Aesthetics of Commercial Law Domestic and International Implications

• Author: Heather Hughes
• Position: Assistant Professor, Florida International University College of Law
• Pages: 690-749

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Assistant Professor, Florida International University College of Law; J.D. cum laude, Harvard Law School; B.A. University of Chicago. I thank Jean Braucher, Pierre Schlag, Jorge Esquirol, David Carlson, Ediberto Romn, Hannibal Travis, Jos Gabilondo, Ugo Mattei, Daniel Farnbach, and the faculties at FIU College of Law; American University, Washington College of Law; and University of San Francisco Law School for many thoughtful comments, and Brooke Terpening for excellent research assistance.

Copyright 2007, by LOUISIANA LAW REVIEW.

Judged by its reception in the enacting legislatures, the [Uniform Commercial] Code is the most spectacular success story in the history of American law.

-James J. White & Robert S. Summers ¹

[W]hat becomes global is not so much the . . . nitty-gritty American law, but rather its spectacular aspects. It is not efficiency but the spectacle of efficiency . . . .

-Ugo Mattei ²

Introduction

Rationality cannot explain current levels of commercial activity and forms of commercial law. How can continuously expanding access to credit be efficient when staggering environmental costs of over-development seem obvious?³ A turn to aesthetics directs attention to the non-rational, pre-reflective elements at play in commercial law. It is crucial to consider these Page 691 suppressed elements as legal professionals applaud U.S. commercial law's facilitation of commercial activity here and superiority for attracting investment abroad.⁴

Aesthetics⁵ affect⁶ legal actors' expectations and uses of commercial law.⁷ Certain aesthetics of commercial law in the Page 692 United States⁸ privilege commercial actors by deterring consideration of legal limitations on commercial activity that could be socially desirable.⁹

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Problematic trends and features of commercial law take two different forms. First, there are types of commercial transactions encouraged by U.S. commercial law that raise both fairness and efficiency concerns. Such transactions include full priority secured lending¹⁰ and asset securitization.¹¹ Second, the sheer size and 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 perpetually escalating levels of commercial activity.

These problematic aspects of commercial law invoke very difficult questions. How do we determine what levels and forms of commercial activity are optimal or good? If commitment to a more balanced or tempered approach to commercial activity were possible, who would be helped, who would be harmed, and how? Aesthetics of commercial law deter engagement with these questions by informing certain pre-reflective dispositions that enable common refrains against reform, such as: Any reduction in levels of commercial activity will most harm labor and the poor.¹²

Much of contemporary commercial law scholarship in the United States engages controversial questions in commercial law with economic modeling or with empiricism. Arguments about the efficiency of statutes encouraging secured lending or asset securitization, for example, have met unanswered (and perhaps unanswerable) empirical questions about the effects of these transactions on third parties. Now, prominent commercial law scholars pursue answers to empirical questions about the distributive consequences of U.S. commercial law. Empirical findings or successful economic models, however, do not automatically become fruitful bases for law reform. These findings encounter deep-running, visceral expectations of commercial law as an engine for economic development. Our collective, visceral expectations for commercial law are grounded in aesthetics.

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Karl Llewellyn, a central architect of the Uniform Commercial Code ("UCC"),¹³ wrote in 1942 that "law out of harmony with life . . . cannot have right beauty."¹⁴ Remarks that cast the UCC in aesthetic terms-that speak of its beauty and logic-appear throughout its history.¹⁵ This article is a twenty-first century take on U.S. commercial law that brings together current realities in the commercial world and contemporary approaches to legal aesthetics.

The lens of aesthetics offers insights into current formulations and trends in commercial law that analyses of the UCC drafting process or the technical complexity of the Code or ingrained ideological tilt (away from distributive justice) do not capture.¹⁶ This critique has a political valence in that it expresses concern for distributive and environmental justice and a need for legal limitation on certain types of commercial activity. However, the aesthetics of commercial law themselves do not necessarily reflect any particular political leaning. The contention that certain aesthetics of commercial law privilege commercial actors is a statement about consequences of contemporary deployments of commercial law aesthetics, not about ideological bias inherent in these aesthetics. Commercial law itself and lawmakers, scholars, and practitioners who work in the field exhibit certain aesthetics that are constitutive of commercial law on a fundamental level. These aesthetics inform our collective sense of possibilities for commercial law before the questions of distributive justice or drafting process or technical feasibility even come into play.

The question of which aesthetics, and which approaches to commercial law, are the right ones or the best ones is not answered Page 695 here.¹⁷ This is not a presentation of "dominant" aesthetics of commercial law, made with the hope of presenting some better, "alternative" aesthetics. The aesthetics of commercial law exist and are too non-rational to be susceptible to reasoned arguments for change. Understanding aesthetics of commercial law, however, is essential to recognizing and resisting visceral expectations that undermine meaningful engagement with tough questions about optimal levels and forms of commercial transactions. In other words, aesthetics cannot be reformed, but consequences of certain aesthetics can be altered in the process of considering the value of different approaches to commercial law.

Part I describes how this article uses aesthetics. Part II considers an energy aesthetic,¹⁸ a grid aesthetic,¹⁹ and an instrumentalist aesthetic²⁰ to assess how we apprehend commercial law and its possibilities.²¹ Part III presents aesthetics of commercial law in relation to sublimity to describe simultaneous awe and fear surrounding large-scale commercial activity.²² Part IV considers consequences of aesthetics of commercial law in the contexts of (1) common refrains against reform of controversial aspects of this law, and (2) the spread of a form of imperial law in which the export of U.S. commercial law models is complicit.

I Aesthetics And Law

Some scholars contend that the field of aesthetics addresses form and that content is irrelevant; others reject the notion that form and content can be separated. This piece views the form and the content of commercial law as inseparable in understanding the aesthetics of this law.²³ Similarly, some view aesthetics as form Page 696 only and others view aesthetics also in terms of effects (such as sublimity). This work looks to effects of commercial law- including some sublime effects-in its understanding of both the aesthetics of commercial law and aesthetic consequences of commercial law. The purpose, here, is to excavate suppressed, constitutive elements of U.S. commercial law-not to maintain fidelity to a particular branch of philosophy.

The question arises: Is it legal aesthetics that privilege commercial actors and not politics or ideology?²⁴ Politics and ideology strive for coherence of normative commitments or values. The pre-reflective preferences or vantage points in commercial law that this article presents are best captured by aesthetics in that they Page 697 precede and defy the kinds of attempts at reasoned justification that are the hallmark of ideological or political commitments.

Scholarship on law and aesthetics has taken a variety of forms.²⁵ The scholarship on law and aesthetics that is most relevant to this article treats law itself as an aesthetic phenomenon.²⁶ In a discussion of critical legal studies and images of law, Adam Geary writes: "Just as the image represents and distorts reality by making what is fluid appear fixed and Page 698 unchanging, law is criticized as a reification of the world."²⁷

Desmond Manderson finds that to engage the aesthetic is to consider what the law actually means to us and how it does so. He writes:

It is part of what Derrida calls the "white [transparent] mythology" of the West to characterize its law as being purely logical and without those mythic and mystic elements which exist only in more "primitive" societies . . . . The task of aesthetics is to explore and reclaim these elements . . . from the interstices and margins of the law.²⁸

Building on Geary and Manderson, Pierre Schlag, in The Aesthetics of American Law²⁹ ("The Aesthetics"), describes law as an aesthetic enterprise.³⁰ Schlag presents the aesthetics of law, meaning the recurrent forms that shape the creation, apprehension, and identity of law.³¹ He writes: "Legal aesthetics are important because they help to constitute the law and its possibilities in different ways. Often these constitutive effects occur at a prereflective level."³²

Schlag presents in The Aesthetics four basic legal...