Federalism, Technology, and Uniform State Legislation: Reflections on the 127th Uniform Law Commission Annual Meeting

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.

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Federalism, Technology, and Uniform State Legislation: Reflections on the 127th Uniform Law Commission Annual Meeting

Report from the Criminal Records Accuracy Drafting Committee

The Criminal Records Accuracy Drafting Committee concluded its final in-person meeting in preparation for the act’s second reading at the ULC annual meeting in San Diego. The act requires criminal justice agencies to use biometric information to accurately identify individuals, maintain accurate records, report dispositions of arrests and charges, and provides remedies by which an individual can seek correction of their criminal history record. By complying with the requirement that they report the disposition of arrests and dispositions of cases, criminal justice agencies will greatly reduce, if not eliminate, a major cause of inaccurate criminal records. It also provides an important measure to guard against mistaken arrests by creating a mistaken identity registry.  Persons whose name or identifying characteristics are similar to that of a person who has a criminal history record may apply to have their names included in the mistaken identity registry and receive a document which they can use to demonstrate that they are not the person with a criminal history record.

Robert J. Tennessen, Chair
Drafting Committee on Criminal Records Accuracy

Report from the Criminal Records Accuracy Drafting Committee

Update from the Drafting Committee on an Electronic Registry for Residential Mortgage Notes

The Drafting Committee on an Electronic Registry for Residential Mortgage Notes met March 17 and 18, 2017, in Bethesda, Maryland.  The primary issue for the Drafting Committee was whether to move forward with drafting a state electronic mortgage note registry at this time or to continue for now to monitor and provide comment on the Federal Reserve Bank of New York proposal for a federal electronic registry for residential mortgage notes.

The Committee was assisted in its deliberations by four very informative presentations. Mr. Bill Beckmann, CEO of MERSCORP Holdings, Inc., gave a presentation regarding MERSCORP’s electronic registries, MERS System and MERS eRegistry.  Corinne Milliken, Esq., an attorney with the New York Federal Reserve, presented an overview of the latest draft of the New York Federal Reserve’s proposed National Mortgage Note Repository Act of 2017.  Mr. Tod McDonald, Co-Founder, COO, and Head of Partnership for R3, LLC,  and Isabelle Corbett, Esq., Senior Counsel and Director of Regulatory Affairs for R3,  gave a presentation on distributive ledger technology and its possible use with regard to an electronic registry.  Eric Fish, Esq., Senior Vice President for Legal Services, Federation of State Medical Boards, gave a presentation on development of an interstate compact among the states.  The Committee is very grateful to all of the presenters for taking the time to share their knowledge with the Committee.

The Committee also received input from stakeholders, including representatives of the FHFA, Fannie Mae and consumer interests, and from its ABA Advisors, Prof. James Durham and Barry Nekritz, Esquire.  After a thorough discussion, the Committee had a good idea of what might be the likely structure and contours of a state electronic mortgage note registry.  The consensus of the Committee, however, based on the input it received, was that it was not inclined to begin drafting of a state electronic mortgage note registry at this time.  Instead, the Committee agreed that for now it will continue to monitor and comment upon the New York Federal Reserve’s proposed National Mortgage Note Repository Act as that draft act moves forward through the Federal Reserve’s vetting process and is presented for consideration by Congress.

The Committee also provided Ms. Milliken with its comments on the latest draft of the proposed National Mortgage Note Repository Act.

H. Kathleen Patchel and Carlyle C. Ring, Co-Chairs
Drafting Committee on Electronic Registry for Residential Mortgage Notes

Update from the Drafting Committee on an Electronic Registry for Residential Mortgage Notes

Update from the Regulation of Virtual Currency Businesses Act Drafting Committee

The Regulation of Virtual Currency Businesses Act drafting committee met for its final drafting committee meeting in Chicago on March 3 and 4, 2017. The focus was on deciding a number of open issues and polishing the act for its final reading before the Conference this summer in San Diego. One major change occurred when the drafting committee, in order to clarify the application of commercial law rules, particularly those of UCC Article 9, to virtual currency transactions, voted to mandate the application of UCC Article 8 treating virtual currency as a financial asset. The act will be worked on by the Style Committee at its May meeting, and simultaneously will be distributed to the committee roster for comments, before preparing the draft that will be submitted to the annual meeting in San Diego.

Fred Miller, Chair
Drafting Committee on Regulation of Virtual Currency Businesses Act

Update from the Regulation of Virtual Currency Businesses Act Drafting Committee

2016 Drafting Season is Over

The 2016 drafting committee season is now over. On December 2nd and 3rd, I attended the meetings of our Uniform Commercial Code Committee and of the Permanent Editorial Board for the Uniform Commercial Code in Philadelphia.

philly-sunset
Sunset over Philadelphia

These Committees continue to shepherd the signature work of the Conference, the Uniform Commercial Code. Under the leadership of Commissioner Carl Bjerre of Oregon, work continues on the identification and republication of an “Official Text” of the Code. The Committees also reviewed the present status of the articles of the Code to assess whether the time for modernization or revision has arrived. Have you ever considered whether we need to continue UCC Articles 10 and 11, the transitional articles? Well, your Committees have. (And so far the answer is still, “yes.”)

We also reviewed the status of the Federal Reserve Bank of New York’s effort to draft a federal statute for a national mortgage registry and of our complementary efforts to modernize UCC Articles 1, 3 and 9 to provide for electronic residential mortgage notes and for a state law based residential mortgage note registry.

On Saturday December 3rd, the last meeting of the season, the Joint Editorial Board for Uniform Trust and Estate Acts occurred in Chicago. Since the Conference does not yet own a Star Trek-style transporter machine, I did not attempt to make that meeting. (A transporter machine for the ULC heads my Christmas wish list!).

Speaking of meetings and travel, your leadership team, Executive Committee Chair Anita Ramasastry, Vice-President Melissa Hortman, Treasurer Tom Buiteweg, Secretary Dan Robbins, Division Chairs H. Lane Kneedler, Cam Ward, Bill Barrett, Nora Winkelman, Pam Bertani, and John McGarvey, together with Liza Karsai and members of the ULC staff, covered 10 different drafting or editorial board meetings, in Washington, Chicago, Philadelphia, Minneapolis, and Louisville during the second half of this year. They helped to coordinate the work of our many committees. Thanks to all of them and to the Committee chairs, reporters and members for advancing our work.

Your leadership team is now preparing the last details (primarily budgetary) before the Scope and Program and Executive Committees meet in January in Point Clear, Alabama at the ULC’s midyear meeting. Then it is on to our spring drafting committee meetings and the 2017 Annual Meeting in San Diego, July 14 through 20, 2017. Although it is snowing as I write, I can almost feel the warm Southern California sun!

Rich

Richard T. Cassidy, President, Uniform Law Commission

2016 Drafting Season is Over

Model Veterans’ Court Act Drafting Committee Update

The Model Veterans’ Court Act Drafting Committee met for a third time on October 14th and 15th, 2016, in Washington, DC.  The drafting committee focused on addressing concerns that were raised this past summer at the ULC Annual Meeting in Stowe, Vermont.  Two of the biggest issues that the drafting committee is currently working through are who is eligible to be admitted into a veterans’ treatment court and prosecutorial discretion of individuals admitted into a veterans’ treatment court.  The drafting committee made further progress in drafting language that will properly balance how these issues are treated.  The act itself will not create a veterans’ treatment court, but rather enables local jurisdictions to create a veterans’ treatment court docket.  The drafting committee will seek the permission of the Uniform Law Commission Executive Committee to have the name of the model act revised to be named the “Model Veterans’ Treatment Court Act” to further reflect the act’s focus on the treatment court model, similar to drug treatment courts. The drafting committee continues to work with stakeholders in the domestic violence community to refine the drafted language in order to appropriately address crimes of domestic violence.

The meeting was attended by Justice for Vets and the National Center for State Courts whom have been instrumental in helping the drafting committee craft the model act.  The drafting committee expects to meet again this coming spring before the model act undergoes a final reading at the Annual Meeting this summer in San Diego, California.  In the interim, the drafting committee plans to hold one or more conference calls in order to fine-tune the act language.  Drafting committee members are working cohesively in making important policy decisions in the draft act and the draft is rounding into good shape as it wraps up its final year of drafting.

Harry L. Tindall, Chair, Model Veterans’ Court Act

Model Veterans’ Court Act Drafting Committee Update

Report from the Annual Meeting of the Uniform Law Conference of Canada

Becky and I are just home from Fredericton, New Brunswick. Together with International Legal Developments Committee Chair Bob Stein, we represented the Uniform Law Commission at the Annual Meeting of the Uniform Law Conference of Canada.

ULCC 2016 Meeting 1
Sunset over the St. John’s River

Our Canadian colleagues are a hospitable bunch, and they made us feel right at home. They do work that is very similar to ours, but they do it in a different way. As befits the smaller population of their country, they are a considerably smaller group than we are. For the bulk of their meeting, they are divided into two groups, a Civil Section and a Criminal Section. This makes particular sense for them, as in Canada, Criminal Law is essentially federal in nature. Most of the work of the Criminal section is considering adopting resolutions recommending changes in criminal law to the Canadian federal government.

Both sections seem to work extensively from white papers prepared by very small working groups.

Even on the Civil Side, things look very different. Like us they are drafting uniform and model acts. The Civil Section considers and adopts resolutions on policy principles that professional drafters convert into statutory language for consideration by the provincial and territorial parliaments.

And, of course, all this work is taking place in two languages. One truly feels an international flavor when the headphones come out for simultaneous translation.

In both Sections, debate seemed sedate by our standards, even when disagreements were sharp. Perhaps we could learn something from that.

Although the methods of work are quite different, I was struck by the fact that both organizations grapple with many of the same legal issues and underlying human problems. Let me give you a few examples.  On Monday, the Civil Section discussed the Uniform Access to Digital Assets by Fiduciaries Ac. The next day, the Civil Section spent considerable time on Domestic Arbitration. Then I went to the Criminal Section, which was discussing treatment courts, (which they call wellness courts) targeted at first nations’ peoples. They went on to discuss the extent to which persons convicted of violating their criminal laws against the distribution of intimate images should be required to register as sex offenders.

All these topics no doubt sound familiar to you, as we have done, or are doing, work on the same problems.

Back in the Civil Section, the members finished work ironing out the coordination of French and English texts on a project that we completed jointly, the Uniform Recognition of Substitute Decision Making Documents Act.

I addressed a joint session of both sections, and reported in some detail on the current status of our work.

Both organizations obviously value the relationship. The nature of our next cooperative effort is not yet clear, but I feel confident that a new chapter of our long history of collaboration and cooperation is just around the corner.

Rich

Richard T. Cassidy, President, Uniform Law Commission

ULCC 2016 Meeting 2
ULCC members at their annual East vs. West Softball Challenge
ULCC 2016 Meeting 3
Former ULCC President Luc Labonte presents the softball trophy to the captain of the victorious West team.
Report from the Annual Meeting of the Uniform Law Conference of Canada