Document Type

Article

Publication Date

1977

Abstract

A proponent of commercial law codification, Mr. Eaton was one of the first American lawyers to perceive that mere codification of the law did not necessarily produce certainty and lack of discord in the law of commercial transactions. Indeed, in the same article Eaton reveals that of the 1,091 cases that had arisen under the Negotiable Instruments Law, only 704 cited the Act and in the other 387 "the Negotiable Instruments Law [was] ignored by the courts in the decisions, and (so far as the reports show) by the counsel in these cases...." Unlike Bentham, Carter, and Field, each of whom knew the truth about codification as only a true believer can know it, Eaton was willing to test his hypothesis against the actual case experience of the Negotiable Instruments Law. His example has stimulated me to ask how one might measure both the gross and qualitative impact of the recodification of the sales law under article 2 of the Uniform Commercial Code (Code). The only source of empirical information about article 2's operation, at least for the lazy researcher, is the cases. Of course one who looks for the impact of the Code in the reported cases is engaging in almost precisely the same activity that has recently become fashionable in archeological and sociological circles, namely to study a society through its excreta, human or otherwise. Reported cases interpreting the Code are no more than the excreta, for they are disputes that the Code could not adequately resolve. They are important for what they tell us about the Code, where it works well and where it works badly, but in extrapolating from them one encounters the same risk that the archeologist faces when attempting to construct a model of an ancient society from the results of a single digging. Just as those results may represent a unique group in the society being studied, the reported cases may represent a unique and unrepresentative subsample of the Code's operation.


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