Uniform Laws: When Do They Apply?

In the United States, uniform laws are proposed state laws drafted and approved by the Uniform Law Commission (ULC), also known as the National Conference of Commissioners on Uniform State Laws (NCCUSL). The ULC is a non-profit, American unincorporated association established in 1892 to provide U.S. states with well-researched and drafted model acts to bring clarity and stability to critical areas of statutory law across jurisdictions. Uniform laws are distinct from interstate compacts and are intended to facilitate the enactment of identical or similar laws by separate states. While the ULC has no direct legislative power, and uniform acts only become laws when enacted by state legislatures, over 100 uniform acts have been passed, including the Uniform Commercial Code, Uniform Probate Code, and Uniform Child Custody Jurisdiction and Enforcement Act.

The Uniform Law Commission

In the United States, a uniform act is a proposed state law drafted and approved by the Uniform Law Commission (ULC), also known as the National Conference of Commissioners on Uniform State Laws (NCCUSL). The NCCUSL is a body of private and government lawyers, state and federal judges, and law professors who are typically appointed by state governors. It was established in 1892 upon the recommendation of the American Bar Association. The ULC consists of approximately 350 commissioners, each appointed by the government of a U.S. state, the District of Columbia, Puerto Rico, or the U.S. Virgin Islands. Every ULC commissioner must be an attorney, and commissioners often concurrently serve as legislators, judges, or legal scholars.

The ULC aims to provide U.S. states with well-researched and drafted model acts to bring clarity and stability to critical areas of statutory law across jurisdictions. It promotes the enactment of uniform acts in areas of state law where uniformity is desirable and practical. The ULC has no direct legislative power, and uniform acts become laws only when enacted by state legislatures. The ULC has drafted more than 300 uniform laws on numerous subjects and in various fields of law, including commercial law, family and domestic relations law, estates, probate and trusts, and real estate.

The ULC's process for drafting and promulgating proposed uniform laws is collaborative and thorough. Proposals for a new uniform act or model act are considered by the Committee on Scope and Program, which welcomes suggestions from various sources, including the organised bar, state government entities, private interest groups, and private individuals. If a recommendation to create or amend an act is approved, a Drafting Committee is selected, and an expert in the field is hired as a reporter/drafter. Draft acts are submitted for initial debate by the entire Commission at the ULC's Annual Meeting, and commissioners may offer amendments and corrections. Once an act is approved by the Committee of the Whole, it is presented for a vote by the states, with each of the 53 state and territory delegations casting one vote. The proposed act must be approved by at least 20 jurisdictions and a majority of the states and territories present. At this point, the act is officially promulgated for consideration by the states and territories, with legislatures urged to adopt uniform acts exactly as written to promote uniformity in the law.

The ULC's work has significantly simplified the legal landscape for businesses and individuals by providing consistent rules and procedures across jurisdictions. The ULC's notable uniform acts include the Uniform Commercial Code, the Uniform Anatomical Gift Act, the Uniform Child Custody Jurisdiction and Enforcement Act, and the Uniform Interstate Family Support Act. The ULC has also experienced some failures, such as its efforts in the 1970s to reform U.S. real property law, which did not result in the enactment of most of its proposed Uniform Acts on the subject.

Federalism in the United States

In the United States, federalism is the constitutional division of power between state governments and the federal government. The country's founding documents, including the Tenth Amendment of the United States Constitution, make it clear that powers not delegated to the federal government are reserved for the states. This system of government was designed to strike a balance between national and local needs, with certain powers designated to the central government and others specifically reserved for the states.

The movement towards federalism gained momentum following Shays' Rebellion of 1786-1787, an armed uprising in Massachusetts caused by economic hardship and the confederal government's inability to effectively manage the debt from the American Revolutionary War. The Annapolis Convention in 1786 brought together delegates from several states to discuss reversing protectionist trade barriers, and this led to the Constitutional Convention in Philadelphia in 1787, where the structure and limitations of federalism were debated and eventually ratified in the Constitution.

The interpretation and application of federalism have evolved over time, with periods of dual federalism, cooperative federalism, and New Federalism. Dual federalism, exemplified by the Supreme Court cases of the early 19th century, sought to define the dividing lines between the federal and state governments, with cases like McCulloch v. Maryland, Gibbons v. Ogden, and Marbury v. Madison expanding the power of the national government. Cooperative federalism, on the other hand, interprets the Tenth Amendment more loosely, viewing the federal and state governments as "partners" with shared responsibilities. This era saw an expansion of federal power into areas such as banking, commerce, and labour relations.

New Federalism, which emerged in the late 20th and early 21st centuries, has been characterised by a gradual return of power to the states. This period saw the introduction of block grants, giving state governments more discretion in spending federal funds. The anti-commandeering principle, established in cases like New York v. United States (1992), affirmed that the federal government cannot require states to adopt or enforce federal law, giving states more autonomy in certain areas.

Uniform acts in practice

Uniform acts are proposed state laws drafted and approved by the Uniform Law Commission (ULC), also known as the National Conference of Commissioners on Uniform State Laws (NCCUSL). The NCCUSL is a body of private and government lawyers, state and federal judges, and law professors who are typically appointed by state governors. It was established in 1892 upon the recommendation of the American Bar Association to promote uniformity in state laws. The NCCUSL does not have any direct legislative power, and uniform acts become laws only when enacted by state legislatures.

Uniform acts are collaboratively written model laws intended to facilitate the enactment of identical or similar laws by individual states. They cover a range of subjects, including commercial, business, contract, tort, and family law. Some notable examples of uniform acts include the Uniform Commercial Code, Uniform Probate Code, Uniform Trust Code, Uniform Partnership Act, and Uniform Child Custody Jurisdiction and Enforcement Act. To date, there are more than 100 uniform acts, which the NCCUSL periodically updates.

A state may adopt a uniform act as written by the NCCUSL or with modifications. However, significant changes can obstruct the purpose of uniform acts, which is legal harmonization. As a result, individuals doing business in different states must always check the local law to ensure compliance with the relevant uniform act. For example, in Payne v. Stalley (1995), a lawyer relied solely on the Uniform Probate Code without checking the relevant Florida statute and missed a filing deadline for a multimillion-dollar claim.

The greatest successes of the uniform law approach have been in commercial and business law. The Uniform Commercial Code, for instance, is now in effect in some version in nearly all U.S. jurisdictions. However, achieving complete uniformity across all states has proven challenging due to variations in prior law and local conditions. Despite this, uniform acts play a crucial role in promoting consistency and predictability in the law, especially when legal issues transcend state lines.

The drafting process

The ULC is composed of distinguished lawyers, judges, legislators, and law professors, who are tasked with promoting uniformity in state laws. They work through committees that meticulously craft successive drafts, aiming for clarity and consistency. These drafts undergo rigorous scrutiny and are subject to revisions based on feedback and changing circumstances. The annual meeting of the ULC plays a pivotal role in shaping the drafts, with transcripts of the proceedings providing valuable insights into the drafters' intentions and the context surrounding the law's creation.

The archives of the ULC, housed at the Tarlton Library at the University of Texas, offer a wealth of information. They include committee papers and working materials used during the drafting process. Additionally, the NCCUSL also maintains an archive of publications, providing access to approved successive drafts, handbooks, proceedings of the annual meetings, and transcripts of discussions. These resources are invaluable for understanding the evolution of a uniform law and the rationale behind its provisions.

Once a uniform law is approved by the ULC, it is then proposed to the state legislatures for enactment. The states have the autonomy to reject, accept, or modify the proposed law. However, significant modifications can hinder the primary objective of uniform acts, which is legal harmonization across states. This underscores the importance of careful drafting to ensure that the enacted laws align with the goal of uniformity and effectively address the legal issues at hand.

The future of uniform laws

The Uniform Law Commission (ULC), also known as the National Conference of Commissioners on Uniform State Laws (NCCUSL), has been working towards standardising laws across the United States since its formation in 1892. While the ULC has been successful in some areas, such as commercial and business law, the very nature of the US federal system, with its division of powers between federal and state governments, has made the goal of uniformity elusive.

The ULC has no direct legislative power, and the future success of uniform laws will depend on their adoption by state legislatures. This has proven challenging, as states often make changes to accommodate prior law and local conditions, resulting in multiple versions of uniform laws. Additionally, the ULC itself sometimes revises laws, creating further variance. As a result, uniformity has been difficult to achieve, with roughly half of the ULC's proposals never being adopted by a single state.

However, there are reasons to be optimistic about the future of uniform laws. The ULC's legislative efforts have been influential, and many have become law. For example, the Uniform Commercial Code, drafted in 1952, is now in effect in some version in nearly all US jurisdictions. More recently, the Uniform Fiduciary Access to Digital Assets Act (2014-15) has been adopted in at least 46 states.

The ULC's ability to influence state legislatures will be key to the future of uniform laws. While the ULC has no direct legislative power, it is composed of lawyers chosen by the states and has a mission of providing "non-partisan, well-conceived and well-drafted legislation". This positions the ULC to continue to play a significant role in shaping legislation and promoting uniformity across the United States.

In addition, the increasing interstate business and individual movement in the US has heightened the need for greater uniformity of laws on particular subjects. This trend is likely to continue and could provide further impetus for the adoption of uniform laws by state legislatures.

Furthermore, the ULC's efforts to draft model state privacy laws, such as the Uniform Personal Data Protection Act (UPDPA), demonstrate its adaptability and responsiveness to emerging issues. While the future of the UPDPA is uncertain, it offers an interesting alternative approach to privacy regulation and could influence state legislatures.

While the challenges of achieving uniformity across state legislatures remain significant, the ULC's continued influence and the increasing need for uniformity in certain areas suggest that uniform laws will continue to play a role in shaping US legislation.

Frequently asked questions