its inchoate general principle—security interests should not be enforceable against third parties (i.e., be recognized as property) unless they are made objectively recognizable by third parties. The proposed revisions to Articles 8 and 9 adopt a variation of dominion as the most adequate mode of objectifying a security interest when the collateral consists of investment property. That is, the highest priority is granted by the secured who obtains "control"—the power to deal in the collateral.

The ostensible-ownership doctrine dimly recognizes that property interests need to be possessory, in the Hegelian sense, but confuses the general concept with a specific example—physical custody of tangible things. Lacanian theory reveals why this doctrine is both erroneous and seductive. Hegelian theory enables us to identify the function which ostensible-ownership doctrine unsuccessfully tries to address. Used together, they enable us to get beyond the phallic metaphor to rewrite property doctrine.

III—
The Bundle of Sticks:
The Negative Version of the Masculine Phallic Metaphor

A—
Chix Nix Bundle-O-Stix:
A Critique of the Attempted Negation of Physicality

I—
Prophecies

The most eloquent prophet of the death of property is Thomas Grey. In his justly famous 1980 essay "The Disintegration of Property,"^[109] Grey argued that by reconceptualizing property as a bundle of sticks, modern jurisprudence had undermined its very foundation. As a result, property is doomed to disappear as an important category of law.

[109] See Thomas Grey, The Disintegration of Property [hereinafter Grey, Disintegration of Property ], in Property 69 (J. Roland Pennock & John W. Chapman eds., 22 Nomos, 1980) [hereinafter Nomos, Property].

Unfortunately, despite the undeniable elegance and influence of this essay, Grey's analysis could not be more erroneous and his conclusions more wrong. In the name of rejecting the physicalist, phallic metaphor for property as object, Grey restates it apophatically through simple negation.

Grey claims a dichotomy between the idea of property held by the general public and the idea held by "specialists" such as lawyers and economists. The former, according to Grey, thinks of property as "things that are owned by persons ."^[110] The latter "tends both to dissolve the notion of ownership and to eliminate any necessary connection between property and things. . . . The specialist fragments the robust unitary conception of ownership into a more shadowy 'bundle of rights.'"^[111] That is, laypeople see the fasces of property as an axe, but specialists know that the fact that it can be untied and broken into its component parts means that it is really only a bundle of sticks. At best, property is a label for a legal conclusion. Grey concludes that "the substitution of a bundle-of-rights for a thing-ownership conception of property has the ultimate consequence that property ceases to be an important category in legal and political theory."^[112] Moreover, the concept of property is incoherent, as evidenced by the many different ways the word is used in both legal and colloquial discourse.^[113]

[110] Id . at 69.

[111] Id .

[112] Id . at 81.

[113] Supposedly inconsistent uses of the word "property" identified by Grey include: (i) the rules of conveyancing of real property taught as a first-year course in law school; (ii) the legal and economic distinction between in rem rights as opposed to in personam rights; (iii) the economist's notion of property as those entitlements that should be recognized for the sake of efficiency; (iv) the contemporary legal theory whereby property is a means to protect certain public-law entitlements, as with the "new property" identified by Charles Reich; (v) the constitutional concept of what may not be taken by the government without a public purpose and just compensation—a concept often reified as things or pieces of property, as opposed to other rights (as in the Ackerman "Ordinary Observer's" view); and (vi) Guido Calabresi and Douglas Melamed's concept of property remedies, as opposed to liability remedies. See Grey, supra note 109, at 71–72 (citing Charles A. Reich, The New Property , 73 Yale L.J. 733 (1964)); Calabresi & Melamed, supra note 7.

Unfortunately, Grey's list shows neither that property lacks meaning or has inconsistent meanings nor that any of these views of property reflect a break from the objective view of property. Rather, these different uses of the word merely reflect discussion of the scope of property in the sense of identifying the proper objects of property—for example, whether property rights should be identified with respect to all conceivable external objects, including entitlement against the government, or merely certain traditionally recognized objects, such as parcels of real property—and the different functions that property can or should serve—as in the economic-efficiency argument, the new-property argument, and the Calabresi-Melamed remedies argument. I criticize Calabresi and Melamed's choice of terminology elsewhere. Schroeder, Three's a Crowd, supra note 7.

The intended implication of Grey's description is that the specialist's definition is more sophisticated and more accurate than the layperson's.^[114] The former will, therefore, eventually supplant the latter. By deemphasizing the objective aspect of property and emphasizing the intersubjective aspect, the specialist's definition breaks down the traditionally recognized distinction between property and other forms of legal relations. Accordingly, as property is shorn of its uniqueness, it will cease to play its traditional inspirational and political role in American society.

Grey gives a historical gloss to his analysis. He argues that the lay definition of property as "thing-ownership" is consistent with the eighteenth-century concept of property both as expressed by William Blackstone and, presumably, as adopted by the Framers of the Constitution.^[115]

The conception of property held by the legal and political theorists of classical liberalism coincided precisely with the present popular idea, the notion of thing-ownership. . . .

It is not difficult to see how the idea of simple ownership came to dominate classical liberal legal and political thought. First, this conception of property mirrored economic reality to a much greater extent than it did before or has since. . . .

Second, the concept of property as thing-ownership served important ideological functions. . . . A central feature of feudalism was its complex and hierarchical system of land tenure. . . . On the other hand, property conceived as the control of a piece of the material world by a single individual meant freedom and equality of status. . . .

Third, ownership of things by individuals fitted the principal justifications for treating property as a natural right.^[116]

In other words, Grey argues that the lay-traditional concept of property might have, in fact, cohered with the economic reality of property practice in the early capitalist period. The feudal period was characterized by highly complex, overlapping, and interrelated ownership rules, whereby the same object was subject to the property rights of numerous persons.

[114] A variation on Grey's analytical approach is Bruce Ackerman's dichotomy between the conception of property held by the "Ordinary Observer" and that held by the "Scientific Policymaker." Ackerman argues that the Supreme Court's takings jurisprudence often seems incoherent to the Scientific Policymaker because it does not use sharp definitions or follow a rigid logic. It becomes quite comprehensible, however, if viewed from the perspective of the Ordinary Observer who applies more fluid concepts of practical reasoning and cultural understandings. Bruce Ackerman, Private Property and the Constitution 26–29, 100–16 (1977).

[115] Grey, supra note 109, at 73–74.

[116] Id .

These rights were themselves intertwined with a complex system of mutual obligation and social, political, and religious status. The early capitalist era was, in contradistinction, characterized by the consolidation and simplification of property interests and the separation of property interests from obligation and status. Consequently, when compared with feudal property , capitalistic property seemed to be characterized by unitary interests in tangible objects epitomized by sensuous contact.^[117] According to Grey:

We have gone, then, in less than two centuries, from a world in which property was a central idea mirroring a clearly understood institution, to one in which it is no longer a coherent or crucial category in our conceptual scheme. The concept of property and the institution of property have disintegrated. . . .

My explanatory point is that the collapse of the idea of property can best be understood as a process internal to the development of capitalism itself. . . . [I]t is intrinsic to the development of a free-market economy into an industrial phase. . . . The decline of capitalism may also contribute to the breakdown of the idea of private property, so that the two phenomena mutually reinforce each other. . . .^[118]

How does Grey leap from the observation that contemporary legal scholarship tends to describe property as a bundle of rights to the conclusions that the connection between property and things has disappeared and that the concept of property is losing its significance in our economy? He does so by repeating an error made by Wesley Newcomb Hohfeld: he conflates the concept of the object of property and tangibility. He states, for example:

What, then, of the idea that property rights must be rights in things? Perhaps we no longer need a notion of ownership, but surely property rights are a distinct category from other legal rights in that they pertain to things. But this suggestion cannot withstand analysis either; most property in a modern capitalist economy is intangible.^[119]

That is, Grey cannot grasp the concept of a thing that he cannot grasp.^[120] But the concept of the object of property always included, and continues

[117] Id .

[118] Id . at 74–75.

[119] Id . at 70.

[120] This is a very common move in American legal scholarship. For example, Felix Cohen assumed that because Blackstone and Hegel referred to external objects of property, they had to be referring to the physical relations between men and tangible things.See Felix S. Cohen, Dialogue on Private Property , 9 Rutgers L. Rev. 357, 361–63 (1954). To do so, Cohen had to ignore both the definitions and the examples of external things expressly provided by both writers.

Kennedy tars the conceptualization of intangibles as objects of property with the pejorative "reification." See Kennedy, supra note 34, at 335. Kennedy's approach presupposes that tangibles are naturally, essentially, prelegal, real things and that intangibles have some sort of preexisting, prelegal, unthinglike essence, so that thinghood is inauthentically and illegitimately thrust upon them. If one defines "thing" or object as merely the correlate of the self-conscious subject, then everything that is not a subject is, by definition, an object or thing. Consequently, intangibles do not have to be "thingified" but merely fall within a definition of object. Kennedy seems to be using the word "thing" to refer to the object of property rights—that is, a res . In this context, a thing is not a natural object but a symbolic one. The declaration that an object can serve as a res is reification. In other words, by recognizing property, we reify tangible as well as intangible objects.

I believe Kennedy has a good point that gets lost because of unacknowledged acceptance of the masculine phallic metaphor for property. The good point is that it is not necessary, and is perhaps misleading, to analyze property interests in intangibles by analogy to the properties of tangibles. Because Kennedy implicitly thinks, however, that the only real things are tangible things one can see and hold—the phallic metaphor—he incorrectly conflates comparing intangibles and tangibles with making intangibles into things—a process he incorrectly calls reification.

Even the most sophisticated analysts often cannot completely resist the phallic lure of tangibility. For example, in his excellent recent article, J.E. Penner makes a point very similar to mine that "things" is not a category that exists outside of property. Penner, supra note 6, at 807. He also criticizes Hohfeld for confusing traditional property with the right to "tangible objects." Id . at 712. And yet when Penner discusses the categories of res of property, he occasionally distinguishes intangibles from "true objects." Id . at 811. For example, although he realizes that debts are "undoubtedly property, [they] are close to the line because they are just barely things. . . ." Id . at 802. Consequently he conflates the concept of a debt as the right against someone for the payment of money, with the money paid. Id . at 811.

Similarly, in an otherwise cogent discussion of property rights in intangibles, Stephen Munzer comes to the extraordinary conclusion that the only way that "embodied entities such as human persons can have property in nonmaterial things . . . [is] through some physical manifestation." Munzer, supra note 60, at 72. As I discuss in Section II.B.3 of this chapter, this is because Munzer is conflating the requirement that property be objectified (i.e., possessory) with the necessity that it be physicalized.

to include, intangible things . Neither the concept of property as an interrelationship between subjects nor the concept of intangibility implies the elimination of the object from property jurisprudence. Grey's confusion does illustrate, however, how the archetypical image of property as physical custody of a tangible object is a misleading starting point for analyzing property interests generally. Yet it is this image that Grey implicitly keeps in his mind and that leads him to believe that modern concepts of property are becoming incoherent.

In support of this so-called lay-traditionalist/specialist-modern di-

chotomy of property, Grey contrasts the definitions of property expounded by Blackstone and Hohfeld. In order to analyze this dichotomy, it is useful to take an extended side trip through a lesser-known article—published the same year as Grey's—by Kenneth Vandevelde that more thoroughly, but succinctly, sets forth many of the assumptions about property theory that underlie Grey's work. I will then consider certain other examples Grey identifies of simplistic "thing-ownership" theories. Finally, I will explore the political context in which Grey's analysis is located. I will argue in contradistinction to Grey that the laity are not less sophisticated about property. Rather, they are much more sophisticated than the self-styled experts of academia, easily adopting and inventing fluid concepts of multiple and intangible property concepts. Property doctrine and scholarship lag far behind property practice. Grey incorrectly accuses the general public of making a mistake which is more accurately attributed to Waldron—reducing property to the single element of sensuous possession. Yet Grey himself ends up reducing property to a single element—this time the masculine element of intersubjective exchange—precisely because he conflates possession with sensuous grasp.

2—
Vandevelde's Analysis

Back in the high and palmy days of Critical Legal Studies, a recent law-school graduate published an ambitious article that cogently presented the common contemporary account—or, as I would argue, misconception—of the differences between the property jurisprudence of the nineteenth and twentieth centuries. In The New Property of the Nineteenth Century: The Development of the Modern Concept of Property ,^[121] Kenneth Vandevelde argued that certain common assumptions of property law are not universal but reflect a paradigm that developed with early capitalism and peaked in the nineteenth century. The nineteenth-century paradigm—exclusive, unitary, objective property expressed through the sensuous grasp of tangible things—was arguably appropriate to the early capitalist economy, according to Vandevelde, but this paradigm began degenerating in the twentieth century, as the capitalist economy became more complex. This demonstrates that in our current "information age" the old paradigm is ripe for replacement with a new paradigm that better explains contemporary property relations.

Unfortunately, the material Vandevelde presents does not support the dichotomy he (like Grey) wishes to set up. Vandevelde insists on a radi-

[121] Kenneth Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property , 29 Buff. L. Rev. 325 (1980).

cal purist version of the nineteenth-century paradigm of property, which he attributes to Blackstone, and contrasts it with an equally radical purist negation, which he attributes to Hohfeld. This is precisely the same move which Grey makes in his article, albeit in lesser detail.

My point is not to criticize Vandevelde or Grey for using abstract, simplified models as tools for analyzing messy empirical reality. Rather, I will argue that their specific models do not serve the purpose for which they were invented. In the name of burying Blackstone and praising Hohfeld, Grey and Vandevelde actually imply that the Blackstonian paradigm is correct and that the Hohfeldian paradigm is not property!

Indeed, neither Hohfeld, Grey, nor Vandevelde can even imagine property other than as an ultra-"Blackstonian" phallic construct. Whereas Grey and Hohfeld present Blackstone as seeing only the object of property, Hohfeld and his progeny see only its subjects. Yet it is the Hohfeldians who are obsessed with the phallic physical object itself; their primary concern is its presence or absence in the discourse of property. In their insistence on denying castration by trying to forget the Phallic barrier to intersubjective relations, they not only seek to deny the mediating object—they deny all sophistication to Blackstone.

I do not deny that there has been evolution in the dominant legal conception of property. As I shall discuss below, Blackstone was a man of his time who could not entirely escape the masculine phallic metaphor. What I do argue is that the specific Hohfeldian criticism of Blackstone made by Grey and Vandevelde misses its mark. Moreover, the Hohfeldians have not made the paradigm shift or reconceptualization of property law they claim. At most they identify a crisis within the existing paradigm. The positive masculine phallic paradigm is inadequate precisely because it privileges one element of property—possession conflated with sensuous grasp—over the other two. Consequently, in order to make their argument, the Hohfeldians must repress and deny those aspects of Blackstone's theory that either implicitly or explicitly recognize the intersubjective nature of property. Conversely, they repeat Hohfeld's confusion as to the objective aspect of property rights. In an attempt to avoid the phallic metaphor, they privilege one masculine element of property—in this case alienation in the form of intersubjective relations—and repress the others. And, as any student of psychoanalysis knows, "repression and the return of the repressed are one and the same thing."^[122]

[122] Lacan, Seminar II, supra note 2, at 46.

a—
The Hohfeldian Attribution of the Phallic Metaphor to Blackstone

The contrast Vandevelde sets up is as follows: "At the beginning of the nineteenth century, property was ideally defined as absolute dominion over things."^[123] Vandevelde calls this the absolutist and physicalist conception of property and names Blackstone as its spokesman.^[124] This conceptualization became more and more unworkable throughout the nineteenth century as more and more intangible assets became subject to the property-law regime and as more and more exceptions to the absolutist nature of property rights were recognized. Finally, in the early twentieth century, Hohfeld created a new vocabulary to describe the new property interest: "This new property was defined as a set of legal relations among persons. Property was no longer defined as dominion over things. Moreover, property was no longer absolute, but limited, with the meaning of the term varying from case to case."^[125] This disaggregation of property, according to Vandevelde, threatens to undermine the traditional legal regime:

Once property was reconceived to include potentially any valuable interest, there was no logical stopping point. Property could include all legal relations. . . .

Such an explosion of the concept of property threatened to render the term absolutely meaningless in two ways. First, if property included all legal relations, then it could no longer serve to distinguish one set of legal relations from another. It would lose its meaning as a category of law. Second, the greater the variety of interests that were protected as property, the more difficult it would be to assert that all property should be protected to the same degree.^[126]

At first blush, there seems to be great power in this argument. Unfortunately, it rests on a misreading of Blackstone.

Vandevelde, following Grey, quotes Blackstone's well-known definition of property as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe."^[127] According to Vandevelde, "Blackstone's definition contained essentially two elements: (1) The physicalist conception of property that required some 'external thing' to serve as the object of property rights, and (2) the absolutist concep-

[123] Vandevelde, supra note 121, at 328.

[124] See id . at 329.

[125] Id . at 330.

[126] Id . at 362.

[127] 2 Blackstone's Commentaries, supra note 34, at 2, cited in Vandevelde, supra note 121, at 331 and Grey, supra note 109, at 73.

tion which gave the owner 'sole and despotic dominion' over the thing."^[128] Vandevelde, of course, considers this to be a notion of "property" as physical custody of a thing, with "thing" meaning "tangible thing"—property as possession, and possession as sensuous grasp. But Blackstone's own language, standing on its own, does not support this analysis.

First, Blackstone's definition of property emphasizes its intersubjective nature in addition to its objective nature. That is, he does not, as Vandevelde suggests, present property as an immediate, binary subject-object relation. Blackstone not only is aware but expressly states that the concept of dominion can only be understood as the right of one individual in relation to other individuals. Blackstone recognizes property as objective, not only in the sense of relating to an object but also in the sense of being generally enforceable against the relevant community of legal subjects.^[129] That is, Blackstone does not merely describe property as power over a thing, as Vandevelde suggests. This is reflected in Blackstone's very careful language. He speaks of property as a claim to dominion and of the exercise of that claim vis-à-vis any other individual in the universe . As we shall see, "a claim enforceable against the world" will be precisely Hohfeld's definition of in rem (that is, property) rights. Blackstone is scrupulous in his Commentaries to refer to "property" only in the sense of the legal right and never in the sense of the object with respect to which the right exists.^[130] He speaks of having "a property in" certain things but does not refer to owned objects as "property."

Second, although it is true that Blackstone recognizes that property is objective in that property rights among subjects always relate to an ex-

[128] Vandevelde, supra note 121, at 331. David Frisch similarly misreads Blackstone: "If the world were inhabited by one person, Blackstone's description of property . . . might make sense." David Frisch, Remedies as Property: A Different Perspective on Specific Performance Clauses , 35 Wm. & Mary L. Rev. 1691, 1702 (1994).

[129] This is similar, of course, to my argument that property interests must be objectified as a condition of enforceability. Hohfeld similarly recognizes what I have called the "Community Objective" nature of property but does not recognize the "Philosophical Objective" nature. I set forth my taxonomy of objectivity in Jeanne L. Schroeder, Subject: Object , 47 U. Miami L. Rev. 1 (1972) [hereinafter Schroeder, Subject: Object ].

[130] Blackstone does occasionally speak of a person's property, but I believe that in each case the context makes it clear that by this he is referring to the person's rights and not to the underlying thing to which the rights relate.

Kennedy criticizes Blackstone for not discussing the ambiguity of property as rights and property as thing. See Kennedy, supra note 34, at 318–19. This criticism is anachronistic. The use of "property" to denote the underlying thing was novel at the time Blackstone was writing. Charles Donahue, Jr., The Future of the Concept of Property Predicted from Its Past, in Nomos, Property, supra note 109, 28, 34. MacPherson gives a similar account of the development of the meaning of the word "property." See MacPherson, supra note 33, at 6–9.

ternal object, nothing indicates that Blackstone's definition of property is necessarily limited to rights to physical things. He merely speaks of "external things."^[131]

Indeed, Blackstone makes it very clear that he uses the word "things" not in the sense of physical things but as the objects of property. Such objects are defined in the negative—as that which are not human. Blackstone defines the things that are the objects of property as follows: "The objects of dominion or property are things, as contradistinguished from persons . . . ."^[132] This is the traditional definition of object or thing used in philosophical discourse—including the discourse of Blackstone's day. This is, of course, the definition adopted by Hegel a little over fifty years later. An "object" is external to—in the sense of other than—the "subject."^[133]

Moreover, Blackstone not only is aware but absolutely insists that "things," as so defined, are not limited to the corporeal and the tangible. As Vandevelde admits, Blackstone divides the class of the types of realty that could serve as the objects of property into "corporeal hereditaments—things which could be detected by the senses, and incorporeal hereditaments—things which existed only 'in contemplation.'"^[134] Blackstone expressly tries to wean his readers away from the physicalist notion of the objects of property:

An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely an idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And

[131] The title of the second volume of Blackstone's Commentaries may seem curious to the contemporary American reader: "The Rights of Things." Obviously, in this context the word "of" is being used in the sense of "concerning" rather than in the sense of "owned by."

[132] 2 Blackstone's Commentaries, supra note 34, at 16.

[133] See Schroeder, Subject: Object, supra note 129. Nevertheless, Grey and Vandevelde assertorially insist that Blackstone is wrong. Similarly, Frisch ignores Blackstone's express language to the contrary and declares that according to Blackstone's conception of property, "property can only exist in tangible things." Frisch, supra note 128, at 1702 n.38.

[134] Vandevelde, supra note 121, at 331 (footnotes omitted).

indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand.^[135]

Similarly, the types of personalty that could serve as the objects of property

also [were] divided into two categories: in possession and in action. Chattels personal in possession consisted of actual possession of some thing while chattels personal in action, or choses in action, consisted only of the right to hold the thing in possession at some future time. As Blackstone put it, a chose in action was a "thing rather in potential than in esse."^[136]

As I shall point out when I discuss Vandevelde's reading of Hohfeld, Vandevelde—and, as we shall see, Hohfeld—not Blackstone, assumes that the word "thing" means tangible thing. In so doing, he ignores not only Blackstone's own express definition but hundreds of years of Western tradition. As we will see, in making this error, Vandevelde is in good company.

b—
The Lacanian Argument for Locating the Phallic Metaphor in Blackstone

Vandevelde and Grey grossly misinterpret Blackstone's theory. But to defend Blackstone from the fallacious charges leveled at him by the Hohfeldians is not to assert that his is a postmodern or philosophically adequate account of property. Although Blackstone recognized the intersubjective as well as the objective aspect of property and understood that

[135] 2 Blackstone's Commentaries, supra note 34, at 20. Blackstone wrote, of course, in a time when money was usually represented by coins. Even the concept of paper money was new. The case of Miller v. Race, 1 Burr. 452, 97 Eng. Rep. 398 (King's Bench, 1758), which established the rule of negotiability by which promissory notes issued by the Bank of England could freely circulate as currency, had only recently been decided when the Commentaries were published. Consequently, from the perspective of the late eighteenth century, there was little reason to distinguish the concept of money from the coins that are money's token, so money itself seemed to be a tangible thing.

Today, of course, most money is not represented by any physical token—whether metal or paper. Rather, it consists of unsecured debt obligations of banks to their customers evidenced by entries on the banks' books. Even the expression "book" entry adds an inaccurate tangible aura to the transaction, as most of these records are, in fact, maintained in electronic form. Consequently, from the perspective of the late twentieth century, money seems to epitomize incorporeality.

[136] Vandevelde, supra note 121, at 332 (footnotes omitted).

the objects of property could not be limited to the tangible, by defining property as the claim to a thing enforceable against others he followed the masculine tendency of reducing property to the single Hegelian element of possession and of repressing the element of enjoyment.

Moreover, Blackstone's treatment of personal property, generally, and intangible property, specifically, is sketchy when compared with his treatment of real property. This reflects the fact that this "branch of the law . . . was, in Blackstone's time, relatively less developed than that of real property. . . ."^[137] As A.W.B. Simpson notes, the Commentaries "smells of the countryside; the law is the law of the country gentry, not Cheapside. The Commentaries reflects the essentially rural character of the high civilization of the eighteenth century."^[138] Blackstone does include among the forms of choses in action a few of the most important objects of modern intangible property: insurance, copyrights, and debts. But many, or most, of the forms of intangible personal property that constitute a significant proportion of the wealth in contemporary society are "essentially emanations of the urban commercial world of merchants, principally though not exclusively taking the form of offshoots of commercial contract law."^[139] They were, therefore, still relatively new and exotic—or perhaps even not yet invented—in Blackstone's time and, therefore, are not discussed.

Finally, Blackstone's discussions of the modern forms of intangible objects of property are hardly satisfactory. Simpson notes in particular that Blackstone's attempt, reflecting the custom of his time, to distinguish intangibles from tangibles as those things that are "recoverable by legal action, as opposed to being in the actual possession of the owner," and his proposition that all intangibles are created by contract seem particularly defective.^[140] But even this analysis is inaccurate in that it adopts the phallic metaphor and assumes, like Waldron, that real property is tangible. I have already raised in my discussion of Waldron's theory in section II.A of this chapter how the traditional understanding of estates in land cannot be reduced to the land itself. Moreover, following eighteenth-century taxonomy, Blackstone includes as real property several of the incorporeal hereditaments that are forms of intangible property and might even be considered forms of personal property in contemporary parlance: advowsons, tithes, offices, dignities, some types of franchises, pensions,

[137] Simpson, supra note 34, at xii.

[138] Id .

[139] Id . at xii–xiii.

[140] Id . at xiii.

and annuities.^[141] These discussions are quite well developed but are only of passing interest to the modern commercial lawyer concerned with problems of contemporary forms of intangible property.

In other words, although Blackstone understood as a matter of theory that property rights were not limited to rights concerning those objects that can be seen and sensuously possessed, as a matter of practice he did not derive a convincing account of property rights in modern intangibles. This may have been in part because of one reason offered by Grey and Vandevelde. During the early capitalist era when Blackstone was writing, absolutist, possessory rights in corporeal objects had become relatively more important than divided rights in incorporeal objects, which characterized the previous feudal system of societal organization. Consequently, it may have become analytically convenient to view these newly developed forms of property as the epitome of liberal legal and political rights. Blackstone's vocabulary was sufficient for his time—as shown in his exhaustive discussions of eighteenth-century intangible "real" property. In other words, although the physical, unitary paradigm of property is technically inaccurate, a legal vocabulary which spoke of property as a unitary right may have been adequate to the task of analyzing most eighteenth-century property issues in precisely the same way that the eighteenth-century paradigm of Newtonian physics seemed adequate to describe the macroworld it measured, despite its inaccuracy.

To restate this argument in my Lacanian terminology, whether or not the historic Blackstone recognized that the positive masculine phallic paradigm of property was inaccurate, he did not need (and, perhaps, was unable) to construct an adequate substitute paradigm. Although on one level he recognized that property was a symbolic function, his vocabulary may indicate that he did not totally resist the temptation to collapse the symbolic into the real.

But even this goes too far if it infers from the fact that Blackstone adopted the unitary property vocabulary of his time that Blackstone—or his contemporaries—thereby did not recognize multiple property rights.

3—
Atoms V. Molecules

Specifically, Vandevelde and Grey accuse Blackstone of adopting a unitary picture of property,^[142] as contrasted with the modern "bundle of sticks" approach. This is, once again, not strictly

[141] 2 Blackstone's Commentaries, supra note 34, at 20–43.

[142] Frisch similarly declares that according to Blackstone's conception of property, "all property is absolute." Frisch, supra note 128, at 1702 n.38.

accurate. Blackstone does not by any stretch of the imagination argue that ownership always consists of the complete and inviolable rights to possess, use, and alienate the object of the right. Indeed, the common-law concept of estates in land that Blackstone explicates in excruciating detail is an elaborate system of dividing and limiting these rights. The majority of Blackstone's volume on property concentrates precisely on the myriad ways in which these estates may be transferred and on the different limitations inherent in different property rights.

The difference is that Hohfeldian analysis focuses on the components of property, rather than on the various ways these components combine to form recognizable property interests. In contradistinction, Blackstone's common-law approach concentrates on identifiable combinations of property rights—with each combination given a specific name as a different estate or hereditament—rather than on the constituent components. Therefore, although in the Blackstonian paradigm the owner of each estate has all the unfettered rights, duties, and liabilities of that estate, the various estates themselves contain a wide variety of combinations of rights and liabilities. To put it another way, the Hohfeldian vocabulary describes the atoms of property; the Blackstonian vocabulary describes the molecules formed from these atoms.

This interpretation suggests that the Blackstonian unitary approach is neither less sophisticated than nor necessarily inconsistent with the Hohfeldian disaggregated approach toward property in theory. It might, however, suggest that application of the two approaches might be likely to lead to different results in practice.

The Hohfeldian atomic analysis might have an advantage in flexibility and creativity in that it highlights the possibility of crafting a seemingly infinite combination of legal rights in response to changing market needs. The Blackstonian molecular approach, highlighting specific, traditional combinations of rights, might not encourage the same degree of experimentation and adaption to changing circumstances. To switch metaphors, Hohfeldian property is made to order; Blackstonian property is off the rack. It might not be possible to alter Blackstonian property to "fit" all legal situations as well as Hohfeldian property could.

Duncan Kennedy has identified another related disadvantage of what I call the Blackstonian approach.^[143] The identification of molecules of property, rather than atoms, can make the identified molecules look natural or inevitable and thus hide the political choices inherent in any prop-

[143] See Kennedy, supra note 34, at 335–37, 348.

erty regime. Accordingly, the molecular approach can be used as a tool of the status quo.^[144]

But Blackstonian property might have relative advantages that could outweigh these disadvantages. Pret-a-porter is considerably cheaper than couture and may fit well, if not perfectly, and look good enough. As I have already suggested, and as I shall explore at greater length below, the Hohfeldian analysis risks losing sight of the necessity of an object of property and the common elements of property, as well as the significance of specific combinations of seemingly disparate property rights. It may, therefore, lack not only intuitive attractiveness but analytical strength when used as a tool for describing existing social and economic institutions and legal practices.

Leaving fashion and returning to chemistry, the Hohfeldian conclusion that property is merely a bundle of sticks and is indistinguishable from other types of legal rights is a non sequitur similar to concluding from the identification of elements either that there are no such things as compounds or that the distinction between different compounds is inessential. It may be technically correct, and analytically useful for some purposes, to recognize that both glucose and petroleum are made of oxygen, carbon, and hydrogen atoms and to understand that new combinations of these atoms could be identified or created. When I bake a cake or drive a car, however, I care little about the similarity and separability of the component atoms and a lot about being able to tell a sugar bowl from a gas tank.

a—
Hohfeld's Attempt to Deny the Object

If Grey and Vandevelde do not acknowledge Blackstone's insistence on the intersubjective aspect of property, it may be because they too quickly accept Hohfeld's dismissal of the objective aspect of property rights. They thereby attribute to Blackstone a lack of philosophical sophistication that is more properly ascribed to Hohfeld. According to Vandevelde, one of the distinctions between Blackstone and Hohfeld was

[w]hether property was the thing or the right over the thing[.] Blackstone had made clear that property could exist only in relation to some thing. Hohfeld rejected even this minimal association with tangible objects, arguing that property could exist whether or not there was any tangible thing to serve as the object of the rights.^[145]

[144] See id . Kennedy reaches this conclusion but does not use my molecular-atomic vocabulary.

[145] Vandevelde, supra note 121, at 360.

As we have seen, this statement is not just misleading but outright erroneous. Vandevelde assumes that because Blackstone insisted that property rights must relate to an object, Blackstone believed (i) that the object of property must be tangible and (ii) that property rights are not also intersubjective. Vandevelde assertorially denies Blackstonian intangibles through the extraordinary means of denying the existence of intangible things . Despite hundreds of years of Western philosophical and jurisprudential understanding to the contrary, Vandevelde denies the possibility of any type of thing except physical things.

Calling a right a thing did not make it one. Furthermore, if rights were things, then all legal rights could be considered property and Blackstone's fundamental distinction between rights over persons and rights over things was destined to evaporate.^[146]

Thus, with a stroke of a key, Vandevelde repeals modern commercial law—large chunks of Articles 3, 4, 5, 7, 8, and 9 of the U.C.C. disappear in a flash!^[147] He does not recognize that a right can be, and is on a regular basis recognized as, a thing and the object of property when it is a right against a third party to a transaction.

That is, if X buys a good from Y on credit, X's obligation to pay Y is called an "account."^[148] If we are only concerned with the two-party relationship between X and Y, we call this "contract" rather than "property," even though the account can be analogized as an "object," in the philo-

[146] Id . at 332.

[147] Under the U.C.C., debts can take the form of general intangibles, accounts, chattel paper, instruments, or various types of investment property. Certain other types of intangibles, such as deposit accounts and insurance policies, are recognized but expressly excluded from the U.C.C. Articles 3 and 4 govern certain property issues concerning those debts and other intangible rights which are reified into negotiable instruments; Article 5 governs those which take the form of letters of credit; Article 7 governs those which take the form of documents, and Article 8, those which take the form of investment property. All forms of debt and intangibles (whether or not reified into an instrument, letter of credit, document, or certificate) can be conveyed as property and can serve as collateral for security interests under Article 9 or the common law. Such intangibles are also property of the debtor for the purposes of the Bankruptcy Code. See 11 U.S.C. 541(a)(1) (1988). Indeed, bankruptcy law reflects the traditional philosophic and jurisprudential understanding that things are not limited to tangibles but potentially include all external objects. Bankruptcy cases are customarily denominated by the heading "In re  . . . " This is frequently translated as "in the matter of . . . " But the word res is also used in law to designate the object of a property right in the sense of the object in which the property right is asserted. This is because the original Latin word res means both "the matter in dispute" and "thing," or what I have been calling the object.

[148] U.C.C. § 9-106 (1990).

sophical sense of something external to the two legal subjects. This is because the property aspect adds nothing to the legal analysis of the twoparty relationship between X and Y at this point .^[149] If, however, Y sells the X account to Z, it becomes meaningful to recognize the object nature of the account and to conceptualize the assignment of the account as a transfer of a property interest in an object—that is, the X account—from Y to Z pursuant to personal-property conveyancing principles. Indeed, it is in precisely this sense that Blackstone correctly included debts within the category of choses in action that can serve as the object of personal property. Moreover, it is the approach to debt taken in Article 9 of the U.C.C. This characterization does not, as Vandevelde suggests, break down the distinction between rights over persons—contract—and rights over things—property. Y's contract rights against X to enforce the account remain distinguishable from Y's property rights vis-à-vis Z and the rest of the world to transfer Y's rights in the account to others. Consequently, modern commercial law and economic practice correctly recognize debts as objects of property.^[150]

Vandevelde and Grey come by their misconception honestly in that Hohfeld makes a similar conceptual error. Hohfeld may have been a great jurisprude, but he was an indifferent philosopher and no psychoanalyst. In his zeal to emphasize the intersubjective nature of legal rights, he adopted a radically physicalist conception of the object. In his attempt to identify intersubjective relations, he tried to deny that all relations are mediated.

Hohfeld's precise taxonomy of legal rights and liabilities was motivated by two closely related goals: (i) to avoid ambiguity and (ii) to differentiate between "legal relations [and] the physical and mental facts that call such relations into being."^[151] One of the areas that he thought particularly exhibited latent ambiguities is the concept of property.^[152] He

[149] It may be relevant to the philosophical analysis, however. For example, because Hegel wants to distinguish the concepts of abstract personality and objects, he analyzes all contracts as involving property. See Hegel, The Philosophy of Right, supra note 23, at 71–72.

[150] Kennedy criticizes Blackstone's treatment of debt as property in a way that is similar to Vandevelde's criticism of Blackstone. See Kennedy, supra note 34, at 338–39. Like Vandevelde, Kennedy correctly identifies the contract aspect of the two-party debt relationship, but he fails to see that debt also takes on a property aspect when the obligee's rights against the obligor become the object of a legal relationship or dispute with a third party.

[151] Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Legal Reasoning 23, 27 (W. Cook ed., 1919). For a particularly useful exegesis on how Hohfeld's taxonomy fits into a specific jurisdictional tradition analyzing the nature of legal rights, see Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld , 1982 Wis. L. Rev. 975 (1982).

[152] Hohfeld, supra note 151, at 29.

specifically criticized Blackstone's division of hereditaments into the corporeal and the incorporeal.

Since all legal interests are "incorporeal"—consisting, as they do, of more or less limited aggregates of abstract legal relations—such a supposed contrast as that sought to be drawn by Blackstone can but serve to mislead the unwary. The legal interest of the fee simple owner of land and the comparatively limited interest of the owner of a "right-of-way" over such land are alike so far as "incorporeality" is concerned; the true contrast consists, of course, primarily in the fact that the fee simple owner's aggregate of legal relations is far more extensive than the aggregate of the easement owner.^[153] Hohfeld's general proposition that all legal relations—including property—are relations among subjects and not relations between a subject and an object seems self-evidently correct today. Unfortunately, he missed the point that property is a relationship between subjects that is mediated through an object. This is because the only way Hohfeld could conceive of objectivity was through the phallic sensuous grasping metaphor. Hohfeld's ostensible rejection of the phallic metaphor was merely a repression and therefore a reflection and reinstatement of tangibility as the only possible way of thinking about the object. Simple negation is restatement. What is repressed in the symbolic always returns in the real.^[154]

The Hohfeldian approach seems attractive because at first blush it appears to offer a way of satisfying the insatiable human desire to achieve impossible immediate intersubjective relations. By showing that specific tangible things cannot adequately serve as a mediator between subjects, it seems, for a moment, to disprove the necessity for, and the fact of, mediation. Yet Hegel and Lacan argue that mediation always remains necessary for the creation of subjectivity and intersubjective relations. The inadequacy of the physical (i.e., seemingly real) objects chosen to stand in for the mediating Phallic object of desire does not mean that the necessity for mediation disappears. Rather, it makes it all the more necessary.

Hohfeld's denial of the objective mediating aspect of property can be seen in his discussion of the related subject of the distinction between in personam and in rem rights. First, Hohfeld warns that a simplistic, literal translation of the Latin terms implies that

if a right in personam is simply a right against a person, a right in rem must be a right that is not against a person, but against a thing . That is, the ex-

[153] Id . at 30.

[154] Lacan, Seminar III, supra note 5, at 86.

pression right in personam , standing alone, seems to encourage the impression that there must be rights that are not against persons. . . . Such a notion of rights in rem is, as already intimated, crude and fallacious; and it can but serve as a stumbling-block to clear thinking and exact expression.^[155]

So far, so good. At this point, however, Hohfeld makes a move that his argument does not require. He continues:

A man may indeed sustain close and beneficial physical relations to a given physical thing: he may physically control and use such thing, and he may physically exclude others from any similar control or enjoyment. But, obviously, such purely physical relations could as well exist quite apart from, or occasionally in spite of, the law of organized society: physical relations are wholly distinct from jural relations.^[156]

Even now, Hohfeld goes too far. His strong point is that legal relations are by definition social relations, which only exist between and among subjects. The legal symbolic relationship of property is not identical with the physical relation that exists between an owning subject and an owned object. It does not follow from this, however, that "physical relations are wholly distinct from jural relations." The different orders of experience overlap to form a Borromean Knot so that the same object can simultaneously perform functions in more than one order. Jural relations with respect to tangible objects, for instance, govern, among other things, who of a number of rival subjects is entitled to enjoy sensuous relations with the objects.

This physicalist confusion also leads Hohfeld to make the unnecessary assertion that not only are rights in rem rights against subjects as opposed to rights against objects, but they are not even rights among subjects with respect to objects —or, to put it in Hohfeld's vocabulary, rights "to a thing": limiting in rem rights to rights to a thing "would exclude not only many rights in rem , or multital rights, relating to persons , but also those constituting elements of patent interests, copyright interests, etc."^[157] Elsewhere, he writes:

[I]t must now be reasonably clear that the attempt to conceive of a right in rem as a right against a thing should be abandoned as intrinsically unsound, as thoroughly discredited according to good usage, and, finally, as

[155] Hohfeld, supra note 151, at 75.

[156] Id .

[157] Hohfeld, supra note 151, at 78. As I explain below, Hohfeld unsuccessfully proposed that the traditional dichotomy between in personam and in rem rights be replaced by his new dichotomy of paucital and multital rights.

all too likely to confuse and mislead. It is desirable, next, to emphasize, in more specific and direct form, another important point which has already been incidently noticed: that a right in rem is not necessarily one relating to , or concerning a thing, i.e., a tangible object. Such an assumption, although made by Leake and by many others who have given little or no attention to fundamental legal conceptions, is clearly erroneous.^[158]

That is, to Hohfeld the word "thing" can only mean "tangible thing." This seems at first blush to contradict his and Vandevelde's contention that Blackstone was wrong to divide hereditaments between the corporeal and the incorporeal because they are in fact all incorporeal. I believe, however, that these passages are merely confusing, not contradictory.

Hohfeld tries to identify the minimum distinguishable elements of property rights. He argues that Blackstone's insistence on distinguishing between tangible and intangible property—that is, hereditaments—is not only unnecessary or irrelevant to scrutiny at the atomic level but actually pernicious insofar as it complicates the analysis. Hohfeld also tries to wean lawyers away from positive masculine phallic metaphor for property as sensuous grasp. As I have argued, the attempt to locate the elements of property through the use of a tangible archetype must be ultimately unsuccessful in that it requires the use of legal fictions that intangible objects constructively have characteristics that they could not possibly have. I also agree that not only in colloquial speech but also in judicial opinions and jurisprudential discussions, many lawyers conflate the word "thing" with physicality, despite a long intellectual history to the contrary.

It does not follow from any of this that property relations between subjects do not relate to an external object.

b—
Subjectivity, Objectivity, Intersubjectivity

The word "objectivity" has many different meanings.^[159] I have so far generally used it in the sense I have elsewhere termed "Philosophical Objectivity"—that is, the relationship of subjects (conscious legal actors) with respect to objects (everything else). Another way of defining objectivity is to contrast it with its negative of subjectivity conceived as the viewpoint of a single individual subject; I term this "Individualistic Subjectivity." Consequently, what I have named "Community Objectivity" refers to the intersubjective agreement of a community of subjects. My earlier suggestion that the Hegelian element of possession might better be termed "objectification" reflects the

[158] Id . at 85.

[159] Schroeder, Subject: Object, supra note 129.

concepts of both Philosophical Objectivity and Community Objectivity. Possession is objective in that it is the way the abstract subject takes on individuating characteristics by investing its will into objects. It is Community Objective in that in order to serve property's function of recognition, possession must also include the exclusion of others in a way that is recognizable by the relevant community.

Hohfeld himself instinctively recognizes the need to identify an objective aspect of property or in rem rights to contrast with the subjective aspect of contract or in personam rights. To Hohfeld, in personam rights are rights that are Individualistically Subjectively enforceable. In Hohfeld's terminology:

A paucital right, or claim (right in personam ), is either a unique right residing in a person (or group of persons) and availing against a single person (or single group of persons); or else it is one of a few fundamentally similar, yet separate, rights availing respectively against a few definite persons.^[160]

Conversely, in rem rights are rights that are Community Objectively enforceable: "A multital right, or claim (right in rem ), is always one of a large class of fundamentally similar yet separate rights, actual and potential, residing in a single person (or single group of persons) but availing respectively against persons constituting a very large and indefinite class of people."^[161] In other words, a contract right is in personam because in most cases I can only enforce the contract against the specific person or persons who are parties to the contract. My property right in my apartment is in rem because I have the right to exclude not only specific persons from my apartment but the "whole world."

Notice that despite his denial, Hohfeld has come full circle to Blackstone's definition of property—a right is a property if it is dominion claimed and enforceable against the world . In explicating his theory of multital rights, Hohfeld by illustration tries to show that they do not all necessarily involve a thing. He lists five categories of multital rights:

1. Multital rights, or claims, relating to a definite tangible object . . . . 2. Multital rights (or claims) relating neither to definite tangible object nor to (tangible) person [such as patentee's rights] . . . ; 3. Multital rights, or claims, relating to the holder's own person [in the sense of one's body] . . . ;

[160] Hohfeld, supra note 151, at 72.

[161] Id . Colloquially, we tend to say that an owner has rights enforceable "against the whole world." This is, of course, not literally true as a legal matter. The expression "whole world" should be considered as an idiomatic expression for Hohfeld's "large and indefinite class."

4. Multital rights residing in a given person and relating to another person, e.g., the right of a father that his daughter shall not be seduced, or the right of a husband that harm shall not be inflicted on his wife so as to deprive him of her company and assistance; 5. Multital rights, or claims, not relating directly to either a (tangible) person or a tangible object, e.g., a person's right that another shall not publish a libel of him, or a person's right that another shall not publish his picture,—the so-called "right of privacy" existing in some states, but not in all.^[162]

On one level, one could try to argue that all of these are examples of rights with respect to things if anything external to the abstract subject (self-consciousness as free will) can potentially serve as the object of property. This includes our bodies (Hohfeld's third example), other persons (Hohfeld's fourth example), and our talents, qualities, and reputation (Hohfeld's fifth example). But even for Hegel, this is only true at the level of Abstract Right and may not be the case in the more developed realms of human relations: morality and ethical life. Moreover, even at the level of Abstract Right, Hegel argues that it is incorrect to analyze our relations to objects that become part of a person's personality in terms of property. Those objects of personality which are necessary for recognizability (the logical goal of property) should be inalienable—that is, not fully subject to the property regime. To Hegel, Hohfeld's fourth category—rights over other persons—cannot be properly analyzed as property because persons are capable of subjectivity and, therefore, cannot rightfully be treated as the objects of property. Similarly, Hohfeld's fifth category—reputation—may or may not come within Hegel's category of objects which become so internalized as personality that they should be inalienable.

In any event, whatever its philosophical integrity, I think that the characterization of all of Hohfeld's examples of multital rights as property has little specific utility in a discussion of American law. Rather, I would argue that Hohfeld's very examples reveal the weakness of his decision to reject the object. He lumps together legal relations which are fundamentally diverse. It also explains why, despite Hohfeld's influence over legal scholarship, his "paucital-multital" terminology has never been adopted and sounds as awkward today as it no doubt sounded in 1918.

The first two examples Hohfeld gives fall under the generally understood rubric of property law. Both of these relate to objects—tangible and intangible. But the last three examples fall under the generally understood rubrics of tort and civil-rights law, although it is both evocative and con-

[162] Id . at 85.

sistent with my analysis that Hohfeld sees a man's claim to a woman's sexuality (his fourth example, which includes a father's interest in his daughter's virginity and a husband's in his wife's consortium) as indistinguishable from property. As we have seen, Vandevelde accepts Hohfeld's contention that there is no meaningful distinction at face value between property and other rights good against the world, and he concludes that property analysis has, therefore, lost its meaning. Grey also agrees with the Hohfeldian analysis and suggests that, accordingly, property will lose its inspirational role in political theory. Jennifer Nedelsky concludes from a Hohfeldian analysis that property is a myth that cannot fulfill its constitutional function of serving as the barrier between the private realm of individual freedom and oppression from the state.^[163] I would argue to the contrary. The fact that Hohfeld cannot distinguish between property and tort suggests more about the weakness of Hohfeld's analysis than it does about the incoherence of property.

Hohfeld asserts more than argues his conclusion that these traditionally disparate areas of law do not differ from each other. As an empirical matter, American legal discourse recognizes a distinction between property and tort. This distinction is so familiar as to seem natural to most Americans. Hohfeld may be correct that both property and tort differ from contract in that the former two are rights against the world and the latter consists of rights against an individual. It does not follow from this, however, that no relevant distinction exists between the concepts of property and tort. This may be true even if the empirical reality of legal practice in property and tort does not display the sharp lines of the theoretical, analytical distinctions, and even if certain rights are hybrids containing elements of both property and tort.^[164] Hohfeld at most points out a common element between property and tort, but two things that share a common element are not necessarily the same. In order to make a convincing case that it is not meaningful to distinguish between rights among persons with respect to an external object and other types of rights enforceable generally against the world, one must identify the perceived difference and the function it serves and then argue why this is misleading or useless.^[165]

For example, a significant jurisprudential question concerns whether

[163] Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy 9–10, 224–25, 239, 253–54 (1990).

[164] For example, wrongful interference with the property rights of another is the tort of conversion.

[165] Of course, at some level of generality, everything is the same, and at some level of specificity, no two things are the same. Legal argument consists in large part in establish-ing consensus as to the correct level of generality in specific situations: is this case distinguishable from another? If a distinction can be drawn, is it relevant, or is it a distinction that makes no difference?

Penner similarly takes Hohfeld to task for not thoroughly analyzing his categories. It was not sufficient to note, as Hohfeld did, that property rights are enforceable generally and contract specifically. To make this a meaningful analytical distinction, one needs to ask "why" some rights are generally enforceable and others specifically. Penner, like me, concludes that what those categories of rights which are traditionally called "property" have in common is that they concern a thing. Penner, supra note 6, at 727–30. Consequently, Penner believes that the bundle-of-sticks approach does not, in fact, get beyond the simplistic "person-thing" analysis. Id . at 733.

Hohfeld's third example of multital rights—one's rights vis-à-vis one's body—should be analyzed in terms of property law, tort law, or otherwise. Much of the Law and Economics analysis of tort law is an attempt to reconceptualize tort law in terms of property and contract doctrines. Those who take this point of view to its logical extreme, including Richard Posner, argue that because we have a property right in our bodies, we should be able to buy and sell our body and body parts, as well as our infants.^[166] On the other side of the political spectrum, Radin agrees that we have a property right in our bodies, but she comes to the opposite conclusion as to the permissibility of rights of market alienation.^[167] To Radin, although the body may be property, market alienability of female sexuality, in the form of either prostitution or surrogate motherhood, should be restricted as destructive of human flourishing. A neo-Hegelian might agree with Radin's policy recommendations on specific issues such as prostitution, but on the grounds that it is a category mistake to analyze body relations in terms of property relations.^[168]

4—
The Reinstatement of "Blackstonian" Property

Now it should be apparent why I said that the Grey-Vandevelde-Hohfeldian ostensible denial of traditional Blackstonian property is, in fact, a reinscription of it. Their "denial" of Blackstone is, in effect, a "super-Blackstonian" approach that insists more firmly on a physical, unitary concept of property than the historical Blackstone ever did.

[166] Richard A. Posner, Economic Analysis of Law 151–54 (4th ed. 1992); Richard A. Posner, Sex and Reason 409–17 (1992); Elizabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage , 7 J. Legal Stud. 323, 344 (1978).

[167] Margaret Jane Radin, Market-Inalienability , 100 Harv. L. Rev. 1849, 1921–36 (1987); Margaret Jane Radin, Reinterpreting Property, 40–43 (1993) [hereinafter Radin, Reinterpreting Property].

[168] Munzer comes to a similar conclusion. He believes that property necessarily includes alienability. Consequently, he argues that, although we may have some property rights in our bodies, it is misleading and confusing to analyze all body rights in terms of property. Munzer, supra note 60, at 37–58.

The Hohfeldian analysis of property does not, in fact, offer an alternate paradigm to the physicalist, phallic paradigm. It accepts the notion that the only possible definition of property is a unitary notion which privileges possession reduced to the sensuous grasping of physical things. Hohfeld, Grey, and Vandevelde believe that their analysis shows that the unitary, physical paradigm does not adequately describe actual jural relations. They observe anomalies that the paradigm does not explain.

As the theory of sophisticated falsifiability reminds us, we cannot as a psychological or logical matter reject a paradigm merely because we find that it is inconsistent with empirical observations. Rather, it remains as the paradigm until a new paradigm is developed. Vandevelde and Hohfeld are left with the existing paradigm in its purest form, without its protective belt, and argue that it is the only paradigm of property. They recognize that those relations we call property always include an expressly intersubjective element (i.e., alienation in the form of exchange) which cannot be comprehended by an impoverished conception of property as sensuous grasp. Because this paradigm does not accurately describe our empirical legal world, they conclude that no examples of property in fact exist. The definition of property remains, but examples of property form a null set. The old paradigm remains, but it is declared moribund.^[169]

Unfortunately for this approach, property as an economic and legal practice continues to flourish. Property concepts have not come crashing down in the face of this arid and acontextual legal argument. As J.E. Penner has so succinctly put it in a recent article, the dominant bundle-of-sticks paradigm championed by Grey "is really no explanatory model at all, but represents the absence of one."^[170] The Hohfeldian approach refuses to analyze contemporary property qua property on the grounds that property is dead as an analytical category. The marketplace, however, has proved indifferent to this development.

5—
The Supposed Disaggregation of Property in Constitutional and Private Law

In addition to their analytic argument as to why property should die, Grey and Vandevelde also make an empirical claim that property is in fact in the process of disintegrating. This is based in large part on a consideration of constitutional law

[169] Penner arrives at a very similar critique of Grey's theories. "In other words, the bundle of rights picture adopts a Classical view of the meaning of terms, and thus in light of the difficulty of generating a Classical definition holds that 'property' is somehow degenerate or useless." Penner, supra note 6, at 769.

[170] Id . at 714.

and, to a lesser extent, on the history of twentieth-century commercial-law reform.

a—
Physicality and the Federalists

In addition to Blackstone, Grey describes the Framers of the U.S. Constitution as holding the so-called traditionalist-lay conception of property as "thing ownership." This relates to Grey's implicit political agenda. He fears that oversolicitousness toward the Takings Clause of the Constitution may hinder progressive legislation. He hopes that, once the definition of property is shown to be meaningless or, at least, unworkable in our modern economy, even originalist Supreme Court Justices will have to adopt an alternate interpretation of the Fifth Amendment more amenable to liberal political goals.

Unfortunately, even a cursory analysis of the theories of the Framers suggests that the vision of property reflected in the language of the Constitution is far more sophisticated than the crude view attributed to them by Grey. Moreover, Grey's proposed disaggregated "bundle of sticks" concept of property, which covertly reinstates the phallic metaphor, actually could lead to a stricter, less progressive reading of the Constitution.

b—
The Objects of Property

In her illuminating book Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy ,^[171] Jennifer Nedelsky parses the writings of the Federalists in order to explicate their theory of property and the fundamental role it played in their notion of political freedom. She emphasizes, as Grey does, that for the most part, the Federalists thought the concept of property was so self-evident that it did not need defining.^[172] Nevertheless, the examples they used of the potential oppression of property rights by an unjust political system provide strong evidence that their concept of property was not limited to the physical thing–sensuous grasping model Grey posits. They spoke of property rights not only in connection with land and the means of production—stock-in-trade, manufacturing plants, and so on—as one would expect in a thing-holding regime. They also spoke of property in moneylending and investment.^[173] They were not only concerned with the state's wresting of physical things from their owners' grasp. They were also concerned with more subtle "takings" that destroyed the value of intangible property such as inflationary monetary policies, the

[171] Nedelsky, supra note 163.

[172] See, e.g., id . at 36–37.

[173] See, e.g., id . at 30.

printing of paper money, and bankruptcy legislation.^[174] That is, they feared government interference with the rights of enjoyment and alienation as well as possession.

My colleague, John O. McGinnis, who explores the natural-law aspects of the Framers' political theory, goes even further.^[175] According to McGinnis, both the Federalists and the anti-Federalists recognized property as the natural right of man.^[176] Related to this is the fact that other essential rights necessary for human liberty were justified precisely because they were forms of property rights. For example, James Madison argued for the freedoms of speech and religion on the express ground that each man has a natural property in "his opinions and the free communication of them" and in "the free use of his faculties and free choice of the objects on which to employ them."^[177]

In other words, although the Framers of the Constitution were not Hegelians, their writings clearly reflect the Western philosophical tradition which does not limit the potential objects of property to physical objects or property relations to the satisfaction of physical, or real, needs. Rather, the objects of property include everything other than the self. In the words of John Lilly, an eighteenth-century popularizer of Locke, "Every Man . . . hath a Property and Right which the Law allows him to defend his Life, Liberty, and Estate. . . ."^[178] And property relations are necessary in order for humans to constitute themselves as subjects who can seek to actualize their freedom. In other words, property relates to all that is proper to mankind.^[179]

c—
Conceptual Severance, or "Rights Chopping."

The problem that Grey and Vandevelde may really see is not that the disaggregation of property is

[174] See, e.g., id . at 71–75.

[175] See John O. McGinnis, The Partial Republican , 35 Wm. & Mary L. Rev. 1751 (1994) (reviewing Cass Sunstein, The Partial Constitution (1993)).

[176] Id . at 1758–66.

[177] Id . at 1760 (quoting Madison). Munzer asserts that "virtually no one thinks of free speech as a property right." Munzer, supra note 60, at 46 (citing Wesley J. Liebeler as an exception to this general rule). Although this is no doubt empirically correct today, it may not have been true in the past.

For a further discussion of the broad way in which property rights were conceived in the eighteenth century, see MacPherson, supra note 33, at 7–8.

[178] Aylmer, supra note 32, at 95 (quoting John Lilly, The Practical Register; or, A General Abridgement of the Law (London, Eliz. Nutt & R. Gosling for T. Ward 1719)).

[179] This is reflected in the etymology of the English word "property," which derives from the Latin proprius , which means "proper," or "peculiar to a person or thing." 12 The Oxford English Dictionary 639 (2d ed. 1989); D.P. Simpson, Cassell's New Latin Dictionary 482 (1968).

killing property but that it is giving property new life. Disaggregated property, like the dismembered god Osiris, threatens to fill the world with its power.

As other left-leaning critics have lamented, the trend under the Rehnquist Court has not been toward the withering or even the diminution of the traditional view of property—the exclusive rights to possess, enjoy, and alienate objects—but toward its strengthening .^[180] Moreover, this trend has been abetted, not hindered, by the disaggregation of property.

Margaret Radin has identified a tendency of certain Justices to find that any governmental interference with any one of the many disaggregated rights associated with property may be a "taking."^[181] This approach, which Radin critiques under the awkward name "conceptual severance,"^[182]

consists of delineating a property interest consisting of just what the government action has removed from the owner, and then asserting that that particular whole thing has been permanently taken. Thus, this strategy hypothetically or conceptually "severs" from the whole bundle of rights just those strands that are interfered with by the regulation, and then hypothetically or conceptually construes those strands in the aggregate as a separate whole thing.^[183]

Believing that short and common Anglo-Saxon words are better than complicated heptasyllabic, Latinate neologisms, I accept a suggestion made by Frank Michelman and call this process "rights chopping."^[184] Radin condemns this approach as incorporating a conservative political and jurisprudential philosophy.^[185] It puts governmental regulation she deems progressive at risk of being invalidated as unconstitutional under the Takings Clause—precisely the harm which Grey wished to avoid.^[186] If one recognizes for constitutional-law purposes that property consists of a bun-

[180] Radin, Reinterpreting Property, supra note 167, at 123–35.

[181] The cases Radin particularly discusses are Loretto v. Teleprompter Manhattan CATV, 458 U.S. 419 (1982); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987); and First English Evangelical Lutheran Church v. County of L.A., 482 U.S. 304 (1987). Id . at 123–30.

[182] Id . at 127. To be slightly more accurate, Radin does not maintain that Chief Justice Rehnquist has been caught embracing conceptual severance but that he flirts with it in some of his opinions.

[183] Id . at 127–28.

[184] Actually, Michelman calls it "entitlement chopping." Frank Michelman, Takings 1987, 99 Colum. L. Rev. 1600, 1601 (1988). But as long as I'm wielding the phallic axe, I'll cut the four-syllable word "entitlement" down to size as well.

[185] Radin, Reinterpreting Property, supra note 167, at 126–30.

[186] Id . at 176–78.

dle of severable sticks, it is "an easy slippery slope" to the conclusion that "every regulation of any portion of an owner's 'bundle of sticks' is a taking of the whole of that particular portion considered separately."^[187]

Implicitly, she criticizes the Court precisely for adopting a bundle-of-sticks analysis in lieu of a unitary notion of property.^[188] In other words, Grey argues that Hohfeld's revelation that property rights are severable and indistinguishable from other legal rights meant that property does not exist. If property is everything, then property is nothing. Radin shows how a libertarian can come to the opposite conclusion. Consequently, as I shall discuss in chapter 3, she rejects the Hohfeldian intersubjective account of property in favor of a radically objective account. I shall return to, and partially defend, rights chopping as inevitable from both an empirical and logical standpoint in chapter 4.

d—
Property as the Public-Private Distinction

Grey and other property critics may feel the need to adopt such sharp, either-or, clear, visible, and absolute distinctions between property and nonproperty because they analyze property primarily for the instrumental purposes of public law. It is traditional in legal political and jurisprudential theory to view property as one of the barriers between the individual and the state. In chapter 4, I will argue that the necessity of rights chopping means that it is logically impossible for the institution of property to serve the barrier function assigned to it by the Founders. Nevertheless, the fact that property cannot serve this political function carries no necessary implication for the continued validity of property notions generally.

Most property relations, however, take place in the context of so-called private law—commercial and real-property transactions between legal actors. In the fluid and intersubjective world of the market, fluid and intersubjective notions of property arguably function more, not less, adequately than rigid and absolutist notions. That is probably why they have developed. Thus, one of the problems with contemporary property scholarship may be precisely that we still try to use one concept—property—for at least two very different functions: first, to allow legal actors to re-

[187] Id . at 129.

[188] To date, Radin argues, this risk is more potential than actual. This is because the Court has concentrated primarily on the "exclusive occupation" element of property. Id . at 130. She believes, however, that the Court has been moving closer toward the constitutionalization of what she sees as the full, traditional liberal trinity of possession, use, and alienation. It is the constitutionalization of commercial enjoyment and alienation that could have a devastating effect on regulation. Id . at 136–37.

late with each other as subjects in the marketplace, and second, to serve as the line between the public and the private. Whether or not property ever successfully fulfilled this dual function in the past, it may no longer be able to do so if the market moment of property requires fluidity and the political moment of property requires rigidity.

In arguing that property law never could bear the full weight of serving as the constitutional public-private boundary between citizen and state, Grey makes another brief, but clever, argument. Grey tries to claim that property died for commercial law purposes and, therefore, is doubly dead for constitutional-law purposes. Property's murder in private law was supposedly the work of the legal realists.

In the next section I shall show that Grey's claim that the legal realists' "bundle of sticks" imagery challenges the phallic metaphor of property as thing ownership is simply incorrect. In fact, the greatest monument to legal realism, the Uniform Commercial Code, adopts an ultraphysicalist, phallic, unitary paradigm of property that out-Blackstones Blackstone.

B—
Musings on the Myth That the Uniform Commercial Code Disaggregated and Killed Property

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.

2—
Practical Men and Their Tangible Things

The purpose is to avoid making practical issues between practical men turn upon the location of an intangible something, the passing of which no man can prove by evidence and to substitute for such abstractions proof of words and actions of a tangible character.^[192]

A revisionist view of this history is both less and potentially more earthshaking than the bundle-of-sticks myth. The U.C.C. neither abandoned nor disaggregated property. The U.C.C.'s drafters did

[191] Karl Llewellyn, Chief Reporter of the U.C.C., called "Title" a "mystical something." Karl N. Llewellyn, Cases and Materials on the Law of Sales 561 (1930) [hereinafter Llewellyn, Sales].

[192] U.C.C. § 2-101 cmt. (1962). This comment, probably penned by Llewellyn, bears a family relationship to his scholarly writings:

They want law to deal, they themselves want to deal, with things, with people, with tangibles, with definite tangibles, and observable relations between definite tangibles—not with words alone; when law deals with words, they want the words to represent tangibles which can be got at beneath the words, and observable relations between those tangibles.

Karl N. Llewellyn, Some Realism About Legal Realism—Responding to Dean Pound , 44 Harv.

L. Rev. 1222, 1223 (1931) [hereinafter Llewellyn, Realism ].

try to deny title or wish it away, but they also enacted a property concept containing a unity of certain minimal rights. Moreover, and most significantly for the present purposes, the drafters did not even try to replace the common-law phallic paradigm, which identified property with sensuous grasping of physical things. They embraced it wholeheartedly. The U.C.C. represses title, and what is repressed in the symbolic always returns in the real.

As the quotation at the head of this section indicates, the legal realists rejected the common-law terminology of "Title" not because it was unitary or objective but precisely because it was insufficiently tangible . These self-proclaimed "practical men" found elusive, feminine intangibility to be seductive, but also dangerous because elusive. Intangibility is metaphysical and flaccid. They longed for that determinate masculine firmness which is so hard to achieve and so easy to lose.^[193] They demanded that not only goods but also acts and words must become tangible. In the legal imaginary of the U.C.C., not only property but the entire symbolic realm of law must be collapsed into the real. Like Odysseus, the drafters heard the Sirens' song, but in order to prevent their own destruction, they bound themselves to the mast of tangibility—binding themselves like a bundle of sticks, turning themselves into fasces. The realists turn out to have been "real-ists."

Thus, on the one hand, my analysis suggests that, rather than a radical escape from the past, the U.C.C. can be seen as a reactionary embrace of its most simplistic, physicalist aspects. As in public law, the adoption of the bundle-of-sticks metaphor in private law is not a challenge to, but a strengthening of, the masculine phallic property paradigm.

3—
Article 2 as Text

a—
Evidence for the Disaggregation of Property

To determine whether either the U.C.C. or contemporary commercial legal practice actually adopts such a disaggregated concept of property, we must look at the

[193] Llewellyn called "Title" in chattel "mythical" or "mystical" and complained that itcannot be seen—unlike title in real property, which can be seen in the form of a chain of recording documents. See Karl N. Llewellyn, Through Title to Contract and a Bit Beyond , 15 N.Y.U.L.Q. Rev. 159, 165 (1939) [hereinafter Llewellyn, Through Title to Contract ]. He called for a "firm, objective basis for allocating title." Id . at 166.

language of the U.C.C. itself. The strongest argument for the supposed rejection of title is contained in the opening sentence of U.C.C. § 2-401:

Each provision of this Article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title.

This ostensible denial of title and freedom of contract also seems to be reflected in the first subsection of U.C.C. § 2-401, which reads in relevant part:

Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest.^[194]

One might also find evidence of the rejection of traditional notions of "Title" and the disaggregation of property in several of the substantive provisions of Article 2. Consistent with the language of U.C.C. § 2-401, the location of title is irrelevant to the risk-of-loss rules of U.C.C. §§ 2-509 and 2-510 and the good-faith-purchaser rules of U.C.C. § 2-403.

And yet the rest of Part 4 of Article 2, including U.C.C. § 2-401, consists of conveyancing rules which govern when title passes, and when title is "good" or "voidable." Indeed, U.C.C. § 2-106(1) defines "sale"—the very subject matter of Article 2—as "the passing of title from the seller to the buyer for a price" even as it cross-references U.C.C. § 2-401—the U.C.C.'s famous denial of title.

What is going on here? Is property a secret mistress which commercial law publicly repudiates, yet privately embraces?

[194] This corresponds to U.C.C. § 9-202, which states that "[e]ach provision of [Article 9] with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debtor." Further, U.C.C. § 9-201(37) provides in relevant part that

"[s]ecurity interest" means an interest in personal property or fixtures which secures payment or performance of an obligation. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (Section 2-401) is limited in effect to a reservation of a "security interest."

b—
Article 2's Clandestine Affair with Title

A legal-realist statute is supposed to reflect actual practices rather than legal abstractions. The institution of private property is the sun about which our capitalistic solar system revolves. It would be shocking indeed if the primary legal-realist artifact—the Uniform Commercial Code—denied property on the grounds of any supposed theoretical incoherence.

Just as bumblebees continue to fly in derogation of aerodynamic theory,^[195] the continued viability of private property is strong evidence that the so-called Hohfeldian attempt to describe property was not a successful new "revolutionary" paradigm of property but merely another failed attempt to add auxiliaries to the existing degenerating paradigm. Or more accurately, truth is, if not stranger, then more complex, than fiction.

Llewellyn and his fellow code drafters were tremendously influenced by Hohfeld's work. But the myth of the death of property fails to reflect that Hohfeld's project had two distinct and separable parts which I discussed in the immediately preceding section of this chapter. Llewellyn and the realists adopted the better-known part of Hohfeld's project: his taxonomy of jural conceptions or lowest common denominators of legal rights. However, Llewellyn expressly rejected his other part discussed at length in that section: the definition of property without an object. The U.C.C. reflects the traditional "Blackstonian" conceptualization of property as a legal relation among subjects with respect to objects.

First and foremost, U.C.C. Article 2, which governs sales of goods, cannot reject property because the very nature of a sale presupposes property rights in a good. Nor can it reject the traditional concept of property as rights with respect to an object because sales transactions, by definition, involve a specific class of objects known as "goods." The conveyance of property in specified goods is the raison d'être of sales. A sales transaction is based on the proposition that the seller has some valuable rights in an identifiable good which can be conveyed to a buyer. Unless the prior claimant (i.e., the seller) has an enforceable right of possession (i.e., exclusion) in the good, the subsequent claimant (i.e., the buyer) does not have to buy the good; she could just try to take it. Moreover, a buyer will have little reason to give value to buy a good unless she can be assured that she will obtain security of possession. To induce a buyer to pay for a good, she must obtain the right of enjoyment—i.e., the right to consume, collect, or otherwise use the good.^[196] Finally, it is obvious

[195] Apparently, aerodynamics has finally capitulated to the bees. Warren E. Leary, Aerodynamic Secrets of Insect Flight , N.Y. Times, Dec. 24, 1996, at C1.

that unless the seller has the power of alienation, the sale cannot occur.^[197]

4—
The Wit and Wisdom of Karl Llewellyn

Despite this, some of Llewellyn's most stinging vituperatives are launched at title concepts in sales law. Sometimes he railed against "the property"—the British equivalent of the American term "title." He described the drafters of Article 2 (of which he was the most prominent) as having "deemed it imperative to abandon title as the focal point of a sales contract. . . . "^[198] But by attacking "title" Llewellyn was not attempting to attack or disaggregate "property" per se. And the fact that Llewellyn referred to that package of "Hohfeldian desirabilities [which] we know together as 'property in specific goods'" does not imply that he believed that property was a random bundle of Hohfeldian sticks. Rather, Llewellyn was trying to rescue property from distortions caused by a specific common-law doctrine known as "Title." For clarity, I shall capitalize the word "Title" when referring to the grandiose common-law sense, to distinguish it from the more modest or "cheerful" use adopted in the U.C.C. In addition, Llewellyn intuitively understood the necessity of distinguishing between the elements of possession (identification of object to subject) and exchange (conveyance).

Llewellyn had two closely related critiques of the common law of "Title." First, by analyzing substantially all sales issues through the loca-

[196] This is the case even when the buyer is herself a merchant who does not intend personally to enjoy the good. The exchange value of a good is dependent on obtaining the ability to convey the right of enjoyment to a theoretical ultimate buyer who will purchase the good for its use value.

[197] I am using Hohfeldian terminology. Although the seller must have some power of alienation, a right of alienation is not necessary. For example, U.C.C. § 2-403(2) provides that certain entrustees have the power to sell a good to a buyer in the ordinary course of business even when they do not have such a right. In this book, unless I indicate otherwise, I use the word "right" in the more general sense which can include any and all of the Hohfeldian desirabilities, rather than in the specific Hohfeldian jural correlative which he called a "right" (as opposed to a power, privilege, etc.).

Less obvious, although a right of further alienation in the buyer may not be minimally necessary for a sale to occur, it does encourage sales in that it preserves the exchange value in the hands of the buyer.

[198] Karl N. Llewellyn, Why a Commercial Code? 22 Tenn. L. Rev. 779, 786–87 (1953) [hereinafter Llewellyn, Why a Commercial Code? ]. Accordingly, in an early broadside published in the Harvard Law Review , Samuel Williston declared that

the Code's departure from the long-established tests for determining title and the consequences of title or lack of it . . . [is] the most objectionable and irreparable feature of the part of the Code relating to sales.

Williston, supra note 190, at 570–71.

tion of "Title," the common law had inappropriately allowed contract to be subsumed into property. Second, "Title" analysis reflected an obsolete paradigm of the sales transaction—a premodern agricultural model of a sale as an event , as opposed to a modern mercantile model of a sale as a process . Llewellyn also had a third, implicit, critique of the common law. He thought that "Title" was too obviously symbolic, and not sufficiently physical or real.

a—
Differentiating Property from Contract

In Llewellyn's words, "Title-thinking [is] Sales law viewed as property law. . . . "^[199] In contradistinction, he characterized his analytical approach as being rooted "in the proposition that the modern law of Sale is a law of contract for future delivery; that the present sale plays little part today in litigation; and that most problems commonly dealt with under the heading of 'title' are obscured rather than clarified by that dealing."^[200]

In other words, although sales, by definition, involve the conveyance of property, modern mercantile transactions cannot be reduced to conveyancing. There are aspects of sales relations which are purely contractual in nature—such as terms relating to production specifications, requirements, warranties, credit, transportation, storage, and so on. They should, therefore, be left to the general principle of freedom of contract.

Unfortunately, according to Llewellyn, the common law tended to assume that all legal issues relating to sales were property issues and that all property rights could be reduced to possession. This is why he entitled one of his critiques Through Title to Contract and a Bit Beyond and began it with the reminder that "[t]he law of Sales, as is well known, is in one

[199] Llewellyn, Through Title to Contract, supra note 193, at 191.

[T]he property concept is repeatedly used by courts as a device to settle various issues which in themselves are contract and not "property" issues: i.e ., they are matters which the parties have power to arrange at will by express contractual clauses, if they want to, and think about it.

Llewellyn, Sales, supra note 191, at 64.

Llewellyn first developed his critique of the common law in terms of a conflation of the concept of the sale (i.e., the conveyancing of a property interest in a good) and the contract for future sale in his great casebook on sales. Id . at xii-xiv. Hegel also makes a distinction between an executory contract and the performance of the contract and compares it to the parallel distinction between property and the possession. In both dyads, the former is potentiality and the latter is its actualization. Hegel, The Philosophy of Right, supra note 23, at 108.

[200] Llewellyn, Sales, supra note 191, at xiv.

phase part of the law of contract, in another phase part of the law of property."^[201] The common law of sales repressed contract and subordinated the contract aspects of sales to the property aspect.^[202]

The approach of prevailing Sales doctrine . . . is this: Unless cogent reason be shown to the contrary, the location of Title will govern every point which it can be made to govern.^[203]

In other words, Llewellyn denied neither the coherence or unity of the concept of property, generally, nor the property aspects of sales, specifically. But he condemned common-law property analysis for making the grave category mistake of trying to analyze contract issues in terms of property principles. He hoped that he could avoid this error by concentrating on the contract aspects of sales and deemphasizing the property aspects and by developing new language for the analysis of sales.^[204]

[201] Llewellyn, Through Title to Contract, supra note 193, at 159.

[202] Perhaps out of pure inertia, perhaps because one of the traditionally central problems of the field is whether a given agreement operates at the very instant of its making as a transfer, nobody has yet tried very hard to take the Contract parts of the "field" out of Sales, and to locate them over in Contracts.

Karl N. Llewellyn, Across Sales on Horseback , 52 Harv. L. Rev. 725, 728 (1939) [hereinafter Llewellyn, Across Sales on Horseback ].

Oddly enough, Llewellyn argued against moving contract law out of sales entirely so that the contract of sales would be analyzed under the general law of contract. He thought it was analytically necessary for there to be a separate law of sales, but wanted the contract aspects of the law of sales to be analyzed in terms of contract concepts rather than property concepts. This concern with identifying separate identifiable "fields" of law seems strangely archaic today. Nevertheless, it is reflected in Article 2 of the U.C.C., which governs contracts only insofar as they relate to the sales of goods.

[203] Llewellyn, Through Title to Contract, supra note 193, at 169.

[204] Llewellyn hoped to encourage a latent, but faltering, trend in early-twentieth-century judicial reasoning. Llewellyn acknowledges that new sales concepts were emerging in his day but thought that "the process is as groping and uncertain as it is stubborn; and . . . is often obscured, still more often hindered or twisted, by the traditional language used in discussing the situations." Llewellyn, Sales, supra note 191, at 562. This is related to Llewellyn's second critique of the obsolete imagery reflected in the common law.

To get along without the title concept, to get along without learning to use it, reason with it, argue from it, is impossible. But to accept it blindly as the basis of all sales discussion . . . is to lose perspective on modern developments, to cripple one's drafting technique and to load one's self up with a baggage of useless confusion. The courts have spent a century struggling through to recognition of issue after issue as severable from title. Surely the student should start with such clarity as is available today; not shackle his thinking with the very over-generalization from which the law is working free.

Id . at xiv-xv.

b—
The Common-Law Sales Paradigm.

(1) Horsing Around with Karl

Anyway . . . after much screaming and yelling and horsing around, . . . we had a Uniform Revised Sales Act.^[205]

Llewellyn's other related critique of the common law of sales was that it did not and could not deal with modern commercial transactions because its underlying imagery was obsolete. According to Llewellyn, the legal analyst is informed by "his problems, his illustrations, the tacit and often unconscious fact-pictures against which he tests the meaning and bearing of words, the whole stock of implicit orientations to solution which are the life of active work with law. . . ."^[206] For there to be a significant change in the law it is necessary for "the facts and their connotations of practice, need and context [to be] effectively iterative, cumulated without interruption, . . . so clustered as to become moderately familiar to the run of relevant lawyers."^[207] This is because "[o]ur fields of law, our patterns of legal thinking, our legal concepts, have grown up each one around some 'type' of occurrence or transaction, felt as a typical something, seen in due course as a legally significant type, and, as a type-picture, made a standard and a norm for judging."^[208]

To translate Llewellyn's point into Kuhnian-Lakotosian language, Llewellyn thought that law is governed by specific, implicit images of the typical transaction which are shared by the legal community—a paradigm.^[209] Under the theory of sophisticated falsification as developed by Imre Lakatos,^[210] paradigm shifts do not occur merely because the community observes inconsistent empirical evidence which falsifies the original hypothesis. Rather, the community formulates an "auxiliary" hy-

[205] So Soia Mentschikoff described the process of drafting the U.C.C. under the supervision of her husband, Karl Llewellyn. Soia Mentschikoff, Reflections of a Drafter , 43 Ohio St. L.J 537, 538 (1982). Apparently, equine metaphors were popular in the Mentschikoff-Llewellyn household. She uses this expression at least three times in her short reminiscence.

[206] Karl N. Llewellyn, The First Struggle to Unhorse Sales , 52 Harv. L. Rev. 873, 874 (1939) [hereinafter Llewellyn, The Struggle to Unhorse Sales ].

[207] Id . at 875.

[208] Id . at 880.

[209] Needless to say, Llewellyn was writing more than thirty years prior to the publication of Kuhn's seminal work and could not have been influenced by Kuhn's theory. Nevertheless, I believe one can find certain similarities between Llewellyn's and Kuhn's ideas.

[210] Lakatos preferred the more modest "research programme" to Kuhn's "paradigm." Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in Criticismand the Growth of Knowledge 91 (Imre Lakatos & Alan Musgrave eds., 1970). See Jeanne L. Schroeder, Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination , 70 Tex. L. Rev. 109, 168–71 (1991) [hereinafter Schroeder, Abduction from the Seraglio].

pothesis to explain away the apparent anomaly. Paradigms eventually degenerate when they become so encrusted with "protective belts" of auxiliaries that they begin to explain less and less as more and more empirical evidence is explained away as exceptions which prove the rule. Although degenerative paradigms are ripe to be overthrown, this cannot occur until a revolutionary paradigm is devised.

Llewellyn posits that significant changes in the law only occur when a new image (paradigm) of the typical transaction becomes dominant in the profession. The early-twentieth-century paradigm of sales was what Llewellyn called a "farmer's transaction."^[211]

In the traditional agrarian economy, an individual seller sells a readily identifiable and unique good to an individual buyer whom he already knows, in an isolated face-to-face cash transaction, probably for the buyer's personal consumption or use.^[212] The quintessential "good" in this picture was a horse.^[213]

In this archetypical sale of a horse between farmers, property rules are very simple.^[214] Old MacDonald and Mr. Greenjeans know each other and have a basis to make a judgment on their relative honesty and creditworthiness. MacDonald shows Dobbin to Greenjeans. Greenjeans has ample opportunity to look the horse in the mouth at the MacDonald farm or at a public market established for this purpose and, therefore, has no need for MacDonald to warrant Dobbin's qualities. If Greenjeans decides to buy Dobbin, he will hand cash to MacDonald. MacDonald will take the cash and hand the reins over to Greenjeans, who will then ride Dobbin home. The contract and the conveyance happen simultaneously. The time of the sale and the time of the passing of "Title" are clear. MacDonald had all rights in Dobbin until Greenjeans paid the purchase price, and

[211] So also of the peculiar problems of case-law in remodelling its concepts and its rules; for by what is an extraordinary series of accidents this branch of our mercantile law took off with farmer's eyes and farmer's tools; and though it has shown something of a farmer's handiness in effective tinkering (albeit with poor equipment) it retains to this day the old-time farmer's unreadiness to follow a leader in his theory as distinct from his practice.

Llewellyn, Across Sales on Horseback, supra note 202, at 727.

[212] "The picture begins in terms of a community whose trade is only one step removed from barter. . . . " Llewellyn, Sales, supra note 191, at 204.

[213] Hence the punning names of two of Llewellyn's articles—Across Sales on Horseback, supra note 202, and The Struggle to Unhorse Sales, supra note 206.

[214] Llewellyn, The Struggle to Unhorse Sales, supra note 206, at 881–82.

Greenjeans had all rights thereafter. Risk of casualty loss was also perfectly correlated with the sale and therefore seemed to be a function of "Title." If Dobbin was killed in a barn burning the night before the sale, that was MacDonald's problem. If Dobbin fell and broke his leg when Greenjeans rode him home, it was Greenjeans's loss. In the life of a farmer, a sale is an event.^[215]

The agricultural imagery of "Title" analysis reflects the solid physical metaphor which imagines that archetypical property relationship is possession reduced to the sensuous grasp of a solid, physical thing. The correlative imagery of a conveyance or transfer of property is the handing over of a solid object from one person to another, such as the passing of a baton from runner to runner in a relay race or the passing of the reins of a horse from farmer to farmer. Such a transfer of a solid thing takes place instantaneously. Accordingly, this imagery reflects the longing for the real. The real is the collapse of all castrating distinctions of time and space into an ideal, immediate uterine unity. The real is, therefore, an event, not a process.

Although this imagery conflates the property right in the thing with the thing-in-itself, this theoretical confusion arguably causes few practical problems in an agricultural economy where most property transactions in fact concerned tangible objects such as horses, when all property interests in the object tended to reside in the person who had actual physical custody of the object, and where conveyances of property tended to be accomplished through transfer of physical custody of the tangible objects.

This premodern agricultural imagery is poorly suited to the commercial reality of twentieth-century mercantilism.^[216] Llewellyn was not im-

[215] This imagery also determined the common law of warranty. In the farmer's transaction, not only do the buyer and seller know each other, the buyer had the chance to inspect a preexisting good before the sale. In such a world, warranties have little place. See, e.g ., Llewellyn, Sales, supra note 191, at 204.

[C]ontract, payment, and delivery will be as close to simultaneous as man can make them. And [the Buyer] can then walk away with the chattel—it is his—title has leaped into him. No one saw it leap; but that occasions no confusion. Bargain, payment and delivery have occurred; the deal was single; and it is unambiguously closed.

Id . at 561.

[216] And until merchant-to-merchant sales of wares are seen as the focus of a particular body of law (which they already largely are, in fact and in the decisions ) we go on lacking clear, neat doctrine to distinguish from them, where needed, sales by nonmerchants, or to distinguish, where needed, sales to nonmerchants (the ultimate consumer) from both.

Llewellyn, The Struggle to Unhorse Sales, supra note 206, at 879.

Llewellyn might be seen as trying to complete a development in commercial law which began in the previous century. As explained by Richard Sauer in an elegant article, the controversy concerning adoption of the Bankruptcy Act of 1898 can be seen as a struggle between a traditional agrarian model of commercial relationships—which still characterized the economy of the South—and a "modern" mercantile model—which increasingly characterized the economy of the North. Richard C. Sauer, Bankruptcy Law and the Maturing of American Capitalism , 55 Ohio St. L.J. 291 (1994). Sauer's description of the agrarian economic paradigm is strikingly similar to Llewellyn's.

Farmers have historically regarded property as something tangible to be physically held and used—primarily land and its products—its value deriving from its utility in possession. Naturally, some portion of the farmer's product will be taken to market and become temporarily property in exchange. But this process was seen as little different than straightforward barter between producers, closely circumscribed in time. . . .

To the commercial classes, on the other hand, tangible assets exist for the very purpose of exchange.

Id . at 304–05.

plying that the common law was totally blind to the mercantile nature of many sales.^[217] His point was that the common law continued to treat the agricultural transaction as the norm upon which exceptional mercantile rules were layered—that is, a protective belt of auxiliary merchant rules was added to the basic agricultural paradigm.^[218] In Llewellyn's metaphoric words:

[217] Llewellyn briefly traces the development of mercantile law starting from Coke. His point is not that these great judges were unable to develop rules which addressed the unique needs of mercantile transactions, but that they developed them as exceptions to or special circumstances of a law designed for agricultural transactions. Llewellyn, Across Sales on Horseback, supra note 202, at 732–46.

[218] Since at least the eighteenth century, smart judges would occasionally arrive at decisions which were better adapted to mercantile practice. Yet, because the underlying agricultural paradigm remained in place, these decisions were interpreted as exceptions to the general rule unique to specific and unusual fact situations rather than broadly applicable precedent. Llewellyn, The Struggle to Unhorse Sales, supra note 206, at 876.

The half-analysis made, painful to make, more painful still to carry forward, loses impetus. The courts lapse back into the farmer's simple concept; not every court, but too many courts; not every time, but too many times. The thread of the growth is broken. The job of making merchants' law fit merchants' work must be re-begun.

Id . at 894.

Unless the stock intellectual equipment is apt, it takes extra art or intuition to get proper results with it. Whereas if the stock intellectual equipment is apt, it takes extra ineptitude to get sad results with it. And the work of the artist, accomplished with poor intellectual equipment, is not clearly intelligible to the inept reader. . . . [I]t does not help him focus issues.

Id . at 876. If the basic paradigm is inapt, good opinions are seen as uncharacteristic and not controlling. "They do not cumulate into stock equipment . . . . The getting of such stock equipment is a struggle." Id .

The mercantile rules of law—and they are solid—which I have been describing make their way through this like ivy through a wall, live, growing, spreading, finding cranny after cranny. But the wall is still there, it is still in the way.^[219]

(2)—
The Process of Mercantile Sales

The agricultural imagery sees sale as an event—a single, definitive, unique moment of time at which all aspects of the transfer of "Title" occur. In contradistinction, mercantile imagery sees sale as the process by which ownership rights are conveyed and other legal rights and obligations are created.^[220] It concentrates on exchange—the process by which possession changes. Unlike an event, which occurs instantaneously and, therefore, "in no time at all," a process takes place in time. The legal issues which arise during a mercantile sale involve how this process works over time. The agricultural paradigm is inadequate precisely because it does not include a concept of time.^[221] The agricultural paradigm is real, but legal relations are symbolic.

[219] Llewellyn, Across Sales on Horseback, supra note 202, at 736.

[220] [In] a credit and industrial economy [o]verseas trade in seaports introduces cargolot dealing, and dealing in goods at a distance, before they can be seen. Markets widen with improved transportation—internal water ways, railroads. This means reliance on distant sellers. Middlemen's dealings mean, sometimes, the postponement of inspection; always they mean some ignorance in the seller of the history of the goods. Industrialization grows out of and produces standardization, grading and sizing of lumber, grading and branding of flour or hardware, a certain predictability and reliability of goods. Contracts made by description, or by sample, which is a form of description, or by specification, which is an elaborate description, become the order of the day. Contracts come increasingly to precede production. Sellers begin to build for good will, in wide markets, to feel their standing behind goods to be no hardship, no outrage, no threat to their solvency from a thousand lurking claims, but the mark of business respectability and the road to future profit. The law of seller's obligation must change, to suit.

Llewellyn, Sales, supra note 191, at 204:

Elsewhere, Llewellyn illustrates this in detail by following the history of the institution of "factoring" in sales practice and the struggle of sales law to adapt to it. Llewellyn, The Struggle to Unhorse Sales, supra note 206, at 883–94. Llewellyn's specific examples are now perhaps only of historic interest since sales practice (and, in large part due to Llewellyn, law) has changed considerably in the last fifty-eight years.

[221] Our concern is to observe that we have here complex structures of certain part-way stages occurring so frequently between the time when property was just "in the seller" and the time when property is finally just "in the buyer" that we have special and complex rules about the part-way stages as such. Evidently this "passing " process can be quite a process. Evidently it is not always a matter of one terrific stroke of the hydraulic press of law: here a fine sheet of steel, "property in the seller"; the Law plunges, rises; lo, a car-body, "property in the buyer"—take it away.Llewellyn, Across Sales on Horseback, supra note 202, at 730–31.

This does not mean property or "Title" analysis is always useless in mercantile paradigm.^[222] One can successfully use a paradigm which lacks an account of time to analyze those static legal issues which do not take place over time. But applying common-law "Title" analysis to the property issues which arise during a sale begs the question by assuming that the ongoing process to be analyzed—the passing of property—has already been completed: title has passed. A sale is the temporary disruption of "Title."^[223]

The precise situation to which "the property" is the key is not suited to the situation of commerce-in-action, the situation in which "the property" is not static but in motion, not in one fist, but in the spread interlocked fingers of at least two different hands; not lumped and obvious with its history a firm key to its location, but scattered and divided, with its history showing only where it is not to be at the end.^[224]

To give an analogy, suppose I, who live in New York City, wished to visit my in-laws in Irvine, California. Until we invent a teletransporter like the one in Star Trek , this trip will not be an event but a process that can take hours or even days, depending on the mode of transportation. If we were to analyze my trip in terms of "Title" concepts which analyze changes as instantaneous events, we would declare that I was either "in New York" or "in California" when certain conditions were met. If, for example, this were analogized as an FOB point of shipment contract, then I would "leave" New York, and "arrive" in California, when I had hailed the cab to the airport. This proposition is so intuitively ludicrous that it is virtually incomprehensible. Obviously, during the trip one can speak meaningfully of my speed, my direction, my estimated time of arrival, and my relative position with respect to my home and my destination. But it is nonsense to say that I am at either location during my journey. Nevertheless, it does roughly describe the problems with the law of "Title" in

[222] "Title" analysis is perfectly appropriate and useful to a wide variety of issues such as "when (a) there is no question who has the property in the chattels, and when (b) the absence of doubt lies between the obvious man who is concerned and his neighbor who is obviously not." Id . at 731.

[223] Now this [i.e., title analysis] would be an advisable way to go at it if the Title concept (or other basic integrated concept used) had been tailored to fit the normal course of a going or suspended situation during its flux or suspension . But Title was not thus conceived, nor has its environment of buyers and sellers had material effect upon it. It remains, in the Sales field, an alien lump, undigested. It even interferes with the digestive process.

Llewellyn, Through Title to Contract, supra note 193, at 169.

[224] Llewellyn, Across Sales on Horseback, supra note 202, at 732.

the sense of an instantaneous moment in which all rights in property are deemed transferred.

Notice that the obverse side of this is that before and after my journey it is meaningful for me to speak of being in New York or in California. And so, before and after a sales transaction it remains meaningful to speak of one party or another as having "title" in (i.e., in the sense of ownership of) the good. As I shall discuss in the last chapter of this book, in the context of the Takings Clause of the U.S. Constitution the fact that the change from being the owner to not being the owner (when viewed from the position of the seller), or from not being the owner to being the owner (when viewed from the position of the buyer), is gradual does not in itself mean that the concept of property or ownership is incoherent. Rather, in Hegelian terms, having and not having ownership are qualitatively different. Having more and having fewer indices of ownership, however, are quantitatively different. Changes in quantity eventually become changes in quality through sublation. As we shall see, the pragmatic problem for the lawyer and the judge is that it is logically impossible for there to be an exact point at which this change happens.^[225]

c—
Llewellyn and Hohfeld

Llewellyn frequently used Hohfeld's taxonomy of jural conceptions as an analytic tool. A Hohfeldian analysis can be used to show that traditional "Title" analysis is backward. The common law purported first to locate property and then to allocate its constituent rights. But this is impossible if (as Hohfeld suggested) property can only be identified as the sum of its constituent rights. This means that one must first locate those rights which constitute property, and only when one has assigned all of these to one party can one then identify "title"

[225] This causes an insuperable problem for a bankruptcy analysis for an important financing device called "securitization." To oversimplify, in a securitization a debtor assigns accounts or other intangibles to a financing party in a transaction similar to that voided in the case of Benedict v. Ratner . Under Bankruptcy Code § 541(a)(1), the debtor's estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." This raises the question as to whether a financer must turn over to the debtor's trustee the assets transferred in a securitization. Most analysts who have studied this issue have presumed that the answer turns on whether or not the securitization was a true sale. They presume that, if the transaction is a true sale, then the assignor no longer has any interest in the assets transferred. In my analysis, this is a red herring because it assumes that a sale is an event. If, instead, a sale is a process, a seller can retain interests in assets for a considerable period of time. See David Gray Carlson, The Dubious Foundations of Securitization 39 Wm. & Mary L. Rev. (forthcoming 1998).

or ownership (i.e., as the sum of these rights).^[226] The implications for sales law is that one can, therefore, locate "title" (ownership) in the seller before the sale, and "title" (ownership) in the buyer after the sale, but it is meaningless to speak of the location of "Title" during the sales process.^[227]

But, although Llewellyn was influenced by Hohfeld's taxonomy, he rejected the other half of Hohfeld's analysis which held that property, as a legal relation between subjects, does not also require an external object or res which is the subject of these relations. Llewellyn is clear that property relations are "with respect to a particular thing."^[228] He maintained that

[p]roperty rights in non-existing goods are either impossible, or of no importance as long as the goods in question remain non-existent. The problem becomes a real one only when, following yesterday's apparent attempt to create property in non-existing goods, the goods today come into existence and become a subject of dispute.^[229]

[226] Indeed, Llewellyn suggested that despite its protests to the contrary, the common law, in fact, frequently allocated "Title" by reference to the location of its constituents, rather than the other way around.

[227] In Llewellyn's words:

Under [Hohfeld's] view "title" is not the designation of a mystic condition or relation from which observable legal consequences "flow," but is a lump-designation for the conjunction in one person of a large number of particular legal relations with respect to a particular thing. . . . The sum of these and similar legal relations to Hohfeld, is title. And only one of such relations is in issue in any dispute between B and S. . . . But where the "ordinary" aggregate of relations is impaired, as where B carries risk (duty to pay, despite destruction) and perhaps (as in installment sales) liberty as against S to use, but has no liberty to destroy or remove without notice, and is without power to give a good title by sale—in such a case the Hohfeld analysis would require some new designation for B's interest and for S's, both as distinct from "full ordinary title." Because a single label for several aggregates of divergent constitution is bound to lead to confusion (by way of ambiguous middle) if major and minor premises of a syllogism use the one label, though referring to different aggregates. Indeed the discrepancy in the aggregates may be precisely in regard to the one legal relation which is in issue.

Llewellyn, Sales, supra note 191, at 572. He continues:

It is clear that Hohfeld's analysis lies at the foundation of the narrow-issue analysis discussed above; such difference as there is, is only one of emphasis, of stressing narrow issues purely (Hohfeld) in terms of the single legal relation concerned, or (above) chiefly in terms of the economic significance of the issue. The Hohfeld approach is almost indispensable to clear statement of a narrow issue in its legal aspects.

Id .

[228] Id . at 572, 575.

[229] Id . at 575.

Llewellyn's analysis is enshrined in Article 2, which provides that

[g]oods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are "future" goods. A purported present sale of future goods or of any interest therein, operates as a contract to sell.^[230]

In other words, an agreement which purports to transfer goods not yet owned by the seller is a mere contract relationship, and cannot operate as a present conveyance of a property interest until the parties identify a specific res to serve as the object of the relationship.^[231] Consequently, contrary to Thomas Grey's analysis, property remains a distinct, distinguishable legal category under the U.C.C.

5—
Two Examples:
Conditional Sales and Risk of Loss

Let us look more closely at two supposed examples of the abandonment of title and the disaggregation of property in Article 2 of the U.C.C.—the treatment of conditional sales and risk of loss.

a—
Conditional Sales as Substance over Form

U.C.C. § 2-401(2) states, in effect, that even if a seller and buyer expressly agree that the passage of title in a good which is sold on credit is conditioned upon the buyer's payment in full of the purchase price, the U.C.C will treat the transaction as though title vested in the good to the buyer immediately. The seller will only have a purchase money security interest in the good, subject to the perfection and other requirements of Article 9. This can be read, at first blush, as not merely a rejection or disaggregation of "Title" analysis but an abrogation of freedom of contract. These impressions are inaccurate.

[230] U.C.C. § 2-105(2).

[231] This idea of property as legal relations with respect to an external object or res is also included in the requirements of Article 9 and the Bankruptcy Code that a security interest cannot attach until the debtor obtains "rights in the property." U.C.C. § 9-203(1)(c) and Bankruptcy Code § 547(e)(3). It is meaningless to speak of the property right known as a security interest without an object called collateral because the rights conveyed by the debtor to the secured party include precisely the rights to take possession (U.C.C. § 9-503), and realize value by either alienating (the basic remedy under Article 9 is to sell the collateral in a foreclosure sale, U.C.C. § § 9-504 and 505) or enjoying identifiable collateral. If the collateral consists of a right of payment, the secured party has the alternate remedy of collecting the payment rather than selling the collateral. U.C.C § 9-502. A secured party may also, under some circumstances, exercise the right of strict foreclosure under which it can become the "owner" of the collateral with full rights of possession, enjoyment, and alienation. U.C.C. § 9-505(2).

U.C.C. § 2-401(2) can only be understood in context. U.C.C. § 9-102(1)(a) provides that Article 9 applies "to any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures. . . ." U.C.C. § 2-401(2) is not, therefore, a rejection of property or freedom of contract per se but merely a restatement of the general U.C.C principle that substance should prevail over form.^[232] A selfserving statement as to the location of "Title" standing alone should not necessarily determine all property-related issues for all commercial-law purposes. This is a corollary to the proposition which I discussed in section II.B of this chapter that conveyances of property, which affect third-party rights, should be "objectively" recognizable and verifiable by third parties. Among themselves (i.e., contract), the two parties may characterize their relationship according to their private, subjective, idiosyncratic will. But if they wish to bind third parties (property), their actions must be public, objective, and recognized by the community. In other words, if possession (title) must be objectified and if exchange (conveyancing) is the process by which possession is altered, the contract of conveyance should also have a Community Objective aspect.

In contradistinction, common-law "Title" doctrine raised form over substance. The (subjective) declaration of the location of "Title" determined property issues despite, not because of, the allocation of the (objective) substantive rights constituting property. Llewellyn called such

[232] As emphasized by Arthur Corbin in an early defense of the then proposed Article 2, the article on sales does not even eschew the term "title." What it did do is avoid using it in the rigid and totemic fashion of the common law. Rather, it reflects a decision that since the word "title" is such a variable term—one that can create an illusion of certainty—the code drafter should use it

in a cheerful spirit, without fear and without reproach—without fear that others will give it any specific meaning that will cause misunderstanding, and without the reproaches that are sure to follow if he tries to require his readers to accept it with a specific and limited meaning.

Arthur L. Corbin, The Uniform Commercial Code—Sales, Should It Be Enacted? 59 Yale L.J. 821, 825 (1950). Consequently,

no attempt is made to define the term "title". . . . [T]he Code adopt[s] the "cheerful" alternative that is listed above; . . . [it] does not attempt a definition. . . . [The primary difference between Article 2 and the earlier Uniform Sales Act is that] the Code everywhere puts more emphasis upon the operative facts on which stated legal results depend and warns us that those legal results are not determined by such undefined concepts as "title" or "property in the goods." By such emphasis and warning, the attention of both merchant and lawyer are focussed on the vitally important factors and not on the undefined and inoperative concepts.

Id . at 826–27.

declarations of the form of "Title" over the substance of property "paper thunderings."^[233]

Formal declarations of "Title" become even more troublesome when one examines the substance of the typical mercantile transaction. During the sales process, "Title" (understood as the totality of all incidences of property) by definition cannot be definitively located because it is a moving target. It cannot, therefore, be fixed through the subjective intent of the contracting parties.^[234] This was precisely Llewellyn's criticism of the common law of conditional sales in which

the papers . . . make clear that it is not to be a sale, that "property" is not to pass. Something is to pass: The "buyer" is to get possession, and privileges of user, and come under a solid debt for the price; but "property" he is not to get.^[235]

In other words, in a so-called conditional sale the transferee has conditionally acquired significant elements of ownership—the right to immediate physical possession and use. Although the transferee in these transactions may not immediately have the third traditional right of alienation, it is anticipated that she will obtain this right as well upon the payment of the purchase price.^[236] Indeed, even when the further alienation of the entire property interest in the collateral by the buyer-debtor is wrongful under the terms of the contract, the debtor always has the power to convey her equity in the collateral.^[237]

The seller–secured party also has some property rights in the good. In section II.B of this chapter I discussed how a secured party has rights to repossess the good, and to alienate it in a foreclosure sale or to use it through collection or, less often, in strict foreclosure. Since buyer and seller can both be said to have some form of property rights in a conditionally

[233] Llewellyn, Across Sales on Horseback, supra note 202, at 733.

[234] "Now when the location of 'the property' in the wares thus gets far enough away from homely fact to need a lawyer to decide about it, but is supposed to be determined by the intentions of parties who are not lawyers, that is not so good." Id .

[235] Id . at 729. He makes a similar analysis of trust receipts and reservation of title.

[236] These transactions can, for all their surface strangeness, claim as of right to be included in the law of Sales, because if carried to intended completion and fruition they will result in passage from a seller to a buyer of all those rights and other Hohfeldian desirabilities we know together as "property in specific goods."

Id . at 730.

[237] U.C.C § 9-311. Moreover, in some cases she can even convey the secured party's interest in the collateral as well. For example, in some circumstances, a buyer of goods in the ordinary course takes free of the claims of security interests created by his seller. U.C.C. § 9-307(1).

sold good, we cannot say that either party owns the good free and clear—that is, full "Title." Nevertheless, in our legal system, when property rights are divided, we customarily say one party "owns" the property, subject to the rights of the other party. Consequently, we need to make a pragmatic decision as to which of the parties—the conditional seller or the buyer—will be called the "owner."

If property should be "objective," then all transactions structured in the same way should be given the same legal treatment. The drafters of the U.C.C. made a pragmatic decision that the division of the significant incidences of property in a conditional sale is substantially identical with the division in a hypothecation.^[238] We are accustomed to call the debtor's present rights in a hypothecation "ownership." These rights consist of the residual value in the collateral after payment of the secured transaction. As a buyer in a conditional sale similarly acquires the residual upon payment of the purchase price, it seems consistent also to call the conditional buyer the "owner."^[239]

In contradistinction, the common law allowed the private, subjective intent or opinion of the contracting parties to override the public, objective analysis of the transaction—that is, form governed over substance.

[238] In both a conditional sale and a hypothecation, the buyer-debtor's rights of possession and use, and her power of alienation, are immediately exercisable. The seller–secured party's rights are subject to a condition precedent—the buyer's default under the sales contract, or the debtor's default under the secured obligation.

[239] I am not arguing that there is any a priori reason why the debtor-buyer need be deemed the "owner." Actual decisions such as when property interests are deemed sufficiently objectively manifest as to be granted legal recognition, or how to allocate property interests, are matters of positive law, not jurisprudence, and can only be decided by practical reasoning rather than strict logic. I believe that in this specific case, the drafters of the U.C.C. made a pragmatic decision that although conditional sales and hypothecations are not identical, their objectively determinable allocation of certain important incidences of property are so similar that they should be given similar legal treatment.

I am also not arguing that property theory demands that at any one time there must be a party designated as the "owner" of the property. It is merely the historically contingent fact in our legal system that we do so. One could imagine alternate approaches when property interests in the same res are divided, as in the cases of hypothecations and conditional sales. For example, we could have developed something similar to the common-law estates. Under such an analysis, neither the debtor nor the secured party would be deemed to be the "owner" of the collateral in the sense of being the holder of the equivalent of fee simple absolute, but rather, they would have some limited interest or "estate" in the good. Actually, for some purposes we do so. We sometimes speak of the debtor owning the "equity" in collateral, to distinguish this from ownership free and clear. Similarly, even in states which have traditional mortgages rather than deeds of trust, consumers often colloquially speak of their mortgage bank as "owning" their houses. This reflects an intuitive understanding that a debtor's "ownership" of collateral subject to a security interest is not, substantively, equivalent to fee simple absolute.

This is inconsistent with the competing common-law doctrine of ostensible ownership—property interests which are not open and notorious are constructively fraudulent against creditors.^[240]

In other words, the concept of location of "Title" as a matter of subjective intent is inadequate in theory and practice to the lengthy processes of mercantile sales which require property to be determinable by objective evidence. Accordingly, Llewellyn described Article 2's treatment of title as follows:

[A]n objectively manifested act becomes the title-passing point without regard to the intention of the parties to pass or retain title. Such intention is controlling under present law.^[241]

This is why U.C.C. § 2-401 provides that the objective rules of Articles 2 and 9 apply despite subjective declarations of the location of "Title" to the contrary.^[242]

[240] Specifically, as Llewellyn noted, such common-law terminology as "trust receipt" and "reservation of title" merely "perfumed what might otherwise have smelt like 'secret lien' or that rat in Denmark: 'secret chattel mortgage on a stock in trade.'" Llewellyn, Across Sales on Horseback, supra note 202, at 730. Llewellyn had earlier raised a similar point in his casebook. Llewellyn, Sales, supra note 191, at 705. Elsewhere in this casebook, Llewellyn raised the question of form and substance in the opposite case where the form of the contract purports to transfer title to the buyer, but the substantive elements of property remain in the seller:

We turn now first of all to the more primitive situation where the dicker deals with existing goods, where the parties used language that looks like a present sale, and the question is: whether they have accomplished their apparent purpose. Here, as always, the first question is: Is this a present sale or a contract for sale. Only after that question is settled for the second of these alternatives, does the question arise: what obligation rests on S? And: what is the effect, under the contract, of S's acts of purported performance?

Id . at 574.

If the common-law "Title" analysis is inadequate in those cases where the parties actually subjectively allocate title in a conditional sales contract, it is absurd in those cases where the parties do not actually expressly contract as to the location of title. In this case the courts looked to other aspects of the contract to determine the parties' constructive intent. But this approach often resulted in different determinations of the parties' "intent" based on what questions were asked and which parts of the sales contract were examined.

And when . . . "the property" bounces around from party to party according to the issue, it begins to look as if "the property in the goods," as an issue-determiner, were in the mercantile cases a farmer far from the dell, and none too well adjusted to the new environment.

Llewellyn, Across Sales on Horseback, supra note 202, at 733.

[241] Llewellyn, Why a Commercial Code? supra note 198, at 787.

[242] An earlier version of Official Comment 1 to this section reflected the Llewellynesque reasoning even more clearly than the final version of the comment. It originally read:This article . . . deals with the issues between seller and buyer in terms of step-by-step performance or nonperformance under the contract for sale and not in terms of whether or not "title" to the goods has passed. Similarly the presence or absence of externally observable and determinable facts and not the location of "title," controls the rights of the seller's creditors and of good faith purchasers from either the buyer or the seller.

Quoted in Williston, supra note 190, at 568 (emphasis added).

b—
Risk of Loss and the Movement of the Indicia of Ownership

The risk-of-loss rules of Article 2 are another familiar example of the supposed disaggregation of property. Risk of loss is not one of the three traditional elements of property—unless one masochistically believes risk to be the dark side of enjoyment. Nevertheless, it has traditionally been considered closely related to property because it deals with certain obligations of contract parties with respect to specific objects of property. In the great majority of cases, simple unitary property concepts (i.e., "Title") still determine who bears the loss from casualty to a good—the "owner."^[243] This is the farmer's world, where "use and control and possession and risk and power of disposition sit comfortably in the same fist. . . ."^[244] In this paradigm, risk of loss passes at the same time as "Title" (in the sense of the totality of ownership) not because risk of loss is related to "Title" per se but because all aspects of the sale—contract as well as conveyance—are consummated simultaneously. What the drafters of Article 2 questioned was whether this simple rule results in an appropriate answer during the ambiguous period when the ownership of the good is itself in flux—during the sales process.^[245]

[243] Llewellyn makes precisely this point that it does not follow that because the risk of loss normally falls upon the "owner" when ownership is not in dispute or in a state of transition, risk of loss is itself an incidence of property which must follow "Title."

We should know what we meant by saying "owner." We should think in comfort as we can think about two neighboring farmers and their hay stacks. If lightning strikes one stack, it is plain whose is the loss.

Llewellyn, Across Sales on Horseback, supra note 202, at 731.

[244] Id . at 732. For example, if I were to spill a fine burgundy on the couch in my living room, it would be my loss. Why? Because of the truism that I am the owner of both the wine and the couch. You will not have any financial loss, although if you are my guest you might suffer in the sense that you were looking forward to drinking the burgundy which is now seeping into my Chinese rug. But in that case, you suffer because you anticipated that you would soon have a property interest in the wine (the right to enjoy in the form of consumption) as a result of my gift. The U.C.C. approach does not change this simple and intuitive common-law rule when ownership is clearly and definitely located. American law tends to favor the status quo. The law will leave the unfortunate diminution of the value of the coach with me as owner, absent an exceptional rule which would shift the loss (e.g., if I could prove that you were at fault for the spill).

[245] A similar question arose recently when the drafters of Article 2A had to consider application of the rule in one common situation when property rights are divided in a good—that is, in leases when one party, the lessor, has title in the goods, the right to use the good in the sense of receiving rents, the right to alienate the good in the sense of selling his ownership, and the right to physically possess the good at the end of the lease term and earlier upon default of the lessee; and the other party, the lessee, is not deemed owner of the good itself, but has the property rights to physically possess and use the goods during the lease term, but conditioned on the payment of rent, and may have the right to alienate his leasehold through assignment or sublease.

Since the elements of property are dispersed during the sales process, contractual statements of the location of "Title" confuse, rather than aid, the analysis of property issues during the transition period. Recognizing that property is temporarily dispersed places us in the position to ask which, if any, incident of property is related to risk of loss. Llewellyn's analysis reveals that during the pendency of the sales process, risk of loss can always be reduced to a pricing term of the sales contract. The cost of the risk (monetized into the cost of insurance) can either be included in the price quoted by the seller (i.e., the seller bears the risk of loss) or be an additional cost charged to the buyer over and above the purchase price (i.e., the buyer bears the risk of loss). Consequently, risk of loss is not an incident of property (conveyancing) at all. It is just another two-party contract term which does not directly affect third-party rights. Its allocation should, therefore, be governed by the U.C.C.'s general principle of freedom of contract. The U.C.C., therefore, merely needs to set forth "default" rules which apply when a contract is silent.

6—
The Continuing Primacy of Physicality in the U.C.C

Nothing we have seen so far about the supposed disaggregation of property by the U.C.C. has involved a rejection of the traditional identification of property with the physical custody or sensuous grasp of tangible things in favor of an adoption of a Hohfeldian notion of property which does not necessarily require an object of the property rights. Even a brief examination of the conveyancing rules of the U.C.C. will show that its property paradigm continues to be imagined as the real relationship of a person with a physical object, not a symbolic relationship among persons.

a—
The Primacy of Physical Custody

The basic rule of property conveyancing is that upon a transfer of an object of property, the transferee receives only the transferor's interest.^[246] Elsewhere, I have referred to this as a "derivation" rule, because the transferee's rights "derive" from the

[246] This general rule is set forth in U.C.C. § § 2-403(1) (goods), 3-203(b) (instruments), 7-504(1) (documents), and 8-301(1) (investment securities).

transferor's.^[247] This is, of course, a corollary of the basic property priority rule of "first in time, first in right." It relates both to the very definition of possession (i.e., the rightful claim to ownership with the power to exclude others) and to the liberal concern for autonomy (the first claimant's property rights cannot be abrogated without her private consent).

Nevertheless, there are many instances in which a transferee can acquire greater rights than her transferor possessed and cut off the property claims of a prior owner or other claimant. I refer to these rules which promote the property element of alienation and the liquidity of the market by favoring certain preferred purchasers, as "negotiability" rules.^[248] In most American property regimes,^[249] the derivation principle is the default rule. In other words, the first-in-time claimant prevails unless the second-in-time can establish the elements of an appropriate negotiation exception.^[250] The availability of the negotiation exception is based in large part, either expressly or implicitly, on physical custody of the object of the property right.^[251]

This is self-evident in the case of negotiable instruments and negotiable

[247] See Schroeder, Is Article 8 Finally Ready? supra note 97. This is the terminology adopted by Baird & Jackson in their security interests casebook. Baird & Jackson, Security Interests, supra note 41 at 4. The principle is sometimes known as the rule of nemo dat quod non habet . E. Allan Farnsworth et al., Commercial Law: Cases and Materials 28 (5th ed. 1993).

[248] Once again, this is the Baird & Jackson terminology. Baird & Jackson, Security Interests, supra note 41, at 6. Farnsworth et al. refer to this principle as the rule of possession vaut titre . Farnsworth et al., supra note 247, at 28. The term "negotiability" is also used more narrowly to refer specifically to the regime of negotiable instruments, documents, and certificated securities in which obligations are reified into pieces of paper which must be literally grasped by the prevailing party.

[249] Including every article of the U.C.C. other than the 1994 revisions of Article 8.

[250] As I discuss in Schroeder, Is Article 8 Finally Ready? supra note 97, the 1994 amendments to Article 8 reverse the usual conveyancing regime when the property in question is securities or other investment properties held indirectly through brokers and other securities intermediaries. In what I have called a "super-negotiability" regime, the negotiation principle will, in fact, be the default rule. That is, the second-in-time claimant will prevail over the first-in-time claimant unless the original owner can establish the derivation exception by showing that the second-in-time claimant colluded with the intermediary in violation of the first-in-time claimant's rights. As of the date of this book, not all states have adopted these amendments. The version of Article 8 still in effect in these jurisdictions reflects the traditional structure whereby derivation is the default rule and negotiation the exception.

Of course, the fact that the U.C.C. is generally structured so that the derivation rule is the default rule and the negotiation rule the exception does not mean that as an empirical matter the former is the norm and the latter is rare. For example, the holder-in-due-course negotiation rule of Article 3 probably governs the great majority of conveyances of checks. U.C.C. § 3-306. Moreover, in some cases (such as the priority rule with respect to unperfected security interests) the negotiation "exceptions" all but eat up the derivation "norm."

[251] Other typical elements of negotiation rules are some favorable mental state (such as good faith and/or lack of notice) and participation in appropriate market transactions(such as payment of value) and, sometimes, additional formal requirements (such as negotiation by indorsement).

documents where the intangible claim evidenced by the instrument or document is actually reified into a piece of paper. Consequently the favored claimant who has the right to enforce the rights reified in the paper is actually called the "holder" because she must literally have physical custody of the paper and tender physical custody to the obligor to satisfy the requirements of presentment.^[252] These negotiation rules are, obviously, closely related to the doctrine of ostensible ownership discussed at length in section II.B of this chapter which reduced ownership to possession and possession to sensuous grasp.

b—
The Physical Metaphor in the Law of Sales

Privileging physical custody seems intuitive in the case of goods. Goods are tangible. Enjoyment of a good typically requires some form of physical custody. Frequently, the sale takes the form of the delivery of physical custody of the good from the seller to the buyer in exchange for payment—as in Llewellyn's farmer's transaction. Consequently, it might initially seem reasonable to relate claims to goods with physical custody of the good. To do so, however,

[252] A "holder" is defined as someone "in possession" of an instrument or document either in bearer form, or payable to the possessor's order, or with all appropriate indorsements. U.C.C. § 1-201(20). The term "possession" is never defined, but in context it is quite clear that it is intended to mean physical custody by the holder, or her agent. See Schroeder, Legal Surrealism, supra note 46. Although Article 3 has been amended to permit presentment to "be made by any commercially reasonable means, including an oral, written or electronic communication," U.C.C. § 3-501(b)(1), it still provides that upon demand, the person making presentment must "exhibit the instrument," U.C.C. § 3-501(b)(2). As is common knowledge, our check-clearing system generally requires that written checks be physically transferred to the paying bank.

This is less obvious, but no less true, in the case of the law of investment securities prior to the 1994 Amendments to the U.C.C. As I discuss in exhaustive detail elsewhere (Schroeder, Is Article 8 Finally Ready? supra note 97, at 303–12, 323–34), most investors today do not take physical custody of security certificates. Rather, they hold their portfolios indirectly through a chain of financial intermediaries capped by a central depositary who has physical custody of the certificates. Although Article 8 contemplates totally intangible "uncertificated securities," in fact, uncertificated securities are rarely issued by private business entities and are rarely publicly traded. Schroeder & Carlson, Security Interests in Investment Securities, supra note 77. Nevertheless, old Article 8 assumed that physical possession of certificates was the norm and analogized not only the complex multitiered indirect-ownership system but the law of uncertificated securities to physical custody through agents and bailees. Schroeder, Is Article 8 Finally Ready? supra note 97, at 303–22, 328–49. In contradistinction, the 1994 Amendments to Articles 8 and 9 with respect to investment property are intended to eliminate this long-standing physical metaphor in the law of securities transfer. Id . at 329–30, 349–76.

risks confusing the property right in the good with the good itself—the imaginary collapse of the symbolic into the real.

More mundanely, it replicates one of the very problems Llewellyn sought to overcome. It implicitly assumes that a sale is an event. To decide a sales issue by reference to the actual contingent physical location of the good itself, Llewellyn complained, is to beg the question because property disputes in sales revolve around precisely who gets the rights in the goods during the time when property is in flux.

The very fact that we distinguish the "void title" of a custodial thief and the "voidable title" of a custodial scoundrel from the "good title" of a noncustodial owner indicates that the concept of rightful possession is significantly different from the contingent fact of actual physical custody.

This distinction can be seen in the conveyancing rules of Article 2. The law of sales reflects the usual regime whereby the derivation is the default rule, and negotiation the exception. An example of a derivation rule is the first sentence of Section 2-403(1), which provides that "a purchaser of goods acquires all title which his transferor had or had power to transfer." There are a number of negotiation exceptions to this rule. Pursuant to the second sentence of Section 2-403(1), a good faith purchaser of goods for value takes good "title from a person with voidable title." Moreover, if one entrusts goods to a merchant in the business of selling goods of that kind, the merchant can sell the goods to a buyer in the ordinary course of business free and clear of the entrustor's claims.^[253] Similarly, when a seller (or consignor) delivers goods to a buyer (or consignee) in a transaction which is deemed to be a "sale or return," not only does the buyer-consignee, as an entrustee, have the power to sell the goods free and clear of the seller's interest to a buyer in the ordinary course, but the seller's rights are subject to the rights of the buyer-consignee's creditors.^[254]

Article 9 contains a negotiation exception when the first-in-time claimant is a secured party with a perfected security interest in a good, which parallels the negotiation provision of Article 2 governing when the first-in-time claimant is the owner of the good.^[255] A buyer in the ordinary

[253] U.C.C. § 2-403(2).

[254] U.C.C. § 2-326(2). In certain circumstances, U.C.C. § 2-326(3) permits the consignor to protect itself by taking certain actions, such as filing under U.C.C. § 9-114.

[255] U.C.C. § 9-307(1). The schema of Article 9 is more complex than that of Article 2 because of the concept of perfection. U.C.C. § 9-201 provides that security agreements are enforceable not only between the debtor and the secured party but against subsequent second-in-time claimants of the collateral. In other words, the rights of subsequent transferees derive from the debtor's rights and are subject to the first-in-time property claims ofthe secured party. Despite this, unless a security interest is perfected, the effect of the priority rules of U.C.C. § 9-301 is that the negotiation exception all but eats up the supposed derivation "norm." Perfection returns the derivation rule back to its default position by favoring a first-in-time secured party over second-in-time lien creditors, and many second-in-time secured parties and purchasers.

course of goods from a merchant in the business of selling goods of that kind can take free of any perfected or unperfected security interests created by the transferring merchant.^[256]

All of these rules are formulated on the assumption that the transferor is physically grasping and handing over a tangible thing. The entrustment rule of Article 2 is expressly dependent on physical holding. Entrustment is defined as "any delivery and any acquiescence in retention of possession."^[257] (As mentioned before, the U.C.C. uses the term "possession" not in the Hegelian sense but in the limited sense of physical custody by a party individually or through his agent or bailee.) The other Article 2 negotiation rule, permitting holders of "voidable title" to transfer "good title" to good faith purchasers for value, does not so obviously relate to physical custody.^[258] The rules of Article 2 which provide when a consignment shall be treated as a "sale or return" are similarly based on physical custody.^[259] They apply only "[w]here goods are delivered to a person

[256] U.C.C. § 9-307(2) also contains a limited exception whereby a consumer buying consumer goods from another consumer takes free of any security interests which have been perfected by a means other than filing (i.e., automatically perfected purchase money security interests in consumer goods).

Under both Articles the transferor has the power, but not the right, to transfer ownership in the goods. What this means is that the original claimant (whether the owner or the secured party) may not replevy or foreclose on the goods "in the hands" of the transferee and has only contract or tort claims against the transferor. Where the first-in-time claimant is a secured party, in addition to this contract right it has a security interest in any proceeds from the sale in the hands of the debtor-transferor. U.C.C. § 9-306(2).

[257] U.C.C. § 2-403(3). For example, if you bring your watch into a jewelry store for repair, the jewelry store sells previously owned jewelry, and the jeweler sells your watch to an innocent customer, then you probably can't get your watch back from the customer (although you may have a claim of action against the jeweler for conversion and/or breach of contract).

[258] Common-law entrustment doctrine was concerned with one specific form of entrustment—consignments. In a consignment the entrustor surrenders possession in the expectation that a sale will occur, i.e., either the consignor is to sell the entrusted good to a third party as the owner's sales agent, or the consignor herself will buy the good after a tryout period. If a consignee breached the consignment contract by selling the goods in an unauthorized manner, the consignor cannot complain that a sale occurred but can only sue the consignee for breach of contract. For example, the sales agent sells the good at a price less than the one demanded by the consignor, or the consignee who was the consignor's intended purchaser transfers the good to a third party rather than buying it herself.

[259] U.C.C. § 2-326(3).

for sale and such person maintains a place of business at which he deals in goods of the kind involved. . . ." Moreover, "goods held on sale or return are subject to such claims (i.e., of the buyer-consignee's creditors) while in the buyer's possession ."^[260] Although the provision relating to consignments is a famous example of ambiguous and confusing drafting, I believe that this language envisions that the buyer-consignee have physical custody of the goods and (in the case of true consignments deemed to be a "sale or return") that she actually keep the goods at a specific business premises.

The buyer-in-the-ordinary-course rule of Article 9 obviously parallels the similar rule of Article 2 but does not expressly speak of physical custody. Nevertheless, most commercial lawyers presumed that custody is implicitly required.

This presumption—that the grasper has the power to convey good title—was challenged in the famous case Tanbro Fabrics Corp. v. Deering Milliken, Inc .^[261] There, Judge Charles Breitel ruled that a buyer of goods took free of a security interest even though neither the seller-debtor nor the buyer had physical custody of the goods in question. Rather, the secured party retained physical custody!^[262] Nevertheless, the court found that the

[260] U.C.C. § 2-326(2) (emphasis added).

[261] 350 N.E.2d 590 (N.Y. 1976).

[262] In this case, the secured party was a producer of unfinished fabrics known as "greige goods." The secured creditor would sell its greige goods to fabric finishers who would further process and resell the fabric. Frequently, as in this case, these sales would be on credit with the seller retaining a purchase money security interest ("pmsi").

The parties stipulated that, since fabric finishers tend not to have storage facilities, it is customary for sellers to store and hold the greige goods on behalf of finishers and deliver them when called for on an as-needed basis. Such were the facts of this case where the first buyer and pmsi debtor left the greige goods with the seller/secured party. After having sold out its entire run of one type of greige goods, the seller–secured party was approached by a second potential buyer. The seller–secured party suggested to this second buyer that the first buyer might be willing to resell some of the greige goods which still sat in the seller–secured party's warehouse. The two buyers eventually entered into the resale agreement recommended by the seller–secured party. Once again, the new buyer stored the greige goods with the secured party. Apparently, the seller–secured party approved of the transaction since, after the sale, it obeyed the delivery instructions from the second buyer. Nevertheless, at the time the first buyer defaulted on its purchase money obligation, some of the greige goods sold to the second buyer remained in the custody of the seller–secured party. When the seller–secured party tried to foreclose on the greige goods, the second buyer claimed to be a buyer in the ordinary course of business who cut off the prior claims of the secured party. The court agreed with the second secured party.

Although Tanbro's primary business was the sale of finished goods, it also resold excess greige goods with enough regularity to be considered a merchant who deals in greige goods. The court also found that this transaction was common in the fabric-finishing business sothat the buyer was a buyer in the ordinary course of business who took free of the possessory secured party's security interest.

One of the great mysteries of this case is why the court relied on this novel theory rather than holding that this was an authorized disposition within the meaning of U.C.C. § 9-306(2). John Dolan suggested that the manufacturer's salespeople "unwittingly invited the [buyer] to make the very purchase that triggered the dispute." John F. Dolan, The Uniform Commercial Code and the Concept of Possession in the Marketing and Financing of Goods , 56 Tex. L. Rev. 1147 (1978). The reported opinion suggests, however, that this invitation may have been regretted after the fact, but hardly unwitting when made. The decision states that the secured party suggested the resale, introduced the reseller to the buyer for the purpose of the resale, not merely knew of, but acknowledged, the sale, and even delivered part of the resold goods to the buyer. See infra note 266.

buyer qualified for the privileged status of a "buyer in the ordinary course of business" because the parties stipulated that the custody arrangements were customary in this industry.

This case continues to outrage commercial law scholars. Homer Kripke, who had the twin honor of having influenced the drafting of Article 9 as well as having served as a consultant to the losing party in Tanbro , started a public dialogue on this case which briefly threatened to become a cottage industry.^[263] Kripke argued that the drafters always intended seller custody to be a necessary and inherent element of buying in the ordinary course. Moreover, he maintained that the drafters had also always intended that custodial security interests have a special position because custody has not only publicity value but also policing value. Unfortunately, the language of the U.C.C. does not expressly set forth this rule, nor does the logic of property require it.^[264] Kripke suggested that this was because it was thought self-evident that a noncustodial party could not sell property out from under a custodial party.^[265]

Kripke's analysis is problematic because it presupposes rather than proves the empirical facts that are supposed to be its basis. To argue that

[263] See, e.g ., Homer Kripke, Should Section 9-307(1) of the Uniform Commercial Code Apply Against a Secured Party in Possession ? 33 Bus. Law. 153 (1977); Harold F. Birnbaum, Section 9-307(1) of the Uniform Commercial Code Versus Possessory Security Interest—A Reply to Professor Homer Kripke , 33 Bus. Law. 2607 (1978); and Samuel Gottlieb, Section 9-307(1) and Tanbro Fabrics: A Further Response , 33 Bus. Law. 2611 (1978). See also the correspondence between Kripke and Judges Braucher and Breitel reproduced in Baird & Jackson, Security Interests, supra note 41, at 701–02.

[264] The fact that it is not required as a logical matter, of course, does not decide the question of whether or not we might wish to adopt such a rule for practical reasons. The American Law Institute and the National Conference of Commissioners for Uniform State Law have appointed a committee to consider amendments to Article 9. One of the issues being discussed is whether or not to continue the Tanbro rule or to make physical custody by the debtor-seller an express element in U.C.C. § 9-307(1).

[265] Kripke, supra note 263, at 153–62.

the requirement of physical custody is implicit in the "ordinary" element of the ordinary-course rule is to presume that sellers ordinarily retain physical custody until sale and that buyers ordinarily take physical custody upon sale. This is an empirical question.

Realist rules are supposed to reflect actual practice, not abstract logical reasoning. In Tanbro , the parties stipulated that the procedures followed by the parties were customary in the fabric industry.^[266] If, as an empirical matter, it is customary for buyers to resell goods prior to taking custody, then, by definition, the absence of custody is ordinary. Kripke's argument fails because it is based not on what is, in fact , ordinary but on what he thinks should be ordinary. He would make custody part of the legal definition of "ordinary" even when it is, in fact, "extraordinary." This is not legal realism but legal sur realism.

We insist on the real—immediate, physical—nature of property not because of, but despite, empirical evidence to the contrary.^[267]

c—
Llewellyn's "Real-ism."

The primacy of physicality in the U.C.C. reflects Llewellyn's third, unspoken but implicit, complaint about classic "Title" law. It moved the concept of property too far away from the physical. "Title" is too obviously a legal construct—too symbolic. It makes it clear that property is a relationship between people and things which is mediated and artificial. The realists—like us all—longed for immediate, natural re-

[266] Teaching in New York City, I have known many students who have been engaged in the "rag" trade before law school. These have included at least one former greige-goods merchant. These students have not only confirmed that the procedures followed in Tanbro were customary but also uniformly expressed the opinion that the seller–secured party was the wrongful party who was double-dealing the others. This contradicts Dolan's speculation that the secured party's actions may have been "unwitting."

[267] Other exceptions to Article 9's derivation rule for perfected security interests are similarly, either expressly or implicitly, custody-oriented. Security interests in negotiable instruments and documents can only be perfected by physical custody. This is, of course, a subset of the general holder-in-due-course rules and will not be discussed here. More interesting is the super-priority rule for custodial interests in chattel paper.

I say chattel paper is "usually" nonnegotiable because, of course, chattel paper may also consist in part of a negotiable promissory note. For example, if I were to buy a car on credit, I might be required to sign a promissory note evidencing my monetary obligation to pay the purchase price, and a separate security agreement evidencing the grant of the security interest. In the case of consumer sales, FTC Rules might make it a violation of fair trade practices if the seller of the car asked me to sign a negotiable promissory note which did not bear the required legend putting subsequent holders on notice of any defenses I might have against the seller (ensuring that no subsequent holder can become a holder in due course who takes free of such defenses).

Despite this, and despite the usual rule of first-in-time, first-in-right governing rival perfected security interests, purchasers of chattel paper who give new value and take physicalcustody of it in the ordinary course of business have priority over two categories of rival security interests: those of secured parties who perfect by filing, but only if the custodial secured party had no knowledge of the interest in the specific piece of paper; and secured parties claiming the interest merely as proceeds of inventory, regardless of knowledge. In the first case, the metaphoric possession by filing is deemed not sufficient to trump actual physical custody. In this case the mere opportunity of the custodian to see the metaphoric possession (i.e., the possibility of seeing the metaphoric possession by searching the records) must be strengthened by actually making the custodian see it, i.e., actual knowledge. The usual way of doing this is for the noncustodial secured party to place a legend on the chattel paper. When the rival secured party tries to take custody, he will actually physically see the other parties' ownership.

lationships with the real and with each other which preexist our artificial, legal, and symbolic creations. We, therefore, envision imaginary identifications of legal rights with specific tangible objects. To put it another way, I (and Llewellyn) critique "Title" analysis of property as being inadequately "objective." Llewellyn, however, conflated objectivity with tangibility—the "real" with reality.

Llewellyn's "real-ism" is revealed in the following comment to the opening provision of Article 2, to which I have already referred. If not actually penned by Llewellyn, it is a brilliant pastiche of his distinctive writing style.

The legal consequences are stated as following directly from the contract and action taken under it without resorting to the idea of when property or title passed or was to pass as being the determining factor. The purpose is to avoid making practical issues between practical men turn upon the location of an intangible something, the passing of which no man can prove by evidence and to substitute for such abstractions proof of words and actions of a tangible character.

Llewellyn accused legal academics of turning law "into words—placid, clear-seeming, lifeless, like some old canal. [In contrast, p]ractice rolled on, muddy, turbulent, vigorous. It is now spilling, flooding, into the canal of stagnant words."^[268] Traditional academics committed the crime of revealing that law is symbolic. The realists, on the other hand,

[w]ant law to deal, they themselves want to deal, with things, with people, with tangibles, with definite tangibles and observable relations between definite tangibles—not with words alone; when law deals with words, they want the words to represent tangibles which can be got at beneath the words, and observable relations between those tangibles.^[269]

[268] Llewellyn, Realism, supra note 192, at 1222.

[269] Id . at 1223.

Llewellyn condemns legal constructs (i.e., symbolic objects) with a realist's greatest insult—"an intangible something." That legal ideas can be proved, that they have any existence, that they are objective in a symbolic sense, is denied. Only the physical is deemed to have reality. Even language—the realm of the symbolic itself—must become real. Words must take on a tangible character.^[270]

The spirit behind this comment is reflected in Llewellyn's writings. He ridiculed the concept of "Title" as "mythical—or should I say more accurately mystical?"^[271] He calls "Title" a "halo."^[272] Elsewhere he referred to "Title" as a "mystical something."^[273] He thought "Title" was crazy because traditional sales-law issues are, "technically, silly. To a silly issue no sane answer is possible."^[274] Why is "Title" supposedly so irrational? Because "[n]obody ever saw a chattel's Title. Its location in Sales cases is not discovered, but created, often ad hoc ." "The difficulty is plain. 'Title' cannot be seen. . . ."^[275] True property, in contradistinction, is according to Llewellyn something which is "held in one's fist."

Llewellyn argues, in effect, that since title is not corporeal and not visible, it cannot exist. Because title, like all legal, "symbolic" relationships,

[270] See also Gary Peller, The Metaphysics of American Law , 73 Cal. L. Rev. 1151, 1243 (1985) for a discussion of Llewellyn's assumptions concerning the difference between language and reality. Consequently, Dennis Patterson is incorrect in maintaining that Llewellyn was a Wittgensteinian. Dennis M. Patterson, Good Faith, Lender Liability, and Discretionary Acceleration: Of Llewellyn, Wittgenstein and the Uniform Commercial Code , 68 Tex. L. Rev. 169 (1989); and Dennis M. Patterson, Wittgenstein and the Code: A Theory of Good Faith Performance Under Article Nine , 137 U. Pa. L. Rev. 335 (1988).

Llewllyn's approach may be contrasted with Jeremy Bentham's. Although Bentham is famous (or infamous) for identifying reality only with physical existence, in his Theory of Fictions he distinguished between "fictitious entities" and "imaginary fabrications." The former includes legal fictions such as contracts or corporations which have a certain type of reality in that they function. The latter includes things like unicorns. Slavoj Zizek,^[*] Tarrying with the Negative: Kant, Hegel and the Critique of Ideology 85–88 (1993). Lacan was influenced by Bentham's theory of fictions in the development of his own ideas. In the words of Zizek,^[*] "Lacan was fully justified in maintaining that Bentham was the first who realized that truth has the structure of a fiction: The dimension of truth is opened up by the order of discourse which loses its consistency without the support of fictions." Id . at 88.

[271] Llewellyn, Through Title to Contract, supra note 193, at 165.

[272] In 1938 Llewellyn described the common-law analysis as an attempt to locate "a mythical . . . essence known as Title, which is hung over the buyer's head, or the seller's, like a halo." Id . at 165. Twenty-five years later Llewellyn used this earlier quotation approvingly in support of the schema proposed in Article 2. Llewellyn, Why a Commercial Code? supra note 198, at 786.

[273] Llewellyn, Sales, supra note 191, at 561.

[274] Id . The particular issue discussed by Llewellyn at this juncture is whether the seller can recover the price or only damages when the buyer goes back on his bargain.

[275] Id . at 562.

does not preexist the law, but is its creature—that is, it is not "real"—Llewellyn denies that it can properly function as legal actuality.

Of course, as Llewellyn realized, the law not only recognizes property concepts but, in the case of real property, imposes a comprehensive regime of title recognition. In explaining the difference between the reality of realproperty title and the unreality of chattel title, Llewellyn falls back on the imagery and metaphors of physicality. While title can't be seen "[i]n realproperty matters, to be sure [title] is a meaningful concept, because a chain of documents is there for art to construe; it is possible, objectively and definitely, to determine and agree in the great run of cases where title to a disputed piece of land lies."^[276]

Llewellyn imagines real-property title as being real in that it is somehow essentially embodied in the visibly recorded chain of title, whereas he imagines common-law chattel "Title" as being essentially intangible. It cannot be captured in its visible evidentiary tokens. This is because it is impracticable to subject all property transactions in chattel to a realproperty–type recording regime.^[277] He is making two potentially valid points—first, title, as a legal relation, is not the same as the evidentiary tokens we use to identify it, and, second, the early-twentieth-century evidentiary rules for identifying common-law chattel "Title" may have been inadequate to their task as a practical matter. From this Llewellyn draws the non sequitur that chattel title itself is necessarily unreal or incoherent.

Llewellyn is, of course, requiring that property claimants take on the masculine position of the subject who claims to have "it." This position is one of anxiety that this lie will be exposed. Consequently, the masculine subject constantly needs to reassure others (and try to fool himself) that he actually has "it" by identifying an objet petit a —an imaginary ob-

[276] He considers the question as to why title law was unsuccessful with respect to chattel:

Is there an unambiguous chain of documents which would afford a firm base line? In the common law of trust receipts such a chain has been seen and seized on, but then, repeatedly, with disregard of what the realty lawyer could offer as a tool to help the buyer out, to wit, the full interest of a mortgagor in possession. Elsewhere, as in the statutes requiring the original bill of sale to be indorsed, etc., when second-hand cars are sold, or in the shipment of goods under straight or order bill of lading, we let the chain-of-title evidence run into curious confusion with unseen intangible intention. We do so not, I repeat, in chattel matters, lay hold on a firm objective basis for allocating title when we have one—nor have we consistently utilized or remodeled the available concepts about divided interests.

Llewellyn, Through Title to Contract, supra note 193, at 165–66.

[277] This is intuitively obvious in the case of ordinary consumer goods such as groceries (although with modern bar-code technology the day of practicability may be dawning).

ject that stands for a place in the real. He grasps the phallic substitute for the Phallus in his hand and wields it shouting, "See, here 'it' is!"

d—
The Imagery of Destruction and the Bundle of Sticks

Combining Llewellyn's stunning insight that a sale is a process (not an event) with his traditionalist conflation of property with a physical thing in a physical metaphor does have an unfortunate side effect. It leads to the subsidiary metaphor of the bundle of sticks. The imagery of the disaggregation of property conflicts with a concept of unitary property which implicitly, but necessarily, underlies sales law.

The conclusion that a sale is a process which takes place over time implies that during the process feckless "Title" resides in neither the seller nor the buyer. The masculine phallic metaphor requires that "Title" have the firmness of the male member, not the soft elusiveness of the female body. But the identification of property with a hard thing suggests that we should be able to locate property at any given time—a thing is either here or there. The most obvious way of resolving this apparent paradox is to imagine that during the sales process, physical property is broken into pieces. Although each individual piece has location and is passed simultaneously as an event, full "Title" cannot be reassembled until all pieces have passed. This is Llewellyn's imagery. Not only did he speak of traditional property as the sensuous grasp of a single physical thing held in a "fist,"^[278] he also contrasted the "modern" approach as imagining property "not in one fist, but in the spread interlocked fingers of at least two different hands; not lumped and obvious . . . but scattered and divided. . . ."^[279]

Rather than the fasces being seen as one big axe, it now appears as a bundle of little sticks. A sale can now be imagined as the untying of the bundle and the passage of the little sticks separately, followed by the rebundling of the sticks at the other end. This analysis suggests, however, that there is nothing unique about the bundle—it is at most the label for the conclusion of the sales process, rather than a category of legal analysis. As the bundle starts to look contingent, the sticks take on essential characteristics. The image of the fasces breaks down into the two competing alternatives of the axe and the bundle which we must choose between. The more we look at the sticks as the essential pieces, other images are formed. Llewellyn wanted property to remain hard, but he made it brittle. To ac-

[278] Llewellyn, Across Sales on Horseback, supra note 202, at 732.

[279] Id .

count for property as a process, the realists did not so much dismantle property, they shattered it. They tied it back together like a bundle, but like Humpty Dumpty, once shattered, it is never really the same again.

Consequently, the imagery implicit in Article 2 suggests the disaggregation or disintegration of property, but it does not do so in the way supposed by Grey et al. Observing that the property paradigm is degenerating is far from saying that property itself is disintegrating. The planets did not fly off into space when the Copernican paradigm of the universe replaced the Ptolemaic, nor again when Einsteinian physics replaced Newtonian.

Llewellyn was correct that the common-law property paradigm was degenerate and ripe to be overthrown. He was incorrect, however, in identifying the basic paradigm of common-law property with its specific manifestation in the agricultural metaphor. Consequently, the substitution of mercantile imagery for agricultural imagery was not a complete paradigm shift, merely a modification of the "protective belt" which surrounds the core paradigm—the phallic metaphor.

IV—
The Fasces:
Axe and Bundle of Sticks

A—
Constraints

Many scholars, including not only Grey and Vandevelde but also Singer, Beermann, Balkin, and Kennedy, expressly or implicitly assume that the identification of the separate elements of property means that the elements may be freely combined and recombined in any of an infinite number of combinations and that therefore property has no essence.^[280] To use my recurring terminology, they assume from the fact that the fasces can be unbundled into separate sticks that it cannot also be rebundled to serve as an axe.

For example, Jack Balkin argues that Hohfeld's theory of jural correlatives and opposites closely parallels Ferdinand de Saussure's semiotic theory of the arbitrary nature of signification in language. A Hohfeldian legal semiotic, according to Balkin, logically leads to the de-objectification

[280] See, e.g ., Joseph William Singer & Jack M. Beermann, The Social Origins of Property , 6 Canadian J.L. & Jurisprudence 217 (1993); J.M. Balkin, The Hohfeldian Approach to Law and Semiotics , 44 U. Miami L. Rev. 1119, 1120–26 (1990); Kennedy, supra note 34.

of property and the disaggregation of legal concepts into a bundle of sticks that can be freely arranged and rearranged to suit any purpose.^[281] But Balkin reveals himself to be a classical liberal sheep in postmodern wolf's clothing.^[282] He implicitly presupposes an autonomous subject that creates, and therefore exists outside of, law and language. Law and language are, therefore, merely tools that can be freely changed and manipulated at will.

Lacan's theory is also by necessity a theory of linguistics, because he thought that the subject was always the subject of language. His linguistic theory relies heavily on Saussure.^[283] Lacan shows, in contradistinction to Balkin's suggestion, that the logical implications of Saussure's linguistic theory are totally antagonistic to Hohfeld's—and Balkin's—jurisprudential project. The postmodern subject is not an external manipulator of language. Language and the subject are mutually constituting. This means that the subject is not only the subject of language. He is also subject to language.

Hohfeld's theory is what my colleague Arthur Jacobson calls a "correlating jurisprudence."^[284] Such a jurisprudence assumes a closed legal universe in which all possible legal relationships are already captured in a complementary system of rights and obligations. This idea has been accurately conceptualized by Duncan Kennedy and Frank Michelman as a "Law of Conservation of Exposures"^[285] —the only way I can increase my rights is by decreasing your rights in an equivalent manner. In contradistinction, the Lacanian-Saussurian system is a noncorrelative one.

In a Lacanian-Saussurian linguistic system, the arbitrary nature of significance means that meaning is always slipping; all language is metaphor and metonymy.^[286] Consequently, true correlatives and negations of the type supposedly identified by Hohfeld are impossible or illusory. Such identification is imaginary, whereas signification is symbolic. To Lacan and Saussure, meaning is always a spurious infinity. "Each signifier refers not to any corresponding signified but rather to another signifier

[281] Balkin, supra note 280, at 1120–26.

[282] See David Gray Carlson, Derrida's Justice (1994) (unpublished manuscript, on file with author).

[283] See Jacques Lacan, The agency of the letter in the unconscious or reason since Freud [hereinafter Lacan, The agency of the letter ], in Lacan, Écrits, supra note 1, at 146, 149–59.

[284] Arthur J. Jacobson, Hegel's Legal Plenum , 10 Cardozo L. Rev. 877, 881 (1989).

[285] Duncan Kennedy & Frank Michelman, Are Property and Contract Efficient? 8 Hofstra L. Rev. 711, 759 (1980).

[286] Lacan, The agency of the letter, supra note 283, at 156–57. Lacan identifies his concepts of metaphor and metonymy with Freud's concepts of "condensation" and "displacement." Id . at 160.

in a sequence or 'chain' of signifiers that Lacan describes as being like 'rings of a necklace that is a ring in another necklace made of rings.'"^[287] Postmodern thought, as exemplified by Lacanian psychoanalysis, is precisely the denial of fit and complementarity; something is always missing, and something is always spilling over.

For example, although the Feminine is positioned as the negation of the Masculine, this cannot mean that if the Masculine is the positive, then the Feminine is the negative, or that woman is the complement to man. Rather, to Lacan, while the Masculine is the claim to be all, the Feminine is not nothing. She is the not-all (pas-toute ), as in not all things are Phallic .^[288] She is the denial of the fictional hegemony of the Phallus , which is the very foundation of subjectivity. Woman is not the complement to man, therefore, but a supplement.^[289] The Phallus is the forever-lost object from which we are castrated—the lack or hole that exists at the core of Lacanian subjectivity and Hegelian totality.^[290] There is always something more

[287] William J. Richardson, Lacan and the Subject of Psychoanalysis, in Interpreting Lacan 51, 54 (Joseph Smith & William Kerrigan eds., 6 Psychiatry and the Humanities, 1983) (quoting Lacan, Écrits).

The meaning of this chain does not "consist" in any one of these elements but rather "insists" in the whole, where the "whole" may be taken to be the entire interlude as described, whose meaning, or rather whose "effect" of meaning, is discerned retroactively.

Id . at 55.

[288] "Her being not all in the phallic function does not mean that she is not in it at all. She is in it not not at all. She is right in it. But there is something more." Lacan, God and Jouissance, supra note 1, at 145; see also Rose, supra note 1, at 49–50; Zizek,^[*] Looking Awry, supra note 2, at 44–45.

[289] "Note that I said supplementary. Had I said complementary, where would we be!" Lacan, God and Jouissance, supra note 1, at 144; see also Rose, supra note 1, at 51. As so clearly explained by Salecl:

Lacan thus moves as far as possible from the notion of sexual difference as the relationship of two opposite poles which complement each other, together forming the whole of "Man." "Masculine" and "feminine" are not the two species of the genus Man but rather the two modes of the subject's failure to achieve the full identity of Man. "Man" and "Woman" together do not form a whole, since each of them is already in itself a failed whole.

Salecl, supra note 37, at 116.

In his most recent work, Zizek^[*] has used the word "complementarity" to describe the relationship of the Lacanian sexes. This is an uncharacteristically unfortunate and idiosyncratic choice of words by a usually eloquent scholar, albeit one for whom English is not his first, or even second, language. Zizek's^[*] conception of sexuality totally lacks the type of simple imaginary fit connoted by the word "complementary."

[290] The école freudienne, The phallic phase and the subjective import of the castration complex [hereinafter the école freudienne, The phallic phase ], in Lacan, Feminine Sexuality, supra note 1, at 99, 116–17; Jacques Lacan, The direction of the treatment and the principles of itspower, in Lacan, Écrits, supra note 1, at 265; Jacques Lacan, The signification of the phallus, in Lacan, Écrits, supra note 1, at 281, 288; Jeanne L. Schroeder & David Gray Carlson, The Subject Is Nothing , 5 Law and Critique 94 (1994) (reviewing Zizek,^[*] For They Know Not What They Do, supra note 1).

and something lacking that makes immediate relationship impossible. Mediation is always necessary because it is impossible.

The noncomplementarity of sexuality explains why woman is object of man's fears and hopes, Fury as well as Muse, Kali Ma as well as Virgin Mary. The masculine position is "all are subjected to the symbolic order." The Feminine is the denial "not all."^[291] She is, therefore, on the one hand, the exposure of the lie of subjectivity and the symbol of universal castration. Woman in this aspect must be suppressed and subordinated. The Masculine tries to deny the freedom of feminine negativity by replacing her with fantasy images of femininity. On the other hand, by denying that all are castrated in the sense of subject to the law as prohibition, the feminine denial is the hope of freedom and the achievement of wholeness. She is the dream that the Phallus is not always already lost, but not yet found—that sexual relations are not impossible, merely forbidden. This aspect of the Feminine, like the superego, urges us "Enjoy!"

Moreover, the arbitrariness of significance does not mean that meaning or legal concepts can be freely manipulated. We do not bind ourselves to fixed linguistic and legal concepts despite the arbitrariness of signification but just because of its arbitrariness and slippage. In Lacan's metaphor, we must quilt together the shifting layers of signifier over signified.^[292] Meaning and language, and subjectivity itself, consist precisely of this fiction of static significance. This is, of course, the masculine position of claiming to have "it"—to have captured that which cannot be captured. Consequently, subjectivity is a dialectic concept that is both free in that it is a fiction and bound because it is a fiction. If we change the fiction, we change ourselves. Because Lacanianism denies the naturalness or inevitability not only of the legal regime but of subjectivity itself, it holds out the possibility of the truly radical change of creating alternate sociolinguistic-legal universes. But a new alien species of subject will necessarily inhabit such new universes. The postmodern subject, unlike his liberal modern counterpart, who is at some level autonomous from the legal regime, cannot, therefore, merely "will" changes in the fundamental aspects of the legal and linguistic regime, which is the gender hierarchy. When we quilt

[291] Lacan, God and Jouissance, supra note 1, at 145. See also Rose, supra note 1, at 49–50.

[292] Lacan, Seminar III, supra note 5, at 258–70; Zizek,^[*] Looking Awry, supra note 2, at 44–45.

signification, we sew our very subjectivity. Changes in the symbolic order require a dialectical and simultaneous change in every aspect of our subjectivity and society. The problem for those of us who are both Lacanians and progressives is how to start this chicken-and-egg process in motion. How can we ever sublate masculine subjectivity and feminine objectivity to achieve the not-yet immediacy of sexual relations, without submerging into the deadly unity of the real?

Slavoj Zizek^[*] gives a wonderful illustration of the difference between the modern (Hohfeldian-Balkinian) and postmodern (Lacanian-Saussurian) concept of the subject. Near the end of the movie Blow-Up ,^[293] the protagonist passes a group of people miming a game of tennis without a ball. One of the players pretends to hit the ball out of bounds. The protagonist plays along and pretends to retrieve the ball and toss it back into the court. Modernism concludes from the observation that the "game" of society is not inevitable or natural, it has no content; content resides solely in the subject itself. Postmodernism, in contradistinction, does not deny the necessity of the object merely because it is arbitrary. Rather, it shows us the object in all its "indifferent and arbitrary character."^[294] In other words, the modern subject is conceived of as autonomous from, and therefore in control of, the game. He not only can change the game or leave the game but does not even need a ball or other external object to play the game. The postmodern subject, however, is not autonomous with respect to the game of law and language. He exists as a subject only insofar as he plays the game. Consequently, there must always be a game and a mediating object of desire.

Thus, insofar as legal concepts serve functions—social, economic, psychic, or philosophical—the combinations of jural elements cannot be random or arbitrary and cannot be freely altered at will. Hegelian philosophic theory, combined with Lacanian psychoanalytic theory, indicates that the possession, enjoyment, and alienation of external objects serve necessary roles in the development of subjectivity in this society. Consequently, it is meaningful and not random for a legal regime to recognize a distinctive category of legal rights called "property" that contains all three of these elements.^[295] This does not mean that all legal relationships need be full

[293] Blow-Up (Bridge Films 1966).

[294] Zizek,^[*] Looking Awry, supra note 2, at 143. Another example of the modern work of art given by Zizek is Waiting for Godot , in which, of course, Godot never arrives. Id . at 145. In a postmodern play, Godot is always there, although he may not be what you expected. Id .

[295] Hegel can identify three elements of property precisely because he speaks at the highest levels of abstraction. A Hegelian would argue that so many discussions of property, including Grey's, wind up concluding that property is incoherent or infinitely variable pre-cisely because they confuse the general concept of property with specific applications of positive law. For example, Lawrence C. Becker (following Honoré) identifies at least thirteen—or ten, depending on how one subdivides the rights—possible elements of property rights, not all of which need be present for a right to be considered property. These rights are: (i) the right (claim) to possess; (ii) the right (liberty) to use; (iii) the right (power) to manage; (iv) the right (claim) to the income; (v) the right (liberty) to consume or destroy; (vi) the right (liberty) to modify; (vii) the right (power) to alienate; (viii) the right (power) to transmit; (ix) the right (claim) to security; (x) the absence of term; (xi) the prohibition of harmful use; (xii) liability to execution; and (xiii) residuary rules. Lawrence C. Becker, The Moral Basis of Property Rights, in Nomos, Property, supra note 109, at 187, 190–91 (citing A. M. Honoré, Ownership, in Oxford Essays in Jurisprudence 107–47 (A.G. Guest ed., 1961)).

A Hegelian would argue that these thirteen "elements" are more accurately described as specific empirical manifestations of the three more general elements of property, or of limitations of the three elements imposed by positive law. For example, rights i, vi, ix, and x are different actualizations of the Hegelian concept of possession.

property relations. Nor does it mean that all property relations must be absolute; we may want to recognize limitations on any or all of the three general categories of property rights. Indeed, as Hegel himself argued, the logic of the concept of property is both self-limiting—unlimited property rights of different subjects would be mutually inconsistent—and limited by other, more developed concerns of human development, such as morality and ethics.

Nevertheless, the Hegelian-Lacanian approach only defines the parameters of property at the most abstract level and has little or no practical use in prescribing the minutiae of specific property regimes. The specific limitations and applications of the broad and abstract concept of property to meet the needs of any given society are properly to be determined by practical reasoning and adopted into positive law—precisely as pragmatists such as Grey argue. This is why the Hegelian idealist philosophic tradition is arguably the precursor not only of Continental postmodern philosophy but also of American pragmatic philosophy. The flexibility of Hohfeldian atomic analysis arguably gives it an advantage over a molecular approach in the pragmatic enterprise of promulgating the positive law of property. But it has the danger of making us think that by fiddling with the details of the positive law of property, we can undermine the crushing hegemony of the regimes of property and gender, rather than merely replicate them.

B—
The Denial of the Feminine

The imagery of the bundle of sticks—the attempt to disaggregate property—is self-defeating. It reflects the desire to capture the

symbolic aspect of property as human interrelationships, but it denies the mediating object that permits the development of subjectivity as intersubjectivity. In an attempt to recognize the element of exchange, it represses possession and enjoyment. Property as alienation reflects the failed masculine strategy of trying to attain wholeness by retroactively "consenting" to castration in exchange for the promise of a future substitute object.

The imagery of the axe—the attempt to epitomize property as the sensuous grasping of physical things—is the mirror image of that error and is equally self-defeating. It denies property its very nature as a legal relation—symbolic, abstract, social, and mediated—in favor of an imagined, infantile, immediate, real union of the subject and the object. The traditional approach taken by Waldron privileges the elements of possession and represses those of enjoyment and alienation. This is particularly inappropriate in the merchant's transaction where alienation through market exchange is of the essence. Property as possession reflects the failed masculine strategy of pretending to be whole by denying castration and the resulting necessity for mediation.

The symbolic Phallus is the object of desire. Our ultimate desire is the imaginary, forever-lost union with the Other imagined as the Mother, which we place in the real world beyond interpretation. Consequently, the Phallus —what men are supposed to have and women are supposed to be—is paradoxically both the Feminine and the signifier of masculine subjectivity.

Men try to attain subjectivity and hold the Phallus , not only by having the real penis but also by trying to control women's bodies. Of course this is unsatisfactory. They can never attain the Phallic Mother. So, in frustration, they deny the existence of the lost Feminine. They try to pretend that they achieve unmediated relationships by denying the existence of the mediator. In Lacan's terms, "The Woman does not exist." She is real in the technical sense that she cannot be adequately described in symbolic language, but she cannot be reduced to or grasped as a real object. The Woman—the Feminine—becomes purely the imaginary object of men's fantasy; woman becomes a symptom of man.^[296]

We try to explain our desire by retroactively positing a cause—the object petit a —which sits at the crossroads of the symbolic and the real. In the imaginary we identify the object a with a specific thing that is actual, biological, natural—that is, seemingly real. This is in the vain hope that

[296] See Rose, supra note 1, at 48–51.

if we can attain the real object, then our desire will be fulfilled.^[297] Or, we deny mediation entirely.

Waldron, Baird, Jackson, and Llewellyn insist that property is archetypically sensuous on the grounds that sensuous things exist, can be seen, and are easier to identify and think about. This attempt to embrace the lost Feminine by grasping tangible things is, once again, reflected in etymology. The word "material" derives from the word for "mother."^[298] But property interests as a legal matter are abstract and symbolic and as an empirical matter are often concerned with noncorporeal objects. Consequently, sensuous grasping is inadequate to the role of the archetypical relation of the subject with the object of desire of property in precisely the same way as the penis and the female body are inadequate to serve the psychoanalytic role of the Phallus . This is the psychoanalytic position of the Masculine—the deluded, split, and despairing Lacanian subject who continues to repeat the lie that he is not castrated: he has the Phallus merely because he has and controls tangible property, just as he has a penis and controls women. The masculine position is not to have "it" in fact, but to claim falsely to do so.

Noncorporeal property, like feminine sexuality, is at once hidden and ubiquitous, lack and surplus. We try to deny the Feminine her role as Phallus precisely because she cannot be easily seen and held. Feminine sexuality must be tamed by defining her as the female body that is occupied—possessed—by the penis in heterosexual intercourse. Thus Waldron says that only the tangible, and no other form of property, exists. The noncorporeal can only be discussed if it can be analogized to the corporeal. To Waldron we possess but don't exchange, to Grey we exchange but don't possess. Neither can recognize feminine enjoyment.

Because feminine intangibility is hard to identify and think about, it

[297] This strategy is, of course, always unsuccessful. Once the object is obtained, the subject merely identifies the object petit a with another object. As soon as one gets that new car, one always wants another new car, a new dress, a bigger house, and so on.

In his later work, Lacan defined the objective of psychoanalysis as breaking the confusion behind this mystification, a rupture between the objet a and the Other, whose conflation he saw as the elevation of fantasy into the order of truth. The objet a, cause of desire and support of male fantasy gets transposed onto the image of the woman as Other who then acts as its guarantee. The absolute "Otherness" of the woman, therefore, serves to secure for the man his own self-knowledge and truth.

Id . at 50.

[298] Joseph T. Shipley, The Origins of English Words: A Discursive Dictionary of Indo-European Roots 7 (1984); Eric Partridge, Origins: A Short Etymological Dictionary of Modern English 386 (1966).

must be denied. The Feminine and property are identified with "lack."^[299] The Lacanian masculine subject insists that The Woman does not exist. Thus Hohfeld, Grey, and Vandevelde mirror back Waldron's psychoanalytically masculine position. They say that the res of property does not exist.

[299] Drucilla Cornell, The Philosophy of the Limit 173 (1992); the école freudienne, The phallic phase, supra note 290, at 116–17.