Imperial B Hilton San Francisco and Towers Ballroom Level
Joint Program of Sections on Contracts and Legislation Scott J. Burnham, University of Montana, and Chair and Program Chair, Section on Contracts John F. Manning, Columbia University, and Chair, Section on Legislation
Perspectives On The Uniform Laws Revision Process
Moderator:
Linda J. Rusch, Hamline University
Speakers:
Neil B. Cohen, Brooklyn Law School Henry Deeb Gabriel, Loyola University, New Orleans Gail K. Hillebrand, Senior Attorney, Consumers Union, San Francisco, California [View Program Material] Lance M. Liebman, Columbia University Frederick H. Miller, University of Oklahoma Robert E. Scott, University of Virginia Richard E. Speidel, Northwestern University
For nearly 60 years, the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL) have labored to draft and update uniform laws, including the Uniform Commercial Code. In 1987, work began on the first major revision of U.C.C. Article 2, initially guided by Professor Speidel as Reporter and Professor Rusch as Associate Reporter.
The ALI approved a draft in the spring of 1999. At NCCUSL's annual meeting in July, however, the NCCUSL leadership withdrew the draft, concluding that industry opposition to some sections, particularly those involving warranties and the rights of remote parties, cast doubt on the prospects for uniform adoption by the states, for which NCCUSL is responsible. Reporters Speidel and Rusch then resigned.
In an attempt to create a draft of Article 2 that would have broad support, NCCUSL and the ALI appointed a new Drafting Committee, with Professor William Henning of Missouri-Columbia as Chair and Professor Gabriel as Reporter. It is unlikely that final approval of this draft will occur, if it occurs at all, until the summer of 2001.
In this article, "The Uniformity Norm in Commercial Law: A Comparative Analysis of common Law and Code Methodologies" published in The Jurisprudential Foundations of Corporate and Commercial Law (Cambridge Univ. Press 2000), Dean Scott…" asserts that these events were predictable:
The work that Alan Schwartz and I have done on the political economy of the ALI and NCCUSL predicts that efforts by Code proponents to pursue the goal of formal uniformity will inevitably lead, in the forthcoming revisions to Article 2, to even greater reliance on vague statutory language in lieu of the bright line rules that stimulate interest group opposition. In turn, crafting statutory provisions in vague language delegates considerable law making discretion to courts. Reliance on such vague and open ended statutory language is not a product of a conscious choice of standards over rules, but rather is a product of the interactions between interest group opposition and the interests of Code proponents (mostly the academic reporters and other "reformers") in getting codifications enacted.
Is Dean Scott's assessment correct, or is meaningful revision possible? This is an opportune time for a critical look at the Uniform Law process, both in general and in the particular context of the Article 2 revision.
The initial speaker, Professor Speidel, served from 1987 to 1991 as Chair of the Permanent Editorial Board (PEB) Study Group that recommended that a drafting committee be appointed to revise Article 2, and served as Reporter for the Article 2 Drafting Committee from 1991 until his resignation in 1999. Commentators include Professor Miller, Executive Director of NCCUSL when the Article 2 draft was withdrawn; Professor Liebman, Director of the ALI when these events took place; Professor Gabriel, the Reporter who succeeded Professor Speidel on the Article 2 Drafting Committee; Professor Cohen, Research Director for the PEB of the U.C.C. and Reporter for the Article 1 revision; Ms. Hillebrand, a senior attorney for the Consumers Union who has been a consumer advocate during the revision process; and Dean Scott, whose scholarship has been critical of the Uniform Laws process. Professor Rusch, the Associate Reporter of the Article 2 Drafting Committee until her resignation in 1999, will moderate. Questions and comments from the floor will be welcome following the presentations.