By Commissioner V. David Zvenyach
(This blog post was originally posted at https://medium.com/@vdavez/federalism-technology-and-uniform-state-legislation-reflections-on-the-127th-uniform-law-2d60904a6570)
A feature of our Constitution is that powers are distributed between the federal and state governments. When new technologies emerge, this feature (called federalism) can sure look like a bug: each state might adopt different rules and regulations, making things expensive and complicated, and the alternative — federal politics — can be uniquely… messy. Inevitably, when new technologies arrive, there are calls for Congress or the President to act, to DO SOMETHING, and when they do, it can seem like everyone loses. There’s an alternative path, though, albeit less well-trodden: cooperative action by the states.
In this post, I describe the role of the Uniform Law Commission (“ULC”) in helping preserve federalism while advancing technological innovation. (Disclosure: I’m a member of the Uniform Law Commission, as a delegate from the state of Wisconsin, and a member of the ULC’s Technology Committee. All views in this blog post are mine alone, and do not reflect those of the state of Wisconsin, the ULC or its committees, or anyone else.)
Last month, I participated in the 127th annual meeting of the ULC, in which representatives from among the states gathered in Louisville, KY, to debate proposed uniform laws to be adopted by those states.
If you haven’t heard of the ULC, don’t be embarrassed. Most people, including most lawyers, haven’t heard of it. To quote Justice Sandra Day O’Connor in a foreword of Forming a More Perfect Union:
“American law” actually consists of 50 separate and potentially differing bodies of state law, co-existing with federal law. The fact that most Americans are unaware of the complexity of our legal system is due in some measure to the great success of the Uniform Law Commission.
Cool, right?
What is the ULC?
What is the ULC, then? Well, here’s what the ULC website has to say about it:
The Uniform Law Commission (ULC, also known as the National Conference of Commissioners on Uniform State Laws), established in 1892, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.
ULC members must be lawyers, qualified to practice law. They are practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state governments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical.
I.e., we’re a bunch of lawyers from all over the US, appointed by our state governments to gather together and figure out how to draft laws that should be uniformly adopted by all of the states. We are nonpartisan, and value diversity of perspectives and ideas.
We meet once a year for a week (including a full Saturday and a half Sunday!), this year in Louisville, KY, and we hash out proposed uniform acts. Almost everyone who attends a meeting of the ULC is immediately struck by how deliberate it is. It’s awesomely nerdy and wonky. It’s also intensely tedious; we go line-by-line through the proposed legislation, twice, after having gone through around half a dozen committees, and we debate until we have an act that is “enactable” across the US. We take this consensus and uniformity stuff seriously.
You may have heard of other organizations that are known for adopting model legislation, such as the American Law Institute, American Legislative Exchange Council, even subject-matter-specific associations. What sets the ULC apart from those organization is that we are not an industry association or interest group; we are appointed pursuant to each state’s law, and therefore our interest is the state’s interest in uniformity.
Technology and Uniformity
This year, more than in years past, it really hit home for me that the impact of the internet and digital technologies has created a new urgency for the ULC’s role in promoting uniformity of state legislation.
During this year’s meeting, we debated a number of cutting-edge legal issues on the floor:
- What are the obligations of virtual-currency businesses that control their customers’ virtual currencies, and should virtual currencies be available as collateral for commercial loans?
- Should “deepfakes” be included in the definition of an “intimate image” for purposes of civil remedies against revenge porn?
- How should publicly available criminal records be published and corrected?
- How should notaries public perform notarial acts (love that!) using audiovisual communication technologies?
- Should individuals be allowed to have a digital last will and testament?
- How should vehicles with automated driving systems be regulated across state lines?
- What tort laws should apply to the use of drones?
These issues, as you can tell, involve novel and challenging policy questions. Questions where states could reasonably disagree and diverge. And where such divergence would create cost, complexity, and slow innovation.
In my estimation, it’s precisely because reasonable disagreement is possible that the ULC can play an important role. Even if you have a specific viewpoint about any of these questions, the ULC’s commitment to uniformity compels policy choices that allow diverse state legislatures to agree. The same bill must be passed in Alabama and California and Texas and Connecticut.
That’s tough, tough work. Especially when the technologies themselves are emergent. And often times, in the absence of such consensus, Congress is called upon to step in and legislate for the whole country. In some cases, that’s not such a terrible thing, but there are always tradeoffs. For example, if Congress steps in, it means that states are often preempted from experimentation and innovation in policymaking, making technology innovation less achievable over time. Similarly, even though Congress can achieve finality on a subject, that doesn’t imply that Congress has achieved consensus.
Against that backdrop, the ULC has a uniquely successful history of developing uniform laws related to emergent technologies.
For example, less than a year after the first successful human heart transplant, the ULC adopted the Uniform Anatomical Gift Act (1968), which set the basic framework for organ donation in the United States. Think about it: in 1967, there was no legal construct to handling “ante-mortem gifts” of body parts. Instead, the rules were a hodgepodge of common-law rules that varied state to state. It would be totally unworkable to allow for organ transplants to occur if physicians needed to hire an attorney before performing the transplant. Today, in part because of the work of the ULC, there are over 100 million organ donors in the US. And the ULC helped ensure that there aren’t different rules for organ donation across state lines.
Similarly, in 1999, the ULC adopted the Uniform Electronic Transactions Act, which “establishe[d] the legal equivalence of electronic records and signatures with paper writings and manually-signed signatures, removing barriers to electronic commerce.”
If it wasn’t for UETA, you’d have a lot more paper, a lot more friction, more uncertainty, and more cost when it comes to commerce. Meanwhile, UETA’s stood the test of time. Today’s “hype” technology is blockchain-based smart contracts. And, despite almost 20 years of new technology developments, UETA is still flexible enough to cover innovative new technologies and business models, including smart contracts.
From past to prologue?
It may seem strange that the ULC, an organization that was created in 1892 and is entirely composed of lawyers, would be well situated to address the policy implications of new technologies. But we have a relatively strong track record of doing so. We may be lawyers, but we care about getting it right.
To be perfectly honest, I’m not even sure why the ULC is so capable of doing it well. My hypothesis is that technology is never really neutral, that it always develops against a regulatory backdrop. So finding true consensus that can advance the technology but balances public concerns actually helps move both forward. Again, though, this is speculative as to causation.
What I can say is that the ULC has done well in the past. And, based on last month’s debates on the floor, my assessment is that ULC is capable of getting it mostly right in the future.
That’s important, because, in the coming years, the ULC will likely continue to tackle new challenges presented by emerging technologies. This year, for example, the ULC executive committee approved a new study committee on Online Privacy Protection. Whatever you may think of GDPR, it’s abundantly clear that — if there is to be an “American law” version — you wouldn’t want more than 50 different versions. And frankly Congress has a less-than-stellar track record when it comes to online privacy legislation.
To borrow again from Justice O’Connor:
A federal system like ours cannot endure if uniformity of law is continually imposed on the states by the national government. It would mean that federal courts, not states courts, would be the interpreters of the legislative design. With a uniform law passed by all the states it is otherwise; state courts retain their authority to interpret what the state uniform law means.
When the ULC is at its best, through hard work and interstate cooperation we can avoid unnecessary complexity inherent in our federalism. No one can know what the future may hold for new technologies and laws; if history is a guide, it should be deeply encouraging that the ULC is up to the task.
ULC Updates 