Center for Constitutional Governance
Program in the Law and Economics of Capital Markets
You will all be happy to know that, haying listened to my colleagues for the last three hours, I have completely forgotten what I was planning to say. But I haven't forgotten why I am here. I am the proverbial skunk at the garden party, and I hope to fulfill my role as the only skeptic in the group. I must tell you candidly, however, that I agree with everything Gail Hillebrand had to say. That doesn't mean she is going to agree with anything that I have to say, but perhaps there are two skeptics here this afternoon.
My perspective differs significantly from my colleagues on the panel, although they are all people whom I respect enormously. My colleagues are all, in one way or another, uniform laws' insiders. I have had only one foray into this process as a member of the Article 9 study group, and it cured me permanently of any further inclinations to join Dick Speidel in the uniform laws trenches. My perspective, therefore, is largely informed by legal theory. Many of my fellow panelists have shared with me, some privately, others in print, their skepticism about the role of theory in this debate. That is to be expected. Commercial lawyers are, after all, hard-nosed realists. In any event, those of us who do theory have as our first article of faith that skepticism about theory is always justified. But the point I would make is that, while skepticism about theory is justified, ignorance of theory is not. So, while I don't hope to persuade any hard-nosed realists that have held out thus far this afternoon (certainly not after three hours), I do hope that some of you will pause for a moment to think about the larger theoretical and structural questions that inform this debate.
Robert E. Scott,
Is Article 2 the Best we Can Do?,
Hastings L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2222