Abstract
Part I of this Article begins by reasserting that central to the idea of property rights is the legal entitlement to remedies that permits a person to exercise dominion over the specific asset or to exclude the exercise of dominion by others. Next, part I examines the essence of a security interest and demonstrates that it is a protected property interest. Part II sets forth a model of priorities that suggests that although property interests should ordinarily be protected by a property rule, there is something special about a security interest, implying the need for greater contingency and justifying a liability rule for their protection. Although security interests may be contingent, they should rarely be subject to an uncompensated taking. Part III surveys the development and present status of the lapsed perfection doctrine under Article 9 and suggests an alternative formulation that is intended to reflect the valid insights of the model. This part concludes that principles of compensation provide an appropriate guide for determining issues of priority. Finally, part IV briefly discusses other contexts in which application of the model might be helpful. This Article concludes that although subordination of secured claims against a variety of other claimants is inevitable, conflicts must always be resolved by a continual elaboration of the nature of the competing interests. The statutory taking of a security interest without compensation is permitted, but only when the benefits are extremely high relative to the loss of property that results.
Document Type
Article
Publication Date
1995
Recommended Citation
David Frisch, The Implicit "Takings" Jurisprudence of Article 9 of the Uniform Commercial Code, 64 Fordham L. Rev. 11 (1995).