Program Recap: “A More Perfect Union: Uniform Laws in New York State”

On April 24, the City Bar’s Committee on Commercial Law and Uniform State Laws, in conjunction with the Uniform Law Commission (“ULC”), presented a CLE program titled “A More Perfect Union: Uniform Laws in New York State.”

The program’s speakers included New York Uniform Law Commissioners Mark Glaser, Sandra Stern and Norman Greene; Massachusetts Commissioner Edwin Smith; and Ben Orzeske, Chief Counsel of the ULC. Alan Kolod, chair of the City Bar’s Commercial Law & Uniform State Laws Committee, introduced the event.

The presentation began with Mr. Kolod’s survey of the history of the ULC and its early achievements. He described the intellectual, constitutional, social and economic forces that propelled this movement to enact uniform state legal codes and led to the founding of the ULC in New York in 1892. He described the ULC’s early projects on uniform holidays, weights & measures and acknowledgement of documents for recordation; the expansion of its work into matters of probate and divorce; and its development of early uniform commercial laws and business organization laws. Finally, he set out the significance of the ULC’s 30 year project for the creation and enactment of the Uniform Commercial Code and the technological forces that drive the need for continued revision of commercial laws to maintain uniformity.

Ben Orzeske next described the structure of the ULC and the rigorous methods it employs in selecting projects and then drafting proposed acts and codes for consideration by state legislatures. ULC Commissioners are volunteer attorneys appointed by the governments of the fifty states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. They work to identify areas of state law that would benefit from greater uniformity and then hold public meetings to draft proposed uniform laws. Mr. Orzeske described the multiple criteria used in deciding whether to pursue a drafting project. All ULC drafting committees include representatives from affected stakeholders who provide valuable input. Drafting committees attempt to reach consensus and draft laws based on sound public policy. Each draft goes through multiple iterations which are read for comment to the entire body of commissioners at an annual meeting each summer, and posted on the ULC website for review by the public. After this rigorous vetting process, new uniform acts are approved by a vote of the states and then published for consideration by state legislatures. Mr. Orzeske identified numerous factors that made for successful uniform law creation.

Mark Glaser, the chair of the New York delegation of Commissioners, described the legislative process in New York for the consideration and enactment of laws promulgated by the ULC using some of the recently addressed laws as case studies, including the Tort Law Relating to Drones Act, Voidable Transactions Act, and Partition of Heirs Property Act.

The panelists went into detail describing numerous important recent and current drafting projects of the ULC. Commissioner Sandra Stern summarized a number of the important non-commercial laws drafted and promulgated by the ULC. She noted that the Anatomical Gifts Act provides detailed instructions as to how a donor’s wishes (either to donate or to refuse donation) are to be carried out, and the steps that will be taken in the event that an eligible donor has not provided any instruction. The Fiduciary Access to Digital Assets Act provides clear rules for online service providers and fiduciaries that will enable fiduciaries to obtain the information that may be helpful in locating and managing the decedent’s assets. The Nonparent Custody and Visitation Act, leaning heavily on the Supreme Court case of Troxel v. Granville, is weighted toward the decision of the parents as to visitation or custody by others (even close relatives). Finally, the Civil Remedies for Unauthorized Disclosure of Intimate Images Act provides substantial civil remedies for acts known as “revenge porn.” (New York has enacted its own version of this Act, which includes criminal penalties.)

Commissioner Ed Smith discussed important commercial law projects recently addressed by the ULC. These included the Remote Online Notarization amendment to the Uniform Law on Notarial Acts, Regulation of Virtual Currency Businesses Act and its Commercial Law Supplement, the Business Organizations Code and the Protected Series Act. Mr. Kolod talked about the current efforts in the New York Legislature to adopt the Uniform Voidable Transactions Act, to modernize New York’s outmoded fraudulent conveyance law and minimize forum shopping and unnecessary choice of law litigation. He also noted the concern about the effect of gentrification on heirs who hold title to real estate by tenancy in common and the importance of the adoption of the Uniform Partition of Heirs Property Act to protect them from “fire-sale” prices in partition sales triggered by investors who buy minority interests from family members. Mr. Orzeske described the Uniform Trust Code. He also explained how the ULC’s law on Electronic Recordation of Custodial Interrogations was being adopted by various police departments as a best practice.

Commissioners Stern and Smith elaborated on the importance of technological change and how it was driving proposed legislation concerning online notarization and acknowledgments, virtual currency and digital assets, electronic wills and an upcoming study to review the effect of technology on the Uniform Commercial Code.

Among other things, Commissioner Norman Greene reflected on the process used by the ULC in creating Uniform and Model Acts, reprising some of the themes from another symposium held at the Association in which he participated in the late 1990’s, published in full in the Oklahoma City Law Review[1]. He stressed the article’s theme that it was essential that drafting committees ensure that the commissioners on the floor at annual meetings are knowledgeable about the acts which come before them and suggested that time and attention be paid to education of the commissioners. Ben Orzeske observed that commissioner education is now a priority, including through the use of new technology. Norman also pointed out how since the 1990’s, the ULC had substantially expanded its professional staff to nearly 15, thereby strengthening its capacity to carry out its mission. Finally, reflecting on his position as committee chair and his experience as a commissioner, Norman emphasized how many other subjects than commercial law are covered by the ULC, and referenced his own participation on drafting committees on human trafficking (one of his best overall legal experiences, partly because of the extraordinary observers who assisted the drafting committee), recording of custodial interrogations, and punitive damages.

During the Q&A session, an attendee who is a doctor and medical professor asked a number of perceptive questions concerning the roles that special interest groups (such as doctors and, particularly, transplant surgeons in the case of the Uniform Anatomical Gifts Act) might play in lobbying efforts to obtain legislative enactment of proposed uniform laws, the extent to which new technologies might require revision of existing acts and how they might become involved in pressing for and participating in revisions to existing acts.

In conclusion, Mr. Kolod encouraged involvement in the work of the committee and in the substantive City Bar committees whose expertise touch on the work of the committee.

This CLE program is available on demand here: http://bit.ly/2JniWak