With a large
portion of Article 1 in place, we continue with Article 3 and then into the
other Articles of the Code. As I mentioned in an earlier post, there were two
main, unrelenting messages given to our law student commercial law class. We
discussed the first earlier—understand your facts to the greatest degree
possible. The second cardinal rule that
Professor Mentschikoff was relentless about was—‘the answer is always
in the statute.’
That comment
created a classroom discussion one day which resulted in a comment from Ms.
Mentschikoff that was one of the most impactful statement made by any Professor
I ever had, and one I share with you in the hopes it impacts you as it did me.
One of the students asked a question about a Code section and the need for case
precedent in court room. At that point,
Dean Mentschikoff looked at the class and said ‘You’re smarter than the judges. You tell them
what it means.’ I vividly remember my reaction to that statement. I smiled
inside, and loved the fact that this world recognized mind was empowering us
with an amazing message about our capabilities.
I have long
embraced the notion that the human brain is infinite in its capabilities. Nothing novel about the concept, but because
I believed it so passionately and so desperately wanted to improve, I committed
thousands of hours to developing my brain to the best of my ability. One of the key components to that process has
been mentioned previously--the application of resistance, interval and aerobic
training principles to the brain.
Another key
principle, and one which is particularly applicable to the law, is the concept
of frameworks for processing information.
Very briefly, in 1968 I came
to the conclusion that the human brain is reactionary in nature. As information hits the brain it reacts
automatically according to its preprogrammed tendencies whether genetic, intellectually,
or environmentally programmed. I realized and observed that most people,
including myself, were walking around reacting,
one stimulus at a time. Sort of like a pin ball from one bumper to the others,
and periodically, both flaps send you somewhere else for awhile.
I knew that if I was going to make progress
with myself, I would have to take control of the reactionary nature of my mind. The question I faced was how to make that
happen?
The system I
came up with was founded upon a concept that I call ‘Frameworks’. Frameworks are clearly defined and well
thought out philosophical constructs through which to process life. There are two types of frameworks: macro
frameworks and situational frameworks.
Macro frameworks are high level constructs, selected by the participant,
through which to view and process life. The system is based on simple molecular
physics, not a particular philosophy.
Hence, you can select constructs from your world and mind for your
framework, and achieve as positive result as anyone using a comparable system.
The only two
requirements for a framework are that the components be at a very high
philosophical level and preferably be a concept into which several other
concepts have merged. The framework
should be one word if possible. The
second requirement is that the framework be positive in nature. If these two
requirements are met, you have a framework.
A framework should consist of not more than three concepts. I used three
on my original framework which was used all day everyday in every decision and
observation for about nine and one half years.
For anyone interested in the frameworks I used, and how they were
selected, you may locate this at www.pathwaystoexcellence.us, Program Foundation.
The net effect
of utilizing such a system, quite predictably, is to create much greater
control and consistency as to how you view the world and process
information. The very repetitive nature
of using the same framework over and over, thousands of times, tends to
streamline the flow of information into the brain and creates consistency in
decision making if utilized. The consistency starts to create the same
reactionary nature as you had going into the process. However, in this instance, you have created the programming, one
which is very positive in nature, and by selection, ‘high octane’, and which
insures your steady progress. The same system applies from a situational
standpoint, although I didn’t figure that out for decades. This is something that would apply to the
workplace, relationships, in laws—or any situation that is important enough to
merit that attention.
You might be
asking yourself what this has to do with The Uniform Commercial Code? It has quite a lot to do with the Uniform
Commercial Code, and is one of the reasons my time with Ms. Mentschikoff was so
effective. First, the concept of
frameworks was an integral component to how the class was taught. Only in that case, the frameworks were
commercial frameworks—frameworks which made the Code come alive. The message we received, loud and clear, was
simple and powerful—if the answer you get doesn’t square with the overall policies
of the UCC or a particular article, you are wrong. I remember spending hundreds of hours, or
more, trying to decipher the meaning of the text through problems presented in
a horn book almost no one ever heard of or used. The book was comprised of about 400 one to
two paragraph problems followed by a citation to a Code section which was
supposed contain the answer. No
discussion by the author, just the Code section.
As each problem
was being deciphered, the frameworks I used were the policies in place. Dean Mentschikoff’s system in the classroom
was a perfect fit with the system I had already been working on for six years
before I got there. As a result, my
brain was already trained to utilize systems which made the impact of the
approach taken exponential.
I share this
with you going forward so that you can utilize appropriate policies as
frameworks as we work through the substantive provisions of the Code. By way of illustration, a major policy of
Article 3 is the free flow of commercial paper.
Movement through sale, discount, documentary channels and the like. Key here is negotiability. In looking at the requirements for
negotiability, we saw there were terms that would appear to bring negotiability
into question which themselves have been condoned as within the concept. These are regularly used and recognized terms
which have evolved over time, and hence have been statutorily sanctioned. This is consistently with the policy
noted. There are other policies in
Article 3 which will be discussed in connection with relevant sections.
The discussion
of negotiability, and the practical importance of the concept in the commercial
world will continue in the next post.
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