Counterintuitive Thoughts on Legal Scholarship and Secured Transactions

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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.