The Still Questionable Role of Private Legislatures

• Author: Alan Schwartz
• Position: Sterling Professor of Law, Yale University

Sterling Professor of Law, Yale University. Robert Rasmussen and Robert E. Scott made helpful comments on prior drafts.

In 1995, Robert Scott and I published the first formally analyzed private law making bodies such as the American Law Institute ("ALI") and the National Conference of Commissioners on Uniform State Laws ("NCCUSL") function.¹ Adapting models drawn from the modern positive political theory literature, we predicted that a private legislature (a "PL") would: (a) have a status quo bias, rejecting serious reforms; (b) adopt rules (as opposed to standards) when lobbied by a single interest group;² and (c) adopt standards, or succumb to paralysis, when lobbied by competing groups. The impressionistic evidence and a content analysis of the U.C.C. and the ALI Corporate Governance rules were consistent with the models' results. Because we focused on private legislatures, we did not make a serious comparison between the competencies of these legislatures and ordinary legislative bodies. Nevertheless, we speculated that an ordinary legislature would perform well relative to a PL because it would have better mechanisms for resolving the claims of competing interest groups, and would be better able to find facts relevant to proposed laws. We did not recommend that the ALI and NCCUSL be abolished. Rather, we argued that these bodies should return to their original mission-to treat only subjects where society had reached a consensus on the relevant values, if that consensus could be translated into law with the use of traditional legal expertise alone.

Our article attracted a fair amount of criticism which focused primarily on the accuracy of certain assumptions of the assumptions models. No critic has shown, however, that the models were solved incorrectly, nor has any critic provided a competing theory that accurately predicts, as our theoretical results did, that an Article 2 revision, if it passed, would contain mainly standards; that the revised Article 9 would contain mainly rules; and that the Products Liability Restatement would choose standards so vacuous as to retain the status quo. Our conclusions were tentatively stated, however, because our formal work was preliminary and our data was impressionistically assembled. Thus, we concluded by remarking the need for "more theory and more evidence relating to how private law-making groups function" before a conclusive judgment could be drawn regarding just when, if ever, a PL would function well.³ Robert Rasmussen's paper for this Symposium⁴ contains numerous interesting insights, but it does not respond to this need.

This partly is because Rasmussen does not focus on private legislatures as such; instead, he argues that the "case against" the most successful PL legislative product, the U.C.C., is"uneasy." This claim does not respond directly to the Schwartz and Scott paper where we attempted to show that the mixture of rules and standards in the U.C.C. was more the product of structural features that characterize the ALI and NCCUSL than the result of policy choices regarding the appropriate level of abstraction on which to write statutes. Our analysis thus is consistent with the view that the U.C.C. contains some valuable sections. Unsurprisingly, then, Rasmussen is tougher on the Code than we were. He makes trenchant comments about the statute's unprincipledly limited scope; concedes that much of Articles 3 and 4 are unnecessary; recognizes that consumer interests were slighted in the original Code and in revisions; notes that Article 6 is withering away; criticizes the Article 9 revisions for not considering the interests of tort claimants; notes that the Code's coverage is being reduced by justifiable Federal interventions; and does not attempt to exhibit the relative superiority of Code solutions to important commercial problems.

Nevertheless, Rasmussen believes that there is something to be...