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American Bar Association - Defending Liberty, Pursuing Justice

Summer 2009

Vol. 5, No. 4

Litigation

 

Uniformity: The Land of Legal Enchantment

In a recent issue of Law Trends, I introduced you—many for the first time—to the Uniform Law Commission, the entity responsible for writing many of the laws learned during law school and bar review, quickly forgotten in the post bar-exam maelstrom of exhaustion and exuberance, and now relied upon, either directly or indirectly, in one’s daily practice.

This year, the commission convened in Santa Fe, New Mexico, for its 118th Annual Meeting. The meeting was held at the Santa Fe Convention Center from July 9th to July 16th. While the sun soaked the picturesque Sangre de Cristo Mountains, more than 200 commissioners, representing every state, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico were indoors, worked tirelessly at crafting uniform acts that harmonize the wide variations in state law and improve upon current practice.

Central to the Commission’s recent activity are revisions to Article 9 of the Uniform Commercial Code. The Uniform Commercial Code is the Commission’s preeminent accomplishment and is under constant review by commissioners to ensure that commercial practices stay current with societal and legal developments. Article 9 was last revised in 1998, modifying the rights and duties of a third party and expanding the scope of the Article. The revisions that were presented in Santa Fe include modifications to the debtor name sufficiency provision, changes which will impact both registered organizations and individual debtor names.

The practice of business law will be impacted by the work of three standing committees. The Business Organizations Act committee drafted language to harmonize common provisions found throughout business organization codes. Their work makes definitions, the mechanics of filing, qualification of foreign entities, and the Model Entity Transactions Act provisions on mergers, interest exchanges, and domestications consistent for the various business organization models. Additionally, the Commission considered the Uniform Statutory Trust Entity Act. Statutory trusts have grown increasingly popular and widely used in the structured finance and the mutual fund industry. The Act modernizes the existing, but outdated, laws governing these entities. Also, amendments to the ABA Model Business Corporation Acts were proposed. The amendments contained within the Uniform Law Enforcement Access to Entity Information Act respond to the recommendations of the Financial Action Task Force that was instituted by the G-7 nations in 1989. The Commission believes that these amendments are consistent with the international imperative to fight money laundering and financing of terrorist activities.

The Uniform Collaborative Law Act was presented for final approval to the Committee of the Whole. Collaborative law is a form of alternative dispute resolution that became popular with family lawyers over twenty years ago and has since expanded to be used in many different practices, including the settlement of contract and insurance disputes. State law governing the practice varies greatly. States regulate collaborative law through a variety of statutes, court rules, and independent boards. The act standardizes the most important features of collaborative law participation, mindful of ethical concerns as well as questions of evidentiary privilege.

Significant modifications to probate, estate, and trust law were discussed. The Uniform Insurance Interests Relating to Trusts Act amends the Uniform Trust Code to address the Chawla problem and creates safe harbors for the trustee that are broad enough to apply to all commonly used estate planning mechanisms using life insurance in some way to fund a portion of the trust. The Uniform Partition of Inherited Property Act, presented for the first time to the Committee of the Whole, solves issues related to the pre-partition rights of parties. Additionally, this Act provides wealth and equity protection provisions in the partition sale context. Commissioners also reviewed the final draft of the Uniform Real Property Transfer on Death Act, an act that provides an asset specific mechanism for the nonprobate transfer of land.

Revisions to two previously drafted administrative law acts were debated during the week. The Uniform Law on Notarial Acts has been revised to address issues relating to new technologies. The revisions are of a limited scope and relate to notary responsibilities, electronic recording, interstate recognition, and remedies. Likewise, the Model State Administrative Procedures Act has been revised to account for developments in the nationwide system of administrative law judges and to account for 25 years of legislative modification of administrative rule making.

The Commission is recognized primarily for its work in commercial law, the law of business organizations, family law, and the law governing probate and estates. However, this year commissioners reviewed several acts in areas outside the familiar scope of the commission’s work. Commissioners entertained uniform acts covering criminal and electoral law, as well as provide implementing statutes for several international conventions.

The Commission has addressed criminal law sporadically throughout its history, such as in the 1930s when it criminalized the tools of terror used by Dillinger, Capone, and Pretty Boy Floyd through the Uniform Handguns Act and the Uniform Machine Gun Act. The two acts that were considered this year do not criminalize behaviors, but standardize state procedures in order to ensure the equitable administration of justice. The Uniform Collateral Consequences of Conviction Act addresses the various penalties and disqualifications that individuals face incidental to criminal sentencing. Throughout the country these disqualifications exclude individuals from certain types of employment, bar the receipt of various public benefits, and place restrictions on voting. The Act does not address the prudence of the disqualifications, but is procedural, clarifying the policies and provisions that are already widely accepted by the states. For the first time, commissioners discussed the Uniform Electronic Recordation of Custodial Interrogations Act. This act addresses the use of audio and/or video electronic devices to during the questioning of individuals in police custody.

Growing interest in electoral reform has driven the Commission to entertain two acts dealing with the electoral process. The drafting committee for the Uniform Military Services and Overseas Civilian Absentee Voters Act has been actively working on an act that provides all eligible voters, no matter their location, the opportunity to exercise their right to vote. Careful study showed that overseas and military voters face a variety of unique challenges in participating in American elections. These challenges remain despite repeated Congressional efforts—most salient being the enactment of the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA)—as well as various state efforts to facilitate these voters’ ability to vote. The drafting committee has grappled with the relationship between state and federal election laws and the need to provide an act that maintains the uniqueness of each state’s electoral system. The Committee intends for the act to be complete in time for enactment prior to the next presidential election.

Presidential elections are the central focus of another act considered in Santa Fe, the Uniform Faithful Presidential Electors Act. The act addresses the problem of faithless electors; electors who vote for presidential or vice presidential candidates during the Electoral College that were not the preferred candidates of the party that nominated the elector. Further, the act provides procedures for electors to follow in the occurrence of the death of either a presidential or vice presidential candidate prior to the convening of the Electoral College. Fans of the show West Wing should be familiar with the issue, as it was a crucial part of series’ conclusion. And although Aaron Sorkin is not on the drafting committee, the commissioners involved with the project would surely welcome the chance to collaborate with him on a solution.

Commissioners considered several acts with international flavor, an indication of the Commission’s growing partnership with the U.S. Department of State in connection with the implementation and ratification of private international law treaties. Last year, the Commissioners successfully drafted amendments to the Uniform Interstate Family Support Act (UIFSA) that codified portions of the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. This year, the Commission considered language that will implement three international agreements; the Hague Convention on Choice of Court Agreements, the UN E-Commerce Convention, and the UN Convention on Independent Guarantees and Stand-by Letters of Credit. The goal is to help the federal government fulfill the international obligations without disrupting the traditional primacy of state law in the affected subject matter areas.

Those interested in reviewing the acts and providing comments to any of their state commissioners can do so by visiting the Commission’s website: www.nccusl.org/Update/AnnualMeeting_General.asp. For a list of commissioners by state, please visit www.nccusl.org/Update/DesktopDefault.aspx?tabindex=2&tabid=16.

Eric M. Fish serves as a legislative counsel for the Uniform Law Commission based in Chicago. As legislative counsel, Mr. Fish is responsible for providing support to legislators considering uniform acts. He also advises committees drafting future uniform acts. Mr. Fish graduated from the University of Chicago and the Loyola University Chicago School of Law.

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