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Abstract:
Forces entirely apart from rationality shape commercial law. A turn to aesthetics directs attention to the non-rational elements at play in this law. These suppressed elements privilege commercial actors by deterring consideration of legal limitations on commercial activity that could be socially desirable.

Problematic features of commercial law take two different forms. First, there are types of commercial transactions encouraged by U.S. commercial law the very structures of which raise fairness and efficiency concerns. Second, the sheer volume of commercial transactions and the lack of legal controls requiring market actors to internalize ensuing economic, social and environmental costs raise serious questions about the desirability of laws designed to encourage perpetual escalation of commercial activity.

These problematic aspects of commercial law invoke difficult questions. How do we determine what levels and forms of commercial activity are optimal? If commitment to a more balanced approach to commercial activity were possible, who would be helped, who would be harmed, and how? The aesthetics of commercial law deters engagement with these questions by informing certain non-rational, pre-reflective dispositions that enable common refrains against reform.

Much of contemporary commercial law scholarship employs economic modeling or empiricism. Empirical findings or successful economic models, however, do not automatically become fruitful bases for law reform. Aesthetic elements of commercial law affect the capacity to translate the results of analytical approaches (quantitative or otherwise) into law reform.

Recognizing the aesthetics of commercial law is crucial as professionals applaud U.S. commercial law's facilitation of commercial activity here and superiority for attracting investment abroad.

commercial law, aesthetics, UCC, secured transactions

Abstract:
Commercial law expert James J. White has stated that banks and other secured creditors worship security interests with apostolic zeal, and that no one has less power in a debate over the scope of collateral security rules than a law professor with a counterintuitive idea. This essay investigates on what grounds a law professor might take a normative position on secured transactions law that bears no reasonable relationship to politically viable possibilities for Uniform Commercial Code reform. This investigation leads to foundational questions about the nature and purposes of legal scholarship. There seems to be a relationship between crises of legitimacy in law and a need for most legal scholarship to be relevant on some level, however tenuous or imagined, to lawmaking. Theorists have used the concept of loss of reference developed by continental philosophers to show crises of institutional legitimacy in law. Loss of external reference in lawmaking drives a need for sustainable distinctions and non-instrumental conceptions of juridical relations. Legal scholars can play a central role in the project of constructing the types of sustainable differentiations and referents that lawmaking requires. From this vantage point, the space within this project for unrealistic reform proposals such as counterintuitive ideas for secured transactions law becomes interesting to define.

legal scholarship, secured transactions, continental philosophy

Abstract:
While scholars debate the fairness and efficiency of full priority secured lending and asset securitization, lawmakers pass statutes that only expand these types of financing. Lawmakers seem compelled to err in favor of sophisticated secured creditors and against creditors in weak bargaining positions.

This article addresses why non-adjusting creditors remain on the sidelines as lawmakers embrace legislation encouraging asset securitization and expanding UCC Article 9. It argues that non-adjusting creditors' positions must be understood in relation to a socio-political climate steeped in deference to the needs of institutional creditors. Legal scholars have failed to take issues of broad socio-political climate into account in analyses of how and why the law continues to expand secured creditors' domain.

Contemporary media on finance and business evidence this socio-political climate. There is an acute lack of critical distance from financing activities that pervades journalism in the United States. This lack of critical distance in public discourse on finance is a form of disregard of economic inequality among Americans. This article hypothesizes that disregard of inequality in business reporting indicates an imagined community of investors with which even disadvantaged creditors identify. Widespread identification with an imagined community of investors enables secured creditors to present unfettered expansion of business credit as consonant with public interest both within the UCC drafting process and before the state legislatures.

uniform commercial code, commercial law, secured transactions, securitization

Abstract:
Financial institutions are seeking to leverage the value of the cash that emigrant workers remit to their home countries. Specifically, banks in developing countries have securitized remittance cash flows. The size and stability of worker remittances have caused a surge of interest among financial institutions, academics and others in recent years. Remittance securitizations - or, issuances of remittance-backed bonds - present specific instances in which parties in remittance-receiving countries have actually harnessed the value of remittances in order to access capital markets. Remittance flow securitization can enable developing region banks to raise funds at advantageous rates. Because these future-flow transactions depend upon the bank's capacity to retain or grow its market share of the cash flow securitized, they present an opportunity to ensure better services and lower costs to remittance senders and receivers. Remittance securitization could provide strong incentive for banking with the poor. Worker remittances are generated by emigration that can deprive communities of human capital necessary to effectuate development locally. This article considers possibilities for, and the propriety of, structuring these securitizations to maximize their development potential for remittance-receiving communities. The article explains how remittance securitization works and develops a list of questions to consider in assessing the implications for development of this financing practice.

remittances, securitization, remittance-backed bond, structured finance, development