William & Mary Law Review Volume 37 (1995-1996) Issue 2 Article 3 February 1996 Some Realism About Legal Surrealism Jeanne L. Schroeder Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Commercial Law Commons Repository Citation Jeanne L. Schroeder, Some Realism About Legal Surrealism, 37 Wm. & Mary L. Rev. 455 (1996), https://scholarship.law.wm.edu/wmlr/vol37/iss2/3 Copyright c 1996 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr SOME REALISM ABOUT LEGAL SURREALISM JEANNE L. SCHROEDER* [O]ne must discard the prejudice that truth must be some- thing tangible.' I. INTRODUCTION: GRASPING AT STRAWS Commercial law-the private law of personal property-is in the grasp of a physical metaphor. 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 analy- sis of noncustodial property interests in tangible chattels that, at least theoretically, could be grasped. It is bizarre when applied to intangibles. Rather than being simple and intuitive, as its proponents claim, the metaphor of sensuous grasping can only be maintained through the use of increasingly elaborate aux- iliary metaphors and analogies. If legal realism was an attempt to make commercial law more nearly reflect actual economic practice, then the physical metaphor is legal surrealism. This physical metaphor can be found in both an affirmative and negative form. The defenders and critics of property alike implicitly agree that the paradigm of property is the sensuous grasp of physical things but disagree as to its implications. Does it mean that nonsensuous property interests need to be analogized to sensuous ones? Or, alternatively, does the absurdi- ty of such analogies prove that property is a meaningless or * Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. A.B., Williams College; J.D., Stanford Law School. I particularly wish to thank David Gray Carlson, Paul M. Shupack, and Jack Williams for their insightful com- ments and Joshua DeRienxis for his research assistance. An abbreviated version of this Articles is intended to be published as part of JEANNE L. SCHROEDER, THE VESTAL AND THE FASCES: PSYCHOANALYTIC AND PHILOSOPHICAL PERSPECTIVES ON THE FEMININE AND PROPERTY (forthcoming 1996). 1. G.W.F. Hegel, HEGEL'S SCIENCE OF LOGIC 50 (A.V. Miller trans., 1969). 456 WILLIAM AND MARY LAW REVIEW [Vol. 37:455 obsolete concept? In a series of recent articles, I have explored the persistence of the physical metaphor in contemporary jurisprudence2 and in doctrinal scholarship.3 In this Article, I further explore the per- 2. I critique a number of scholars who have attacked the coherence of property in JEANNE L. SCHROEDER, THE VESTAL AND THE FASCES: PSYCHOANALYTIC AND PHILOSOPHICAL PERSPECTIVES ON THE FEMININE AND PROPERTY (forthcoming 1996) [hereinafter SCHROEDER, THE VESTAL AND THE FASCES]; Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) [hereinafter Schroeder, Bundle-O-Stix]; Jeanne L. Schroeder, The Vestal and the Fasces: Property and the Feminine in Law and Psychoanalysis, 16 CARDOZO L. REV. 805 (1995) [hereinafter Schroeder, The Vestal and the Fasces]; Jeanne L. Schroeder, Virgin Territory: Margaret Radin's Imagery of Personal Property as the Inviolate Feminine Body, 79 MINN. L. REV. 55 (1994) [hereinafter Schroeder, Virgin Territory]. 3. Jeanne L. Schroeder, Liquid Property: The Myth that the U.C.C. Disaggregated Property (Aug. 11, 1995) (work in progress, on file with author) [here- inafter Schroeder, Liquid Property]. I have suggested that the physical metaphor persists despite its disutility, not because of its utility, because it relates to the psychoanalytic tendency to try to reduce the legal or Symbolic to the prelegal or Real through Imaginary identification of legal conceptions with actual physical objects. In this and my other articles, I refer to Jacques Lacan's concept of the psychoanalytic orders of the Symbolic, the Imaginary, and the Real. See id. at 6-8; Schroeder, Bundle-O-Stix, supra note 2, at 246-55; Schroeder, The Vestal and the Fasces, supra note 2, at 884-93; Schroeder, Virgin Territory, supra note 2, at 155-65. A complete explanation of these concepts is beyond the scope of this Article. For the limited purposes of this Article, it is sufficient to say that the Symbolic includes the social order of language and law. See Schroeder, The Vestal and the Fasces, supra note 2, at 885; Schroeder, Virgin Territory, supra note 2, at 159. The Real stands for that which is prelinguistic and cannot be reduced to or contained by language. See Schroeder, The Vestal and the Fasces, supra note 2, at 885; Schroeder, Virgin Territory, supra note 2, at 156-57. It is, therefore, the order of limitation. It is not equivalent to the actual physical world per se but includes our psychoana- lytical sense of a world external to our consciousness. The Imaginary is the order of images and includes our identification of the Symbolic and the Real with actual objects. See Schroeder, The Vestal and the Fasces, supra note 2, at 885; Schroeder, Virgin Territory, supra note 2, at 157-58. For example, our identification of the order of the Real with the physical world is an Imaginary identification. In my articles and forthcoming book, I also suggest that the physical metaphor for property is not the Imaginary identification of property with just any physical object. I argue that, in Lacan's psychoanalytical theory, sexuality plays a parallel role in the development of legal subjectivity as property does in Hegel's philosophical theory. The physical metaphor is, therefore, specifically a phallic one-the imagery of seeing, grasping, and wielding the male organ, or entering and/or protecting the female body from violation. In other words, the ostensible ownership doctrine is not merely a fallacy, but a phallusy. I do not rely primarily on this specific feminist analysis of the physical metaphor in this Article. 1996] REALISM ABOUT LEGAL SURREALISM 457 nicious use of the physical metaphor in commercial law, scholar- ship, and doctrine, with particular emphasis on the law of per- fection of noncustodial security interests and security interests in intangible property. Specifically, I consider the rules govern- ing the perfection of security interests under Article 9 of the Uniform Commercial Code (UCC), and under the revisions to Articles 8 and 9.4 In this Article, I will concentrate on the most extreme and surrealistic example of the affirmative version of the physical paradigm in commercial law-the doctrine of ostensible owner- ship. This doctrine is frequently promoted as the justification for the perfection requirements of Article 9.5 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.6 Not only does the sensuous grasp of a physical thing raise a legal pre- sumption that the grasper is the owner, but property interests which do not, or cannot, take the form of physical grasp- ing-such as when the object of the property interest is itself intangible-are deemed to be so problematic as to be presump- tively fraudulent unless "cured."7 In order to rethink property imagery, we must consider the definition of property in terms of the functions it is supposed to 4. The National Conference of Commissioners on Uniform State Law (NCCUSL) adopted sweeping revisions to Article 8 and related changes to Article 9 at its Au- gust 1994 session. These proposals were proposed for adoption by the several state legislators in early 1995. As of the publication of this Article, they have been adopt- ed by at least 13 states and are being considered for adoption by a number of oth- ers. The revisions are intended to reflect more adequately the indirect holding sys- tem through which most publicly traded securities are held today. See infr-a notes 135, 142, 144-45 and accompanying text. Among other changes discussed in this Article, the revisions will return the rules for the attachment and perfection of secu- rity interests in investment property to Article 9 from Article 8. I discuss this new statutory regime extensively in Jeanne L. Schroeder, Is Article 8 Finally Ready This Tinw? The Radical Reform of Secured Lending on Wall Street, 1994 COLUM. Bus. L. REV. 291 [hereinafter Schroeder, Is Article 8 Finally Ready This Time?]. In this Article, references to Articles 8 and 9 of the UCC shall be to the official text as amended by the 1977 amendments. When the most recent amendments to these articles are pertinent to the discussion, I will refer to such sections by their 1994 amended date. 5. See infira notes 15-17 and accompanying text. 6. See infra notes 54-56, 83, 117 and accompanying text. 7. See infra notes 36-38 and accompanying text. 458 WILLIAM AND MARY LAW REVIEW [Vol. 37:455 serve and how it can be distinguished from contract. Elsewhere, I have offered a justification for the UCC's treatment of property within classical liberal political and jurisprudential theory that emphasizes natural rights, personal autonomy, and negative liberty.' In this Article, I offer an alternative justification for the perfection requirement based on G.W.F. Hegel's philosophy of right, which emphasizes the creation of personality, intersubjectivity, and positive freedom. I will suggest that, de- spite the fact that Hegel's theory of property is unfamiliar to most American property law scholars and practitioners, it offers an even more satisfactory account of property law than tradi- tional Lockean theory.