The Law School Magazine  ·  Summer 2013 : Features

Building laws: Professors lend expertise, skill to establishing uniform laws, restatements

By - Summer 2013
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From soldiers casting ballots from Afghanistan to two parties negotiat­ing freely via a long-distance telephone call, the leadership of faculty at The Ohio State University Moritz College of Law is having an impact.

There is a long tradition of professors from the College serving the American Law Institute (ALI) and the Uniform Law Commission (ULC), also known as the National Conference of Commission­ers on Uniform State Laws (NCCUSL). Both bodies endeavor to improve laws across the U.S. and, in some instances, in­ternationally. However, their approaches often are different.

“NCCUSL puts a premium on develop­ing a uniform law that can be enacted as widely as possible. If that’s not possible, they try to produce a model law that’s still very much connected to the realities of the real world,” said Professor of Law Steven F. Huefner. “With ALI, the focus often is more on developing the ideal law, even if it’s more difficult to implement.”

Huefner was the reporter for the ULC’s Uniform Military and Overseas Voters Act from 2009 to 2010. He is a senior fellow at Election Law @ Moritz who has co-authored books about election admin­istration with colleagues at Moritz.

Being asked to serve as a reporter is a prestigious honor, denoting one’s ex­pertise in a particular field. The position itself requires possibly committing years to researching laws across a number of states and working closely with a drafting or advisory committee to produce one coherent statement of law or piece of legislation that could be enacted broadly.

“Election law is a subject that had not previously lent itself to uniform law treatment because elections are conduct­ed on such a local level,” Huefner said. “But when the ULC decided to undertake its project, the military and overseas citi­zen population, who are outside of their local voting state, faced this horribly complicated process of having to figure out from Iraq or Afghanistan what their absentee voting rules back home were.”

Some states required a notary or another registered voter from the same state to be present when ballots were submitted – not an easy feat on a battle field. Plus, there are issues trying to get ballots to reach military units that are constantly on the move. U.S. citizens abroad also described a variety of diffi­culties voting in their home jurisdictions.

“The drafting committee faced many complicated challenges,” Huefner said.

Complicated situations are what the ULC and the ALI tackle though, ex­plained Larry T. Garvin, the Lawrence D. Stanley Professor of Law. Garvin serves as one of Ohio’s members of the ULC and a member of its committee on the law of international electronic commerce. He also is an advisor to a number of ALI groups working on restatements of law, which are used by judges and, occasion­ally, legislative bodies.

Garvin has observed and studied closely the greatest collaborative product produced by the ULC and the ALI: the Uniform Commercial Code. He describes it as the “crown jewel” for the commission because of its enactment in every state. Also, it’s a symbol of the continued part­nership the commission has with the ALI.

“NCCUSL did a good job of taking a messy and sometimes incoherent area and formulating it in a way that produced uniformity without rigidity,” Garvin said.

For example, the law of secured trans­actions fixed problems businesses or other borrowers had when putting personal property in several states up for collat­eral when obtaining a loan. “The law was fragmented. You had to become an expert in the laws of various states,” he said. “You could not assume by filling a particular document in a particular state that you would be OK in every state thereafter. Does it matter which forms you fill out? Or how you describe what you’re doing?”

It’s a problem that affects more than just commerce. Nancy Hardin Rogers, professor emeritus and a former member of the UCL, said some states had as many as 20 different statutes related to how confidential mediation processes were before the dispute resolution faculty at Ohio State joined with others calling for uniformity. When parties mediated over the phone or email, or when a dispute was mediated in one state and litigated in another, which state’s law would apply?

“It was beginning to be so difficult to determine what you could and could not say, that it looked like it was going to become an impediment to getting people to mediate,” Rogers said. “It was thought that a uniform act would have several positive effects, including a chance to assess what was and wasn’t working; to decrease the complexity within a given state when defining privilege across different applications of mediation; and to deal with multijurisdictional issues across states.”

Moritz faculty, other legal scholars, and even the late Ohio Supreme Court Chief Justice Thomas J. Moyer ’64 conducted some careful negotiations themselves to ensure that the ULC and the American Bar Association would not work on me­diation projects separate of one another.

“There were so many approaches being taken that we might end up with two laws, which would then exacerbate the situation,” Rogers said. A subsequent conversation between members of both organizations resulted in a joint drafting committee. Today, 10 states and the Dis­trict of Columbia have taken that model piece of legislation and enacted it. Rogers said, “We’ve also noticed in states that haven’t enacted it, the courts sometimes use it as a persuasive codification of the law and rely on it when their own laws are unclear. It’s very encouraging.”

The hard work of drafting laws that are considered ideal and, hopefully, widely adoptable is exhilarating, Garvin said.

“When you take part in a drafting committee, you are working with a lot of the best people in the country – if not the world – on the issues at hand. It is the best CLE available,” he said. “I have brought a lot back to my classes from these experiences, and I am a much bet­ter scholar and teacher than I would have been otherwise.”

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