Rethinking Commercial Law’s Uncertain Boundaries

30 Pages Posted: 20 Jan 2023 Last revised: 14 Apr 2023

Date Written: January 18, 2023

Abstract

Although it is an essential part of business law, commercial law has uncertain boundaries. That uncertainty creates significant legal ambiguities and inconsistencies, confusing lawyers and courts and causing misinterpretations that disrupt commerce and reduce efficiency. This Article hypothesizes and tests possible explanations for the uncertainty, including that commercial law’s development has been path dependent, ad hoc, and lacking well-defined normative purposes. The Article then analyzes what those boundaries should be, arguing that commercial law should cover all business-related transfers of property, subject to exceptions needed to reduce transaction costs and otherwise increase economic efficiency. The Article also compares its proposed boundaries to the scope of commercial law under the Uniform Commercial Code, both to test whether those boundaries are tethered to reality and to examine whether the scope of the UCC itself should be modified.

Keywords: commercial law, UCC, path dependence, commerce

Suggested Citation

Schwarcz, Steven L., Rethinking Commercial Law’s Uncertain Boundaries (January 18, 2023). Duke Law School Public Law & Legal Theory Series No. 2023-12, Available at SSRN: https://ssrn.com/abstract=4328793 or http://dx.doi.org/10.2139/ssrn.4328793

Steven L. Schwarcz (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7060 (Phone)
919-613-7231 (Fax)

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