When a Statute Comes With a User Manual: Reconciling Textualism and Uniform Acts

• Publication year: 2022

When a Statute Comes With a User Manual: Reconciling Textualism and Uniform Acts

Gregory A. Elinson

Robert H. Sitkoff

WHEN A STATUTE COMES WITH A USER MANUAL: RECONCILING TEXTUALISM AND UNIFORM ACTS

Gregory A. Elinson^* Robert H. Sitkoff^**

Abstract

This Article develops an interpretive theory for statutes that originate as Uniform Acts promulgated by the Uniform Law Commission. Although overlooked in the literature on statutory interpretation, state-enacted Uniform Acts are ubiquitous. They shape our life cycles—governing marriage, parentage, divorce, and death—and structure trillions of dollars in daily commercial transactions.

Largely focusing on textualism, today's dominant form of statutory interpretation, we analyze the interpretive consequences of two unusual features of state-enacted Uniform Acts. First, the text of every Uniform Act directs courts to interpret it to "promote uniformity." Second, each provision is accompanied by an official explanatory comment, analogous to a user manual for interpreters. We argue that, in light of these features, foundational textualist principles obligate courts to consider legislative intent as expressed in the official comments—what textualists would otherwise dismiss as legislative history—when they interpret a statute originating as a Uniform Act.

More specifically, this Article explores what we call the "directives" and "signals" that state legislatures send when they enact a Uniform Act. As enacted statutory text, the promote-uniformity clause directs courts to treat the official comments as persuasive authority on the statute's meaning. Moreover, even if a

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legislature enacts only a portion of a Uniform Act, the legislature signals that courts should treat the comments as persuasive authority by virtue of the choice to incorporate language from a Uniform Act rather than some alternative text.

Moving from theory to practice, we develop a canon of construction for interpreting this significant but under-studied species of positive law. We also present a series of puzzles and complications arising from "hybrid" enactments of bespoke and Uniform statutory language. More generally, by colliding textualist theory with the two-step political economy of state-enacted Uniform Acts, the Article broadens our understanding of textualism and adapts it to this critical but overlooked category of statute.

Introduction...........................................................................................1075

I. The Making of Uniform Acts.....................................................1083

A. The Origins and Influence of the ULC ................................... 1083
B. Step One: The ULC Drafting Process .................................... 1085

1. Scope and Program .......................................................... 1085
2. Drafting Committees and Plenary Sessions ..................... 1087
3. Drafting Output................................................................ 1090

C. Step Two: State Enactment..................................................... 1093

II. Textualism: Theory and Assumptions.....................................1097

A. The Text Is the Law ................................................................. 1097
B. The Fiction of Legislative Purpose......................................... 1099
C. The Proper Role of Courts ..................................................... 1101

III. An Interpretive Canon: Applying Textualism to Uniform Acts................................................................................................1102

A. Directives: Implementing the Promote-Uniformity Clause .... 1103
B. Signals: Recovering Original Public Meaning ....................... 1108

1. The Logic of State Enactment........................................... 1108
2. The Consequences of State Enactment ............................. 1111
3. The Extent of State Enactment .......................................... 1113

C. Practical Payoffs .................................................................... 1115

1. Macool.............................................................................. 1115
2. stoker ............................................................................... 1119
3. Darby ................................................................................ 1121

IV. Interpretive Challenges and Limits........................................ 1123

A. The Problem of Assimilation .................................................. 1124
B. The Problem of Simultaneous Enactment ............................... 1127
C. The Problem of Omission ....................................................... 1130
D. The Problem of the ULC's Internal Legislative History ......... 1133

Conclusion...............................................................................................1136

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Introduction

Every day, courts across the country interpret a distinctive species of statute—a state-enacted Uniform Act. These statutes are first drafted by the Uniform Law Commission (ULC) and then enacted by state legislatures.¹ A quasi-public legislative body constituted by members appointed under state law, the ULC drafts and promulgates for enactment by the states model statutes "on subjects on which uniformity across the states is desirable and practicable."²

Americans encounter Uniform Acts all the time. They help to structure our life cycles, from birth and adoption to marriage, divorce, and death.³ Broadly adopted Uniform Acts govern, among other things, parentage, child custody, premarital and marital agreements, inheritance, and even the definition of what it means to be legally deceased.⁴ Our daily commercial dealings, too, are shaped by the ULC's work, including the Uniform Commercial Code, which governs the sale of goods and secured transactions,⁵ and the Uniform Electronic Transactions Act, the foundation for trillions of dollars in digital commerce.⁶ Because the ULC's work is integral to contemporary life, the task of developing

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a comprehensive, theoretically sound approach to interpreting state-enacted Uniform Acts is critical. This Article begins that work.⁷

Our central claim is that state-enacted Uniform Acts are meaningfully different from conventional statutes in ways that bear directly on how they should be interpreted. Start with content. Every Uniform Act includes a provision that directs courts to give "consideration" to "promot[ing] uniformity of the law" in construing the text.⁸ And every Uniform Act is promulgated by the ULC as an integrated package of both blackletter text and official explanatory comments. Much like a user manual, the comments elaborate how the text is meant to operate, discussing the provision's purpose and intended meaning.⁹ The enactment process is also different. Unlike the standard Schoolhouse Rock legislative model,¹⁰ in which state lawmakers craft and then enact bespoke statutory language, a state-enacted Uniform Act follows a two-step model in which legislatures either accept the ULC's off-the-rack terms or modify them.¹¹ Often, a legislature will simply enact the ULC's text—including the promote-uniformity language—verbatim.

For nontextualists (whether intentionalists or purposivists), these features that distinguish Uniform Acts from other kinds of statutes are largely congenial to the interpretive enterprise.¹² Nontextualists are increasingly attentive to the

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specific features of particular legislative processes.¹³ The ULC's expression of its intent or purpose via the comments provides useful information about what the statute's drafters wanted it to do.¹⁴ The same goes for the promote-uniformity clause, which can help interpreters identify "how the particular statute ... fit[s] into the legal system as a whole."¹⁵ For nontextualists, therefore, the official comments to a Uniform Act slot in easily as persuasive authorities to the statute's intended purpose and meaning.

Things look quite different for textualists. In using this term (like purposivism or intentionalism), we are describing in broad strokes what is an increasingly rich and diverse interpretive approach.¹⁶ Nevertheless, textualists

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share some foundational understandings about how to interpret a statute.¹⁷ In particular, textualists tend to deny that materials other than the statutory text, including legislative history, may be used to determine the statute's meaning.¹⁸ For textualists of all stripes, therefore, the official comments to Uniform Acts would seem to be out of bounds.

Not so. Put in its most provocative form, our claim is that textualism's core commitments require textualists interpreting an enacted Uniform Act to treat the Act's official comments as persuasive guides to the state's meaning.¹⁹ More specifically, we argue that when a legislature enacts a Uniform Act unmodified, the statute's promote-uniformity provision directs courts to ascribe juridical status to the official comments of an enacted Uniform Act. The text itself requires courts to treat the commentary as persuasive (albeit not binding) authority in interpreting a state-enacted Uniform Act.²⁰

Of course, a legislature need not adopt the ULC's promulgated text wholesale. It may modify the ULC's text. These modifications may be minor, such as tinkering with the language to fit the state's drafting conventions, or major, including explicit rejection of key statutory terms because of outright policy disagreement.²¹ In either case, we contend, the statutory text charges

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courts with assessing the strength of the signal the legislature sends by adopting some portion of the ULC's language.²² The stronger the signal—that is, the less the enacted text departs from the Uniform Act—the more that textualist commitments point to treating the ULC's accompanying commentary as persuasive (but again, not binding) authority. Put another way, the more of the Uniform Act the legislature...