Uniform private laws, national conference of commissioners for uniform state laws signaling and federal preemption

American Business Law Journal

Volumn 38, Issue 1, 2000, Pages 41-97

  Razook, Nim ^a  

^a NONE

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EID: 0040374393     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.2000.tb00285.x     Document Type: Article

References (246)

1. Unlike a federal state or federation, a unitary state is comprised of a single governing level. See, e.g., Susan Rose-Ackerman, Does Federalism Matter? Political Choices in a Federal Republic, 89 J. POL. ECON. 152 (1981)(using economic analysis to compare unitary and federal government systems).
2. If this unitary state were also a common law jurisdiction, then the courts would be interpreters and potential lawmakers.
3. Diversity has often been touted as one of the key benefits of our federal system. States can be responsive to local tastes and customs, compete with sister states by offering differential public goods, and serve as local laboratories experimenting with the optimal provision of these public goods. Justice Louis Brandeis noted the benefits associated with states acting as local laboratories in a famous dissent. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)(Brandeis dissenting); see also Edmund W. Kitch, Regulation, the American Common Market and Public Choice, 6 HARV. J.L. & PUB. POL'Y 119 (1982)(favoring generally interstate competition as a means of providing optimal public goods); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1210 (1977)(noting the importance of local differences in formulating environmental policy); Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956)(providing the seminal work on the economic benefits of local control).
4. Diversity has often been touted as one of the key benefits of our federal system. States can be responsive to local tastes and customs, compete with sister states by offering differential public goods, and serve as local laboratories experimenting with the optimal provision of these public goods. Justice Louis Brandeis noted the benefits associated with states acting as local laboratories in a famous dissent. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)(Brandeis dissenting); see also Edmund W. Kitch, Regulation, the American Common Market and Public Choice, 6 HARV. J.L. & PUB. POL'Y 119 (1982)(favoring generally interstate competition as a means of providing optimal public goods); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1210 (1977)(noting the importance of local differences in formulating environmental policy); Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956)(providing the seminal work on the economic benefits of local control).
5. Diversity has often been touted as one of the key benefits of our federal system. States can be responsive to local tastes and customs, compete with sister states by offering differential public goods, and serve as local laboratories experimenting with the optimal provision of these public goods. Justice Louis Brandeis noted the benefits associated with states acting as local laboratories in a famous dissent. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)(Brandeis dissenting); see also Edmund W. Kitch, Regulation, the American Common Market and Public Choice, 6 HARV. J.L. & PUB. POL'Y 119 (1982)(favoring generally interstate competition as a means of providing optimal public goods); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1210 (1977)(noting the importance of local differences in formulating environmental policy); Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956)(providing the seminal work on the economic benefits of local control).
6. In his contributions to The Federalist Papers, James Madison was insistent that states would retain their powers as separate, semi-autonomous units: The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government THE FEDERALIST No. 45 (James Madison)(New American Library ed., 1961).
7. One area of private law given significant attention by Congress is product liability. For over twenty years, Congress has tried and failed to enact a national product liability law. On previous efforts by Congress to enact national product liability legislation, see infra note 79 and accompanying text. Congress' most recent effort, the Common Sense Product Liability Legal Reform Act, H.R. 956, 104th Cong. (1996), was vetoed by President Clinton on May 2, 1996. See President's Message on Returning Without Approval to the House of Representatives the Common Sense Product Liability Legal Reform Act of 1996, 32 WKLY. COMP. PRES. DOC. 780 (May 2, 1996). Congressional efforts have been more successful in other areas. See infra notes 88-90 and accompanying text.
8. Ease of compliance and efficiency tend to be the leading arguments for uniform private laws. See W. BROOKE GRAVES, UNIFORM STATE ACTION: A POSSIBLE SUBSTITUTE FOR CENTRALIZATION (1934)(citing uniform laws as a means of establishing easier compliance); Larry E. Ribstein & Bruce H. Kobayashi, An Economic Analysis of Uniform State Laws, 25 J. LEGAL STUD. 131, 138 (1996)(stating that uniform laws - state laws in this case - reduce inconsistency, information, litigation, instability, externality and drafting costs).
9. Ease of compliance and efficiency tend to be the leading arguments for uniform private laws. See W. BROOKE GRAVES, UNIFORM STATE ACTION: A POSSIBLE SUBSTITUTE FOR CENTRALIZATION (1934)(citing uniform laws as a means of establishing easier compliance); Larry E. Ribstein & Bruce H. Kobayashi, An Economic Analysis of Uniform State Laws, 25 J. LEGAL STUD. 131, 138 (1996)(stating that uniform laws - state laws in this case - reduce inconsistency, information, litigation, instability, externality and drafting costs).
10. There appears to be no generally-accepted means of identifying those areas of private law improved because of uniform regulation, although some have suggested that any legal transaction or occurrence implicating two or more states might merit uniform treatment. See, e.g., James W. Day, The National Conference of Commissioners on Uniform State Laws, 8 U. FLA. L. REV. 276 (1955)(stating that "the need for uniformity is greatest ... in those fields in which the steps leading to the completion of a transaction or project are frequently so taken in two or more jurisdictions...").
11. The meaning of regulatory uniformity actually varies as illustrated by the following dichotomies. The first is legislative versus judicial uniformity. Uniform state statutes such as those proposed by the National Conference of Commissioners on Uniform State Laws represent the former. These receive significant treatment in this article. See infra notes 63-76 and 98-172 and accompanying text. Judicial uniformity would include the important works of the American Law Institute, the Restatements, also addressed in this work. See infra notes 44-49 and accompanying text. Uniformity would also implicate means versus ends uniformity. Means uniformity requires identical laws to achieve identical ends. Ends uniformity suggests that diverse laws can achieve uniform ends. See infra notes 32-37 and accompanying text.
12. The tension between these two means of achieving regulatory uniformity is the focus of this article. See infra notes 42-92 and accompanying text.
13. This article focuses on regulatory, rather than fiscal uniformity. Fiscal laws deal primarily with that area of government interested in raising and spending revenue. Taxation is the best example. Although regulatory and fiscal areas share some common ground, the regulatory focus of this article, matters of historically state-governed private law, is markedly different from fiscal affairs. On fiscal issues as they relate to the issue of federalism, see THOMAS R. DYE, FEDERALISM: COMPETITION AMONG GOVERNMENTS 12-15 (1990). On the consequences of diverse state fiscal incentives intended to attract businesses, see Peter D. Enrich, Saving the States from Themselves: Commerce Clause Constraints on State Tax Incentives for Business, 110 HARV. L. REV. 377 (1996).
14. This article focuses on regulatory, rather than fiscal uniformity. Fiscal laws deal primarily with that area of government interested in raising and spending revenue. Taxation is the best example. Although regulatory and fiscal areas share some common ground, the regulatory focus of this article, matters of historically state-governed private law, is markedly different from fiscal affairs. On fiscal issues as they relate to the issue of federalism, see THOMAS R. DYE, FEDERALISM: COMPETITION AMONG GOVERNMENTS 12-15 (1990). On the consequences of diverse state fiscal incentives intended to attract businesses, see Peter D. Enrich, Saving the States from Themselves: Commerce Clause Constraints on State Tax Incentives for Business, 110 HARV. L. REV. 377 (1996).
15. Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960).
16. For general law and economics treatments in which the Coase Theorem is the central analytic theory, see ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS (1988); A. MITCHEL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS (1989); RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW (1992). For a sampling of works extending Coase's theorem to specific areas of private law, see GUIDO CALABRESI, THE COST OF ACCIDENTS (1970)(torts, especially those involving motor vehicle accidents); ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991)(potential disputes between ranchers and farmers); READINGS IN THE ECONOMICS OF CONTRACT LAW (Victor P. Goldberg ed. 1989)(contracts law); George L. Priest, A Theory of the Consumer Product Warranty, 90 YALE L.J. 1297 (1981)(product warranties); Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980)(causation rules in tort cases).
17. For general law and economics treatments in which the Coase Theorem is the central analytic theory, see ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS (1988); A. MITCHEL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS (1989); RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW (1992). For a sampling of works extending Coase's theorem to specific areas of private law, see GUIDO CALABRESI, THE COST OF ACCIDENTS (1970)(torts, especially those involving motor vehicle accidents); ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991)(potential disputes between ranchers and farmers); READINGS IN THE ECONOMICS OF CONTRACT LAW (Victor P. Goldberg ed. 1989)(contracts law); George L. Priest, A Theory of the Consumer Product Warranty, 90 YALE L.J. 1297 (1981)(product warranties); Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980)(causation rules in tort cases).
18. For general law and economics treatments in which the Coase Theorem is the central analytic theory, see ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS (1988); A. MITCHEL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS (1989); RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW (1992). For a sampling of works extending Coase's theorem to specific areas of private law, see GUIDO CALABRESI, THE COST OF ACCIDENTS (1970)(torts, especially those involving motor vehicle accidents); ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991)(potential disputes between ranchers and farmers); READINGS IN THE ECONOMICS OF CONTRACT LAW (Victor P. Goldberg ed. 1989)(contracts law); George L. Priest, A Theory of the Consumer Product Warranty, 90 YALE L.J. 1297 (1981)(product warranties); Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980)(causation rules in tort cases).
19. For general law and economics treatments in which the Coase Theorem is the central analytic theory, see ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS (1988); A. MITCHEL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS (1989); RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW (1992). For a sampling of works extending Coase's theorem to specific areas of private law, see GUIDO CALABRESI, THE COST OF ACCIDENTS (1970)(torts, especially those involving motor vehicle accidents); ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991)(potential disputes between ranchers and farmers); READINGS IN THE ECONOMICS OF CONTRACT LAW (Victor P. Goldberg ed. 1989)(contracts law); George L. Priest, A Theory of the Consumer Product Warranty, 90 YALE L.J. 1297 (1981)(product warranties); Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980)(causation rules in tort cases).
20. For general law and economics treatments in which the Coase Theorem is the central analytic theory, see ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS (1988); A. MITCHEL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS (1989); RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW (1992). For a sampling of works extending Coase's theorem to specific areas of private law, see GUIDO CALABRESI, THE COST OF ACCIDENTS (1970)(torts, especially those involving motor vehicle accidents); ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991)(potential disputes between ranchers and farmers); READINGS IN THE ECONOMICS OF CONTRACT LAW (Victor P. Goldberg ed. 1989)(contracts law); George L. Priest, A Theory of the Consumer Product Warranty, 90 YALE L.J. 1297 (1981)(product warranties); Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980)(causation rules in tort cases).
21. For general law and economics treatments in which the Coase Theorem is the central analytic theory, see ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS (1988); A. MITCHEL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS (1989); RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW (1992). For a sampling of works extending Coase's theorem to specific areas of private law, see GUIDO CALABRESI, THE COST OF ACCIDENTS (1970)(torts, especially those involving motor vehicle accidents); ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991)(potential disputes between ranchers and farmers); READINGS IN THE ECONOMICS OF CONTRACT LAW (Victor P. Goldberg ed. 1989)(contracts law); George L. Priest, A Theory of the Consumer Product Warranty, 90 YALE L.J. 1297 (1981)(product warranties); Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980)(causation rules in tort cases).
22. For general law and economics treatments in which the Coase Theorem is the central analytic theory, see ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS (1988); A. MITCHEL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS (1989); RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW (1992). For a sampling of works extending Coase's theorem to specific areas of private law, see GUIDO CALABRESI, THE COST OF ACCIDENTS (1970)(torts, especially those involving motor vehicle accidents); ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991)(potential disputes between ranchers and farmers); READINGS IN THE ECONOMICS OF CONTRACT LAW (Victor P. Goldberg ed. 1989)(contracts law); George L. Priest, A Theory of the Consumer Product Warranty, 90 YALE L.J. 1297 (1981)(product warranties); Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980)(causation rules in tort cases).
23. For general law and economics treatments in which the Coase Theorem is the central analytic theory, see ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS (1988); A. MITCHEL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS (1989); RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW (1992). For a sampling of works extending Coase's theorem to specific areas of private law, see GUIDO CALABRESI, THE COST OF ACCIDENTS (1970)(torts, especially those involving motor vehicle accidents); ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991)(potential disputes between ranchers and farmers); READINGS IN THE ECONOMICS OF CONTRACT LAW (Victor P. Goldberg ed. 1989)(contracts law); George L. Priest, A Theory of the Consumer Product Warranty, 90 YALE L.J. 1297 (1981)(product warranties); Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463 (1980)(causation rules in tort cases).
24. For one of the earliest efforts to extend the Coase Theorem to matters of federalism, see A Symposium on Federalism, 6 HARV. J.L. & PUB. POL'Y 1 (1982).
25. See, e.g., Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995)(favoring a "relegalization" of federalism using Coasean principles); William L. Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 YALE L.J. 663 (1974)(applying Coasean-like principles to state corporation laws); Kitch, supra note 3 (embracing Coase Theorem as analytic tool to examine American federalism); Jacques LeBoeuf, The Economics of Federalism and the Proper Scope of the Federal Commerce Power, 31 SAN DIEGO L. REV. 555 (1994)(providing Coasean analysis of federalism); Richard A. Posner, Toward An Economic Theory of Federalism, 6 HARV. J.L. & PUB. POL'Y 41 (1982)(basic Coasean approach to federalism); Stewart, supra note 3 (applying Coasean principles to environmental regulation).
26. See, e.g., Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995)(favoring a "relegalization" of federalism using Coasean principles); William L. Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 YALE L.J. 663 (1974)(applying Coasean-like principles to state corporation laws); Kitch, supra note 3 (embracing Coase Theorem as analytic tool to examine American federalism); Jacques LeBoeuf, The Economics of Federalism and the Proper Scope of the Federal Commerce Power, 31 SAN DIEGO L. REV. 555 (1994)(providing Coasean analysis of federalism); Richard A. Posner, Toward An Economic Theory of Federalism, 6 HARV. J.L. & PUB. POL'Y 41 (1982)(basic Coasean approach to federalism); Stewart, supra note 3 (applying Coasean principles to environmental regulation).
27. See, e.g., Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995)(favoring a "relegalization" of federalism using Coasean principles); William L. Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 YALE L.J. 663 (1974)(applying Coasean-like principles to state corporation laws); Kitch, supra note 3 (embracing Coase Theorem as analytic tool to examine American federalism); Jacques LeBoeuf, The Economics of Federalism and the Proper Scope of the Federal Commerce Power, 31 SAN DIEGO L. REV. 555 (1994)(providing Coasean analysis of federalism); Richard A. Posner, Toward An Economic Theory of Federalism, 6 HARV. J.L. & PUB. POL'Y 41 (1982)(basic Coasean approach to federalism); Stewart, supra note 3 (applying Coasean principles to environmental regulation).
28. See, e.g., Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995)(favoring a "relegalization" of federalism using Coasean principles); William L. Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 YALE L.J. 663 (1974)(applying Coasean-like principles to state corporation laws); Kitch, supra note 3 (embracing Coase Theorem as analytic tool to examine American federalism); Jacques LeBoeuf, The Economics of Federalism and the Proper Scope of the Federal Commerce Power, 31 SAN DIEGO L. REV. 555 (1994)(providing Coasean analysis of federalism); Richard A. Posner, Toward An Economic Theory of Federalism, 6 HARV. J.L. & PUB. POL'Y 41 (1982)(basic Coasean approach to federalism); Stewart, supra note 3 (applying Coasean principles to environmental regulation).
29. See, e.g., Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995)(favoring a "relegalization" of federalism using Coasean principles); William L. Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 YALE L.J. 663 (1974)(applying Coasean-like principles to state corporation laws); Kitch, supra note 3 (embracing Coase Theorem as analytic tool to examine American federalism); Jacques LeBoeuf, The Economics of Federalism and the Proper Scope of the Federal Commerce Power, 31 SAN DIEGO L. REV. 555 (1994)(providing Coasean analysis of federalism); Richard A. Posner, Toward An Economic Theory of Federalism, 6 HARV. J.L. & PUB. POL'Y 41 (1982)(basic Coasean approach to federalism); Stewart, supra note 3 (applying Coasean principles to environmental regulation).
30. A brief history of the Conference appears in the next section. See infra notes 63-76 and accompanying text.
31. There are three reasons why it is difficult to account accurately for all the acts promulgated by the Conference. First, one must deal with severability of articles within a Conference adoption. Does each article of the Uniform Commercial Code count as an act, or does the Code represent one adoption? Second, one must decide how to account for revised acts adopted by the Conference. The Uniform Commercial Code, for example, has been the subject of extensive revision since its inception. Third, sources addressing Conference activities tend to disagree about the number of acts adopted by the organization. Although this is not a rigorous study of Conference adoptions, this paper does rely on Conference activities - especially the political machinations surrounding its decisions to act, the tenets governing how it should label a promulgation (i.e. as a uniform or model act), and the areas at which it chooses to direct its activities - to support its thesis. Therefore, a rough count of Conference adoptions is useful. One may obtain a cumulative view of Conference promulgations from the following sources. Walter Armstrong provides a year-to-year compilation of Conference adoptions through 1990 in WALTER P. ARMSTRONG, A CENTURY OF SERVICE: A CENTENNIAL HISTORY OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 165-77 (1991)(totaling 358 adoptions counting revisions). For an extensive compilation of the acts promulgated by the Conference and state-by-state adoptions of these acts, see HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS (1991)(over 300 promulgations); James J. Brudney, Mediation and Some Lessons from the Uniform State Law Experience, 13 OHIO ST. J. ON DISP. RESOL. 795, 801-02 (1998) (Conference adoptions through September 30, 1996, excluding obsolete and superceded acts); Ribstein & Kobayashi, supra note 6, at 188-93 (updating Conference activities to September, 1993, excluding obsolete and superceded acts, and addressing state-by-state adoptions). An updated compilation of year-by-year Conference adoptions - relying on various sources including the UNIFORM LAWS ANNOTATED and the Conference's web site 〈http://www.nccusl.org〉 - appears in the APPENDIX to the article.
32. There are three reasons why it is difficult to account accurately for all the acts promulgated by the Conference. First, one must deal with severability of articles within a Conference adoption. Does each article of the Uniform Commercial Code count as an act, or does the Code represent one adoption? Second, one must decide how to account for revised acts adopted by the Conference. The Uniform Commercial Code, for example, has been the subject of extensive revision since its inception. Third, sources addressing Conference activities tend to disagree about the number of acts adopted by the organization. Although this is not a rigorous study of Conference adoptions, this paper does rely on Conference activities - especially the political machinations surrounding its decisions to act, the tenets governing how it should label a promulgation (i.e. as a uniform or model act), and the areas at which it chooses to direct its activities - to support its thesis. Therefore, a rough count of Conference adoptions is useful. One may obtain a cumulative view of Conference promulgations from the following sources. Walter Armstrong provides a year-to-year compilation of Conference adoptions through 1990 in WALTER P. ARMSTRONG, A CENTURY OF SERVICE: A CENTENNIAL HISTORY OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 165-77 (1991)(totaling 358 adoptions counting revisions). For an extensive compilation of the acts promulgated by the Conference and state-by-state adoptions of these acts, see HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS (1991)(over 300 promulgations); James J. Brudney, Mediation and Some Lessons from the Uniform State Law Experience, 13 OHIO ST. J. ON DISP. RESOL. 795, 801-02 (1998) (Conference adoptions through September 30, 1996, excluding obsolete and superceded acts); Ribstein & Kobayashi, supra note 6, at 188-93 (updating Conference activities to September, 1993, excluding obsolete and superceded acts, and addressing state-by-state adoptions). An updated compilation of year-by-year Conference adoptions - relying on various sources including the UNIFORM LAWS ANNOTATED and the Conference's web site 〈http://www.nccusl.org〉 - appears in the APPENDIX to the article.
33. There are three reasons why it is difficult to account accurately for all the acts promulgated by the Conference. First, one must deal with severability of articles within a Conference adoption. Does each article of the Uniform Commercial Code count as an act, or does the Code represent one adoption? Second, one must decide how to account for revised acts adopted by the Conference. The Uniform Commercial Code, for example, has been the subject of extensive revision since its inception. Third, sources addressing Conference activities tend to disagree about the number of acts adopted by the organization. Although this is not a rigorous study of Conference adoptions, this paper does rely on Conference activities - especially the political machinations surrounding its decisions to act, the tenets governing how it should label a promulgation (i.e. as a uniform or model act), and the areas at which it chooses to direct its activities - to support its thesis. Therefore, a rough count of Conference adoptions is useful. One may obtain a cumulative view of Conference promulgations from the following sources. Walter Armstrong provides a year-to-year compilation of Conference adoptions through 1990 in WALTER P. ARMSTRONG, A CENTURY OF SERVICE: A CENTENNIAL HISTORY OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 165-77 (1991)(totaling 358 adoptions counting revisions). For an extensive compilation of the acts promulgated by the Conference and state-by-state adoptions of these acts, see HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS (1991)(over 300 promulgations); James J. Brudney, Mediation and Some Lessons from the Uniform State Law Experience, 13 OHIO ST. J. ON DISP. RESOL. 795, 801-02 (1998) (Conference adoptions through September 30, 1996, excluding obsolete and superceded acts); Ribstein & Kobayashi, supra note 6, at 188-93 (updating Conference activities to September, 1993, excluding obsolete and superceded acts, and addressing state-by-state adoptions). An updated compilation of year-by-year Conference adoptions - relying on various sources including the UNIFORM LAWS ANNOTATED and the Conference's web site 〈http://www.nccusl.org〉 - appears in the APPENDIX to the article.
34. There are three reasons why it is difficult to account accurately for all the acts promulgated by the Conference. First, one must deal with severability of articles within a Conference adoption. Does each article of the Uniform Commercial Code count as an act, or does the Code represent one adoption? Second, one must decide how to account for revised acts adopted by the Conference. The Uniform Commercial Code, for example, has been the subject of extensive revision since its inception. Third, sources addressing Conference activities tend to disagree about the number of acts adopted by the organization. Although this is not a rigorous study of Conference adoptions, this paper does rely on Conference activities - especially the political machinations surrounding its decisions to act, the tenets governing how it should label a promulgation (i.e. as a uniform or model act), and the areas at which it chooses to direct its activities - to support its thesis. Therefore, a rough count of Conference adoptions is useful. One may obtain a cumulative view of Conference promulgations from the following sources. Walter Armstrong provides a year-to-year compilation of Conference adoptions through 1990 in WALTER P. ARMSTRONG, A CENTURY OF SERVICE: A CENTENNIAL HISTORY OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 165-77 (1991)(totaling 358 adoptions counting revisions). For an extensive compilation of the acts promulgated by the Conference and state-by-state adoptions of these acts, see HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS (1991)(over 300 promulgations); James J. Brudney, Mediation and Some Lessons from the Uniform State Law Experience, 13 OHIO ST. J. ON DISP. RESOL. 795, 801-02 (1998) (Conference adoptions through September 30, 1996, excluding obsolete and superceded acts); Ribstein & Kobayashi, supra note 6, at 188-93 (updating Conference activities to September, 1993, excluding obsolete and superceded acts, and addressing state-by-state adoptions). An updated compilation of year-by-year Conference adoptions - relying on various sources including the UNIFORM LAWS ANNOTATED and the Conference's web site 〈http://www.nccusl.org〉 - appears in the APPENDIX to the article.
35. It is probably not appropriate to identify state adoption as the acid test for successes and failures of the Conference. Often the Conference neither anticipates nor desires uniform adoption of their acts. Rather some Conference acts are offered as models for the states to examine, discuss and use as they see fit. See infra notes 128-51 and accompanying text.
36. A diverse sampling of works relying on the Coase Theorem as their analytic tool appears supra notes 12-14.
37. See supra notes 13-14 and infra notes 20-30 and accompanying text.
38. Coase defines negative externalities or social costs as a harm caused to another because of the failure or unwillingness of the creator of the harm to assume its costs. See Coase, supra note 11, at 1-2. Those applying Coasean principles to interstate regulations argue that some states are exporting the costs of their regulations to other states and to those residing in other states. See supra notes 13-14 and accompanying text.
39. See, e.g., RICHARD NEELY, THE PRODUCT LIABILITY MESS: HOW BUSINESS CAN BE RESCUED FROM THE POLITICS UPSTATE COURTS (1988)(claiming that states are imposing costs on out-of-state defendants via their product liability regimes).
40. See, e.g., David B. Spence & Paula Murray, The Law, Economics and Politics of Federal Preemption Jurisprudence, 87 CAL. L. REV. 1125 (1999)(evaluating, using Coasean principles, interstate "Not-in-My-Back-Yard" claims associated with pollution disposal); Stewart, supra note 3.
41. See, e.g., David B. Spence & Paula Murray, The Law, Economics and Politics of Federal Preemption Jurisprudence, 87 CAL. L. REV. 1125 (1999)(evaluating, using Coasean principles, interstate "Not-in-My-Back-Yard" claims associated with pollution disposal); Stewart, supra note 3.
42. See, e.g., Cary, supra note 14.
43. See Note, To Form a More Perfect Union?: Federalism and Informal Interstate Cooperation, 102 HARV. L. REV. 842, 844-45 (1989) [hereinafter More Perfect Union](identifying the interstate externality phenomena as a "collective action" problem or prisoners' dilemma). When applied to interstate relations, the prisoners' dilemma operates as follows. First, each state, through its regulatory or fiscal policies, must choose between cooperating or competing with its sister states. If each state makes its individually maximizing choice, to compete, the joint result is minimized. Alternatively, the states can achieve the jointly maximizing outcome if each adopts its individually minimizing choice, to cooperate. Thus the dilemma. See generally ROBERT AXELROD, THE EVOLUTION OF COOPERATION 8-11 (1984)(explaining the prisoners' dilemma).
44. See Note, To Form a More Perfect Union?: Federalism and Informal Interstate Cooperation, 102 HARV. L. REV. 842, 844-45 (1989) [hereinafter More Perfect Union](identifying the interstate externality phenomena as a "collective action" problem or prisoners' dilemma). When applied to interstate relations, the prisoners' dilemma operates as follows. First, each state, through its regulatory or fiscal policies, must choose between cooperating or competing with its sister states. If each state makes its individually maximizing choice, to compete, the joint result is minimized. Alternatively, the states can achieve the jointly maximizing outcome if each adopts its individually minimizing choice, to cooperate. Thus the dilemma. See generally ROBERT AXELROD, THE EVOLUTION OF COOPERATION 8-11 (1984)(explaining the prisoners' dilemma).
45. Id.
46. Stated briefly, if all states choose to compete, then their decision yields the joint minimizing outcome. They are participating, therefore, in a race to the bottom. See, e.g., NEELY, supra note 21, at 57-79 (claiming that the states' use of their product liability rules as wealth creators fosters interstate competition and a race to the bottom); Cary, supra note 14, at 666 (arguing that state corporation laws used to attract corporate residents fosters an interstate race to the bottom).
47. Stated briefly, if all states choose to compete, then their decision yields the joint minimizing outcome. They are participating, therefore, in a race to the bottom. See, e.g., NEELY, supra note 21, at 57-79 (claiming that the states' use of their product liability rules as wealth creators fosters interstate competition and a race to the bottom); Cary, supra note 14, at 666 (arguing that state corporation laws used to attract corporate residents fosters an interstate race to the bottom).
48. See Coase, supra note 11, at 2-15. Coase's analysis differs significantly from that of A.C. Pigou, who identifies government as an appropriate vehicle for requiring the creators of external or social costs to internalize these costs, usually through the payment of some externality tax. Pigou's governmental response was the primary target for Coase's theorem. Coase believes that Pigou's government-intervention approach ignored the reciprocal nature of the externality problem and the ability of the parties to bargain to an efficient solution. See id. at 38-44. See also A.C. PIGOU, THE ECONOMICS OF WELFARE (1922). For a concise and accessible version of Pigou's views as they might apply to matters of private law, see JEFFREY G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 189-91 (1990); Spence & Murray, supra note 22, at 1159-87 (comparing Coasean and Pigouvian economic theories in environmental pollution cases).
49. See Coase, supra note 11, at 2-15. Coase's analysis differs significantly from that of A.C. Pigou, who identifies government as an appropriate vehicle for requiring the creators of external or social costs to internalize these costs, usually through the payment of some externality tax. Pigou's governmental response was the primary target for Coase's theorem. Coase believes that Pigou's government-intervention approach ignored the reciprocal nature of the externality problem and the ability of the parties to bargain to an efficient solution. See id. at 38-44. See also A.C. PIGOU, THE ECONOMICS OF WELFARE (1922). For a concise and accessible version of Pigou's views as they might apply to matters of private law, see JEFFREY G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 189-91 (1990); Spence & Murray, supra note 22, at 1159-87 (comparing Coasean and Pigouvian economic theories in environmental pollution cases).
50. See Coase, supra note 11, at 2-15. Coase's analysis differs significantly from that of A.C. Pigou, who identifies government as an appropriate vehicle for requiring the creators of external or social costs to internalize these costs, usually through the payment of some externality tax. Pigou's governmental response was the primary target for Coase's theorem. Coase believes that Pigou's government-intervention approach ignored the reciprocal nature of the externality problem and the ability of the parties to bargain to an efficient solution. See id. at 38-44. See also A.C. PIGOU, THE ECONOMICS OF WELFARE (1922). For a concise and accessible version of Pigou's views as they might apply to matters of private law, see JEFFREY G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 189-91 (1990); Spence & Murray, supra note 22, at 1159-87 (comparing Coasean and Pigouvian economic theories in environmental pollution cases).
51. See Coase, supra note 11, at 2-15. Coase's analysis differs significantly from that of A.C. Pigou, who identifies government as an appropriate vehicle for requiring the creators of external or social costs to internalize these costs, usually through the payment of some externality tax. Pigou's governmental response was the primary target for Coase's theorem. Coase believes that Pigou's government-intervention approach ignored the reciprocal nature of the externality problem and the ability of the parties to bargain to an efficient solution. See id. at 38-44. See also A.C. PIGOU, THE ECONOMICS OF WELFARE (1922). For a concise and accessible version of Pigou's views as they might apply to matters of private law, see JEFFREY G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 189-91 (1990); Spence & Murray, supra note 22, at 1159-87 (comparing Coasean and Pigouvian economic theories in environmental pollution cases).
52. Interstate compacts, informal agreements and uniform state laws are examples. See infra notes 50-76 and accompanying text.
53. See, e.g., LeBoeuf, supra note 14, at 584 (arguing that national intervention may be an appropriate response to state-created negative externalities arising from product liability rules); Victor E. Schwartz & Mark Behrens, Federal Product Liability Reform in 1997: History and Public Policy Support Its Enactment Now, 64 TENN. L. REV. 557, 601-02 (1997)(identifying problems with state-by-state approach to product liability asjustification for national product liability reform).
54. See, e.g., LeBoeuf, supra note 14, at 584 (arguing that national intervention may be an appropriate response to state-created negative externalities arising from product liability rules); Victor E. Schwartz & Mark Behrens, Federal Product Liability Reform in 1997: History and Public Policy Support Its Enactment Now, 64 TENN. L. REV. 557, 601-02 (1997)(identifying problems with state-by-state approach to product liability asjustification for national product liability reform).
55. Judge Richard Posner would identify the high costs of interstate cooperation as potential justification for national intervention: If either the benefits or the costs of a government action are felt outside the jurisdiction where the action is taken and the costs of negotiations between governments are assumed, for reasons I cannot begin to go into here, to be very high, then there is a strong argument that the responsibility for the action should be assigned to a higher level of government with a broader jurisdiction. Posner, supra note 14, at 45. See Nim Razook, The Perils of Pragmatic Preemption: A Caution About Using Efficiency Norms in Federal Preemption Decisions, 15 J.L. & POL. 37 (1999) [hereinafter Perils] (critiquing the use of Coasean analysis in federal preemption decisions).
56. Judge Richard Posner would identify the high costs of interstate cooperation as potential justification for national intervention: If either the benefits or the costs of a government action are felt outside the jurisdiction where the action is taken and the costs of negotiations between governments are assumed, for reasons I cannot begin to go into here, to be very high, then there is a strong argument that the responsibility for the action should be assigned to a higher level of government with a broader jurisdiction. Posner, supra note 14, at 45. See Nim Razook, The Perils of Pragmatic Preemption: A Caution About Using Efficiency Norms in Federal Preemption Decisions, 15 J.L. & POL. 37 (1999) [hereinafter Perils] (critiquing the use of Coasean analysis in federal preemption decisions).
57. See supra note 3.
58. For a sampling of works addressing the potentially negative effects of diverse regulations, see supra note 14 and accompanying text. Fiscal diversity can also pose problems. See, e.g., Enrich, supra note 10 (claiming that interstate competition to reduce state taxes are contrary to the individual states' interests).
59. See LA. REV. STAT. § 6:966 (West 1998).
60. OKLA. STAT. ANN. tit. 12 § 1571 (West 1999)(requiring, at defendant's discretion, a two party repossession hearing before creditor can seize the collateral).
61. The U.S. Supreme Court held that Louisiana's repossession law was constitutional, despite its more modest hearing requirement. See Mitchell v. W.T. Grant, Co., 416 U.S. 600 (1974)(holding that the Louisiana law met the minimum requirements of the fourteenth amendment). Compare Fuentes v. Shevin, 407 U.S. 67 (1972)(suggesting that an Oklahoma-like, two-party hearing is required to meet due process requirements).
62. The common conception of uniform laws is that they contain identical or virtually identical language. See GRAVES, supra note 6, at 12 (noting that uniform laws contain "identical legislative policies identically formulated"). In his history of the Conference, Walter Armstrong suggested that the American Bar Association's 1891 findings regarding the creation of uniform laws are consistent with this definition: [t]hat variant and conflicting laws produce in the states the special evils or inconveniences of perplexity, uncertainty, and confusion, with consequent waste, a tendency to hinder freedom of trade and to occasion unnecessary insecurity of contracts, resulting in needless litigation and miscarriage of justice. ARMSTRONG, supra note 16, at 20.
63. The common conception of uniform laws is that they contain identical or virtually identical language. See GRAVES, supra note 6, at 12 (noting that uniform laws contain "identical legislative policies identically formulated"). In his history of the Conference, Walter Armstrong suggested that the American Bar Association's 1891 findings regarding the creation of uniform laws are consistent with this definition: [t]hat variant and conflicting laws produce in the states the special evils or inconveniences of perplexity, uncertainty, and confusion, with consequent waste, a tendency to hinder freedom of trade and to occasion unnecessary insecurity of contracts, resulting in needless litigation and miscarriage of justice. ARMSTRONG, supra note 16, at 20.
64. See, e.g., GRAVES, supra note 6, at 3 (stating that uniform legislation presents "a useful aid in the solution of many of our present problems" rather than "an end in itself").
65. See U.C.C. § 1-201(19)(requiring good faith in commercial transactions).
66. See, e.g., OKLA. STAT. ANN. tit. 12 § 719 et. seq. (West 1988). While the UFMJA requires states to recognize most judgments, it also provides state courts the flexibility not to enforce judgments that they would not have to enforce under the full faith and credit clause. OKLA. STAT. ANN. tit. 12 § 720 (West 1988).
67. U.S. CONST. art. IV, § 1.
68. The argument for uniformity, like that involving federalism, appears to require either an instrumental or non-instrumental underpinning. The instrumental versus non-instrumental arguments regarding federalism and also regulatory uniformity appear briefly infra notes 81-82 and accompanying text.
69. As collective action problems, states seem often to have incentives to defect from harmonizing, uniform regulation. Their inclination to overcome the incentives presented by prisoners' dilemma-type choices is worthy of review. See supra notes 20-26 and accompanying text.
70. See infra notes 68-73 and accompanying text.
71. The ALI was created in 1923 to promote uniformity in the common law through the creation of Restatements. See ARMSTRONG, supra note 16, at 40 (explaining the creation of the ALI and differentiating its role from that of the National Conference of Commissioners on Uniform State Laws); Hessel E. Yntema, The Jurisprudence of Codification, in DAVID DUDLEY FIELD CENTENARY ESSAYS 257 (1949)(identifying the reasons for the Restatements as "superior economy in the ascertainment of law, clarity and conciseness in the statement of legal principles, . . . increased certainty in the law, reduction of the ex post facto legislation inherent in the case law, facilitation of reform and diffusion among the people of a more accurate knowledge of their rights and liabilities").
72. The ALI was created in 1923 to promote uniformity in the common law through the creation of Restatements. See ARMSTRONG, supra note 16, at 40 (explaining the creation of the ALI and differentiating its role from that of the National Conference of Commissioners on Uniform State Laws); Hessel E. Yntema, The Jurisprudence of Codification, in DAVID DUDLEY FIELD CENTENARY ESSAYS 257 (1949)(identifying the reasons for the Restatements as "superior economy in the ascertainment of law, clarity and conciseness in the statement of legal principles, . . . increased certainty in the law, reduction of the ex post facto legislation inherent in the case law, facilitation of reform and diffusion among the people of a more accurate knowledge of their rights and liabilities").
73. Roscoe Pound, Unification of Law, 20 A.B.A.J. 695 (1934).
74. Id.
75. For a general compilation of ALI publications, including its RESTATEMENTS OF THE LAW, see the ALI Catalog of Publications at 〈http://www.ali.org/ali/catpage.htm〉.
76. See Eric Stein, Uniformity and Diversity in a Divided-Power System: The United States' Experience, 61 WASH. L. REV. 1081, 1083 (1986)(suggesting that state corporation laws are so complex that one must be conversant with "fifty sets of state corporation laws").
77. The activities of the Conference to adopt uniform acts continues apace. See infra note 137 and accompanying text (noting the Conference activities at its July, 1999 annual meeting in Denver). See also Appendix. Arguments for uniform statutes as opposed to common law regimes also persist. See supra notes 36-37 and accompanying text. The restatements are, after all, syntheses rather than codifications of the common law and are not binding upon the states. They certainly do not substitute for uniform statutes. See ARMSTRONG, supra note 16, at 40 (acknowledging that the restatements provide a "digest" of the law that differs "fundamentally from the statutory program of the Conference").
78. See WELDON V. BARTON, INTERSTATE COMPACTS IN THE POLITICAL PROCESS (1967)(providing general account of states' use of compacts); Jill Elaine Hasday, Interstate Compacts in a Democratic Society: The Problem af Permanency, 49 FLA. L. REV. 1 (1997)(addressing the history and utility of interstate compacts).
79. See WELDON V. BARTON, INTERSTATE COMPACTS IN THE POLITICAL PROCESS (1967)(providing general account of states' use of compacts); Jill Elaine Hasday, Interstate Compacts in a Democratic Society: The Problem af Permanency, 49 FLA. L. REV. 1 (1997)(addressing the history and utility of interstate compacts).
80. BARTON, supra note 50; at 3; Hasday, supra note 50, at 3-4.
81. BARTON, supra note 50; at 3; Hasday, supra note 50, at 3-4.
82. Hasday, supra note 50, at 4.
83. Barton argues that compacts work best when applied to the administration of a single facility that crosses state lines, especially when the administrative problems are few See BARTON, supra note 50, at 4.
84. New York-New Jersey Port Authority Compact, ch. 77, 42 Stat. 174 (1921).
85. See Hasday, supra note 50, at 9-10 (noting the differences in administrative difficulties associated with the various types of compacts).
86. See id. at 9 (claiming that these types of compacts require decision-makers to "make choices that the compacting state governments did not anticipate at the time of enactment").
87. See id. at 10 (arguing that these long-term compacts "seriously disable the democratic institutions" of the states "from significantly altering their plans").
88. See id. at 6. In such case, the collective action problem - that arising from the inability or unwillingness of separate states to cooperate - becomes an interregional problem where compacting states might band against other states or regions.
89. See Susan Borreson, Texas Firms May Collect Millions in Florida Tobacco Suit, TEX. LAW., Dec. 15, 1997, at 4 (noting both the potential settlement of and improprieties associated with the multi-state suit against the tobacco companies); Alison Frankel, After the Smoke Cleared, THE AM. LAW., Jan./Feb. 1999, at 48 (reflecting on the states' settlement with the tobacco companies).
90. See Susan Borreson, Texas Firms May Collect Millions in Florida Tobacco Suit, TEX. LAW., Dec. 15, 1997, at 4 (noting both the potential settlement of and improprieties associated with the multi-state suit against the tobacco companies); Alison Frankel, After the Smoke Cleared, THE AM. LAW., Jan./Feb. 1999, at 48 (reflecting on the states' settlement with the tobacco companies).
91. See More Perfect Union, supra note 24 (discussing the National Association of Attorneys General [NAAG] guideline agreement related to enforcement of state antitrust vertical restraint laws).
92. See id. at 843 (citing the broad NAAG guidelines as a challenge to interstate cooperation).
93. Id. at 847-50.
94. By 1912, twenty years after the Conference was formed, all states had sent representatives - commissioners - to the Conference. See Walter P. Armstrong, Jr., Uniform States Laws and the National Conference, ST. GOV'T, Summer 1962 at 185-86; Brudney, supra note 16, at 797 (noting that the District of Columbia and Puerto Rico also send commissioners to the Conference).
95. By 1912, twenty years after the Conference was formed, all states had sent representatives - commissioners - to the Conference. See Walter P. Armstrong, Jr., Uniform States Laws and the National Conference, ST. GOV'T, Summer 1962 at 185-86; Brudney, supra note 16, at 797 (noting that the District of Columbia and Puerto Rico also send commissioners to the Conference).
96. The Conference has historically been both a promulgating and lobbying organization. Walter Armstrong argues, however, that the commissioners' lobbying efforts occur "without an ax to grind, and without a special interest to represent." Armstrong, supra note 63, at 189. Others have suggested that the Conference itself is a special interest and that the commissioners' lobbying efforts are directed primarily at justifying and retaining their positions. See Brudney, supra note 16, at 806; Ribstein & Kobayashi, supra note 6, at 144-46 (citing the commissioners' ability to enhance their reputations, travel to Conference activity sites and foster goodwill with Conference constituents as motivation for their fidelity to the promulgation and lobbying effort).
97. The Conference has historically been both a promulgating and lobbying organization. Walter Armstrong argues, however, that the commissioners' lobbying efforts occur "without an ax to grind, and without a special interest to represent." Armstrong, supra note 63, at 189. Others have suggested that the Conference itself is a special interest and that the commissioners' lobbying efforts are directed primarily at justifying and retaining their positions. See Brudney, supra note 16, at 806; Ribstein & Kobayashi, supra note 6, at 144-46 (citing the commissioners' ability to enhance their reputations, travel to Conference activity sites and foster goodwill with Conference constituents as motivation for their fidelity to the promulgation and lobbying effort).
98. The Conference has historically been both a promulgating and lobbying organization. Walter Armstrong argues, however, that the commissioners' lobbying efforts occur "without an ax to grind, and without a special interest to represent." Armstrong, supra note 63, at 189. Others have suggested that the Conference itself is a special interest and that the commissioners' lobbying efforts are directed primarily at justifying and retaining their positions. See Brudney, supra note 16, at 806; Ribstein & Kobayashi, supra note 6, at 144-46 (citing the commissioners' ability to enhance their reputations, travel to Conference activity sites and foster goodwill with Conference constituents as motivation for their fidelity to the promulgation and lobbying effort).
99. Armstrong, supra note 63, at 185.
100. See James J. White, Ex Proprio Vigore, 89 MICH. L. REV. 2096, 2099 (1991)(recognizing the Conference's historic, regulatory niche but noting the current paucity of regulatory areas "reserved to the states").
101. 304 U.S. 64 (1938).
102. 16 Pet. 1 (1842).
103. James White cites the case of Wickard v. Filbum, 317 U.S. 111 (1942) as the seminal decision granting this power to Congress. See White, supra note 66.
104. James White cites the case of Wickard v. Filbum, 317 U.S. 111 (1942) as the seminal decision granting this power to Congress. See White, supra note 66.
105. See Richard E. Levy & Stephen R. McAllister, Defining the Roles of the National and State Governments in the American Federal System: A Symposium, 45 U. KAN. L. REV. 971 (1997)(stating that "federalism generally has meant whatever Congress decided it meant, and has been enforced only by Congressional reluctance to regulate areas of traditional state authority");
106. H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 633 (1993)(claiming that there has been no "law" of federalism for most of the last half century);
107. Perils, supra note 30, at 38-39 (noting that this plenary power need not influence the propensity of commentators to critique issues of national preemption). Some have suggested the resurrection of legal federalism based upon
108. See, e.g., Calabresi, supra note 14.
109. Allison Dunham, A History of the National Conference of Commissioners on Uniform State Laws, 30 LAW & CONTEMP. PROBS. 233, 237 (1965).
110. Kathleen Patchel, Interest Croup Politics, Federalism, and the Uniform Laws Process: Some Lessons from the Uniform Commercial Code, 78 MINN. L. REV. 83, 148 (1993).
111. See Dunham, supra note 71; Albert J. Harno, Uniform State Laws and the Federal System, 2 OKLA. L. REV. 38, 46 (1949)(citing the maintenance of "an equilibrium in the distribution of powers between the national and state governments" as the primary impetus for the Conference); White, supra note 65.
112. See Dunham, supra note 71; Albert J. Harno, Uniform State Laws and the Federal System, 2 OKLA. L. REV. 38, 46 (1949)(citing the maintenance of "an equilibrium in the distribution of powers between the national and state governments" as the primary impetus for the Conference); White, supra note 65.
113. See Dunham, supra note 71; Albert J. Harno, Uniform State Laws and the Federal System, 2 OKLA. L. REV. 38, 46 (1949)(citing the maintenance of "an equilibrium in the distribution of powers between the national and state governments" as the primary impetus for the Conference); White, supra note 65.
114. Dunham, supra note 71.
115. See U.S. CONST. art. VI ("This constitution and the Laws ... which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby...").
116. See Stein, supra note 48, at 86 (comparing the dramatic ability of federal legislation to mandate uniform standards to that uniformity imposed by a "legislature in a unitary state").
117. Id. at 85.
118. This is so because one law, rather than fifty, will create means-based uniformity. See supra notes 75-77 and accompanying text.
119. An example is the debate over nationalization of product liability law. Congress' most recent effort to reform this area with uniform legislation was met with a Presidential veto. See supra note 5. Previous attempts by Congress to adopt federal product liability reform provoked strong debates over whether such an incursion was a proper exercise of Congressional power. Quoting Delegate Bernard Cohen, representing the National Conference of State Legislatures, the Senate minority report on the Product Liability Fairness Act raised the propriety of federal preemption in this area. ... federal preemption should not occur unless it [can] be proved that the variation in state laws is significantly impeding commerce among the states and unless the specific legislative response is the only way to resolve the conflict. . . . [T]his burden has not been met with respect to product liability laws. Product Liability Fairness Act, S. REP. NO. 102-215 (1992) [hereinafter Senate Report]. The propriety of national preemption of historically state-governed areas has also been criticized. See, e.g., Perils, supra note 30.
120. An example is the debate over nationalization of product liability law. Congress' most recent effort to reform this area with uniform legislation was met with a Presidential veto. See supra note 5. Previous attempts by Congress to adopt federal product liability reform provoked strong debates over whether such an incursion was a proper exercise of Congressional power. Quoting Delegate Bernard Cohen, representing the National Conference of State Legislatures, the Senate minority report on the Product Liability Fairness Act raised the propriety of federal preemption in this area. ... federal preemption should not occur unless it [can] be proved that the variation in state laws is significantly impeding commerce among the states and unless the specific legislative response is the only way to resolve the conflict. . . . [T]his burden has not been met with respect to product liability laws. Product Liability Fairness Act, S. REP. NO. 102-215 (1992) [hereinafter Senate Report]. The propriety of national preemption of historically state-governed areas has also been criticized. See, e.g., Perils, supra note 30.
121. See id. See also Nim Razook, A Contract-Enhancing Norm Limiting Federal Preemption of Presumptively State Domains, 11 BYU J. PUB. L. 163, 176-78 (1997)(suggesting caution for federal preemption of "presumptively state domains" and offering a contract basis for determining the appropriateness of such preemption).
122. See, e.g., Calabresi, supra note 14, at 775-79 (identifying instrumental reasons for local and for national regulatory control); Erwin Chemerinsky, Formalism and Functionalism in Federalism Analysis, 13 GA. ST. U. L. REV. 959, 960 (1997)(arguing that any analysis of federalism "must be about ... what arrangement will best lead to effective government); Perils, supra note 30, at 50-53 (discussing the distinction between instrumental and non-instrumental federalism).
123. See, e.g., Calabresi, supra note 14, at 775-79 (identifying instrumental reasons for local and for national regulatory control); Erwin Chemerinsky, Formalism and Functionalism in Federalism Analysis, 13 GA. ST. U. L. REV. 959, 960 (1997)(arguing that any analysis of federalism "must be about ... what arrangement will best lead to effective government); Perils, supra note 30, at 50-53 (discussing the distinction between instrumental and non-instrumental federalism).
124. See, e.g., Calabresi, supra note 14, at 775-79 (identifying instrumental reasons for local and for national regulatory control); Erwin Chemerinsky, Formalism and Functionalism in Federalism Analysis, 13 GA. ST. U. L. REV. 959, 960 (1997)(arguing that any analysis of federalism "must be about ... what arrangement will best lead to effective government); Perils, supra note 30, at 50-53 (discussing the distinction between instrumental and non-instrumental federalism).
125. See ROBERT H. BORK, THE TEMPTING OF AMERICA 53 (1990)(arguing that federalism is the constitutional method of preserving liberty); Douglas V. Verney, Federalism, Federative Systems, and Federations: The United States, Canada, and India, 25 PUBLIUS:J. FEDERALISM 81, 86 (1995)(stating that Americans "view federalism as an end in itself, not simply a convenient means of distributing power as it has tended to be in Canada and India").
126. See ROBERT H. BORK, THE TEMPTING OF AMERICA 53 (1990)(arguing that federalism is the constitutional method of preserving liberty); Douglas V. Verney, Federalism, Federative Systems, and Federations: The United States, Canada, and India, 25 PUBLIUS:J. FEDERALISM 81, 86 (1995)(stating that Americans "view federalism as an end in itself, not simply a convenient means of distributing power as it has tended to be in Canada and India").
127. See Senate Report, supra note 79, at 11 (citing a National Governors Association report arguing that "individual states cannot address the problems of the product liability system effectively, because reform within one state does little to resolve the tort litigation problems facing those who deal in an interstate market").
128. See id. at 67.
129. See GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 6 (1982). Dean Calabresi calls this the "functional" role of the courts that have come to believe that their decisions must be "responsive to current needs and current majorities, and as abhorring discriminations, special treatments, and inconsistencies not required by current majorities."
130. As controversial as this may sound, Calabresi makes an effective case that this has come to describe how courts evaluate legislation. See id. at 164 (stating that common law courts are the only institutions that can decide "when a rule has come to be sufficiently out of phase with the whole legal framework so that, whatever its age, it can only stand if a current majoritarian or representative body reaffirms it").
131. See Perils, supra note 30, at 48-50 (arguing that Congress should be cautious in preempting areas of private law because such preemption can cast a particularly long shadow over the corrective capacity of the common law).
132. Among the most significant examples of federally preemptive legislation are anti-trust, pure food and drug, protection of labor, securities, civil rights and consumer laws. For a general treatment of national incursions into state domains, see GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM (1963)(suggesting that often business interests championed social legislation); William Graebner, Federalism in the Progressive Era: A Structural Interpretation of Reform, in GROWTH OF THE REGULATORY STATE, 1900-1917 102 (Robert F. Himmelberg ed., 1994) (concentrating on federal preemption during the Progressive era). For specific accounts of the nation-state tensions associated with federal preemption into historically state-governed areas, see WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991)(labor law); BURKE MARSHALL, FEDERALISM AND CIVIL RIGHTS (1964)(civil rights); DONNA J. WOOD, STRATEGIC USES OF PUBLIC POLICY: BUSINESS AND GOVERNMENT IN THE PROGRESSIVE ERA (1986)(pure food and drug); Federal Bar Association, FEDERAL SECURITIES LAWS: LEGISLATIVE HISTORY (1983)(securities laws); Razook, supra note 80, at 176-77(consumer laws); C.F. Taeush, Business and the Sherman Act, in ANTITRUST AND REGULATION (Giles H. Burgess, Jr. ed., 1992)(antitrust law).
133. Among the most significant examples of federally preemptive legislation are anti-trust, pure food and drug, protection of labor, securities, civil rights and consumer laws. For a general treatment of national incursions into state domains, see GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM (1963)(suggesting that often business interests championed social legislation); William Graebner, Federalism in the Progressive Era: A Structural Interpretation of Reform, in GROWTH OF THE REGULATORY STATE, 1900-1917 102 (Robert F. Himmelberg ed., 1994) (concentrating on federal preemption during the Progressive era). For specific accounts of the nation-state tensions associated with federal preemption into historically state-governed areas, see WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991)(labor law); BURKE MARSHALL, FEDERALISM AND CIVIL RIGHTS (1964)(civil rights); DONNA J. WOOD, STRATEGIC USES OF PUBLIC POLICY: BUSINESS AND GOVERNMENT IN THE PROGRESSIVE ERA (1986)(pure food and drug); Federal Bar Association, FEDERAL SECURITIES LAWS: LEGISLATIVE HISTORY (1983)(securities laws); Razook, supra note 80, at 176-77(consumer laws); C.F. Taeush, Business and the Sherman Act, in ANTITRUST AND REGULATION (Giles H. Burgess, Jr. ed., 1992)(antitrust law).
134. Among the most significant examples of federally preemptive legislation are anti-trust, pure food and drug, protection of labor, securities, civil rights and consumer laws. For a general treatment of national incursions into state domains, see GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM (1963)(suggesting that often business interests championed social legislation); William Graebner, Federalism in the Progressive Era: A Structural Interpretation of Reform, in GROWTH OF THE REGULATORY STATE, 1900-1917 102 (Robert F. Himmelberg ed., 1994) (concentrating on federal preemption during the Progressive era). For specific accounts of the nation-state tensions associated with federal preemption into historically state-governed areas, see WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991)(labor law); BURKE MARSHALL, FEDERALISM AND CIVIL RIGHTS (1964)(civil rights); DONNA J. WOOD, STRATEGIC USES OF PUBLIC POLICY: BUSINESS AND GOVERNMENT IN THE PROGRESSIVE ERA (1986)(pure food and drug); Federal Bar Association, FEDERAL SECURITIES LAWS: LEGISLATIVE HISTORY (1983)(securities laws); Razook, supra note 80, at 176-77(consumer laws); C.F. Taeush, Business and the Sherman Act, in ANTITRUST AND REGULATION (Giles H. Burgess, Jr. ed., 1992)(antitrust law).
135. Among the most significant examples of federally preemptive legislation are anti-trust, pure food and drug, protection of labor, securities, civil rights and consumer laws. For a general treatment of national incursions into state domains, see GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM (1963)(suggesting that often business interests championed social legislation); William Graebner, Federalism in the Progressive Era: A Structural Interpretation of Reform, in GROWTH OF THE REGULATORY STATE, 1900-1917 102 (Robert F. Himmelberg ed., 1994) (concentrating on federal preemption during the Progressive era). For specific accounts of the nation-state tensions associated with federal preemption into historically state-governed areas, see WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991)(labor law); BURKE MARSHALL, FEDERALISM AND CIVIL RIGHTS (1964)(civil rights); DONNA J. WOOD, STRATEGIC USES OF PUBLIC POLICY: BUSINESS AND GOVERNMENT IN THE PROGRESSIVE ERA (1986)(pure food and drug); Federal Bar Association, FEDERAL SECURITIES LAWS: LEGISLATIVE HISTORY (1983)(securities laws); Razook, supra note 80, at 176-77(consumer laws); C.F. Taeush, Business and the Sherman Act, in ANTITRUST AND REGULATION (Giles H. Burgess, Jr. ed., 1992)(antitrust law).
136. Among the most significant examples of federally preemptive legislation are anti-trust, pure food and drug, protection of labor, securities, civil rights and consumer laws. For a general treatment of national incursions into state domains, see GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM (1963)(suggesting that often business interests championed social legislation); William Graebner, Federalism in the Progressive Era: A Structural Interpretation of Reform, in GROWTH OF THE REGULATORY STATE, 1900-1917 102 (Robert F. Himmelberg ed., 1994) (concentrating on federal preemption during the Progressive era). For specific accounts of the nation-state tensions associated with federal preemption into historically state-governed areas, see WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991)(labor law); BURKE MARSHALL, FEDERALISM AND CIVIL RIGHTS (1964)(civil rights); DONNA J. WOOD, STRATEGIC USES OF PUBLIC POLICY: BUSINESS AND GOVERNMENT IN THE PROGRESSIVE ERA (1986)(pure food and drug); Federal Bar Association, FEDERAL SECURITIES LAWS: LEGISLATIVE HISTORY (1983)(securities laws); Razook, supra note 80, at 176-77(consumer laws); C.F. Taeush, Business and the Sherman Act, in ANTITRUST AND REGULATION (Giles H. Burgess, Jr. ed., 1992)(antitrust law).
137. Among the most significant examples of federally preemptive legislation are anti-trust, pure food and drug, protection of labor, securities, civil rights and consumer laws. For a general treatment of national incursions into state domains, see GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM (1963)(suggesting that often business interests championed social legislation); William Graebner, Federalism in the Progressive Era: A Structural Interpretation of Reform, in GROWTH OF THE REGULATORY STATE, 1900-1917 102 (Robert F. Himmelberg ed., 1994) (concentrating on federal preemption during the Progressive era). For specific accounts of the nation-state tensions associated with federal preemption into historically state-governed areas, see WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991)(labor law); BURKE MARSHALL, FEDERALISM AND CIVIL RIGHTS (1964)(civil rights); DONNA J. WOOD, STRATEGIC USES OF PUBLIC POLICY: BUSINESS AND GOVERNMENT IN THE PROGRESSIVE ERA (1986)(pure food and drug); Federal Bar Association, FEDERAL SECURITIES LAWS: LEGISLATIVE HISTORY (1983)(securities laws); Razook, supra note 80, at 176-77(consumer laws); C.F. Taeush, Business and the Sherman Act, in ANTITRUST AND REGULATION (Giles H. Burgess, Jr. ed., 1992)(antitrust law).
138. Among the most significant examples of federally preemptive legislation are anti-trust, pure food and drug, protection of labor, securities, civil rights and consumer laws. For a general treatment of national incursions into state domains, see GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM (1963)(suggesting that often business interests championed social legislation); William Graebner, Federalism in the Progressive Era: A Structural Interpretation of Reform, in GROWTH OF THE REGULATORY STATE, 1900-1917 102 (Robert F. Himmelberg ed., 1994) (concentrating on federal preemption during the Progressive era). For specific accounts of the nation-state tensions associated with federal preemption into historically state-governed areas, see WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991)(labor law); BURKE MARSHALL, FEDERALISM AND CIVIL RIGHTS (1964)(civil rights); DONNA J. WOOD, STRATEGIC USES OF PUBLIC POLICY: BUSINESS AND GOVERNMENT IN THE PROGRESSIVE ERA (1986)(pure food and drug); Federal Bar Association, FEDERAL SECURITIES LAWS: LEGISLATIVE HISTORY (1983)(securities laws); Razook, supra note 80, at 176-77(consumer laws); C.F. Taeush, Business and the Sherman Act, in ANTITRUST AND REGULATION (Giles H. Burgess, Jr. ed., 1992)(antitrust law).
139. Among the most significant examples of federally preemptive legislation are anti-trust, pure food and drug, protection of labor, securities, civil rights and consumer laws. For a general treatment of national incursions into state domains, see GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM (1963)(suggesting that often business interests championed social legislation); William Graebner, Federalism in the Progressive Era: A Structural Interpretation of Reform, in GROWTH OF THE REGULATORY STATE, 1900-1917 102 (Robert F. Himmelberg ed., 1994) (concentrating on federal preemption during the Progressive era). For specific accounts of the nation-state tensions associated with federal preemption into historically state-governed areas, see WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991)(labor law); BURKE MARSHALL, FEDERALISM AND CIVIL RIGHTS (1964)(civil rights); DONNA J. WOOD, STRATEGIC USES OF PUBLIC POLICY: BUSINESS AND GOVERNMENT IN THE PROGRESSIVE ERA (1986)(pure food and drug); Federal Bar Association, FEDERAL SECURITIES LAWS: LEGISLATIVE HISTORY (1983)(securities laws); Razook, supra note 80, at 176-77(consumer laws); C.F. Taeush, Business and the Sherman Act, in ANTITRUST AND REGULATION (Giles H. Burgess, Jr. ed., 1992)(antitrust law).
140. See id. These political machinations arise primarily from Congress' virtually plenary power to regulate interstate commerce. See supra note 70 and accompanying text.
141. Razook, supra note 80. Others have also attempted to identify some unifying, normative conception of federalism. See, e.g., Susan Bartlett Foote, Beyond the Politics of Federalism: An Alternative Model, 1 YALE J. ON REG. 217 (1984)(arguing that five categories provide discrete regulatory boundaries between national and state regulation); C. Boyden Gray, Regulation and Federalism, 1 YALE J. ON REG. 93 (1983)(requiring strong demonstration of necessity for federal preemption of presumptively state domains).
142. Razook, supra note 80. Others have also attempted to identify some unifying, normative conception of federalism. See, e.g., Susan Bartlett Foote, Beyond the Politics of Federalism: An Alternative Model, 1 YALE J. ON REG. 217 (1984)(arguing that five categories provide discrete regulatory boundaries between national and state regulation); C. Boyden Gray, Regulation and Federalism, 1 YALE J. ON REG. 93 (1983)(requiring strong demonstration of necessity for federal preemption of presumptively state domains).
143. Razook, supra note 80. Others have also attempted to identify some unifying, normative conception of federalism. See, e.g., Susan Bartlett Foote, Beyond the Politics of Federalism: An Alternative Model, 1 YALE J. ON REG. 217 (1984)(arguing that five categories provide discrete regulatory boundaries between national and state regulation); C. Boyden Gray, Regulation and Federalism, 1 YALE J. ON REG. 93 (1983)(requiring strong demonstration of necessity for federal preemption of presumptively state domains).
144. Razook, supra note 80, at 176-78.
145. See id. at 178-81 (arguing that a national product liability law is inconsistent with contract-enhancement, a unifying theme in twentieth-century federal preemption decisions).
146. See supra notes 18-30 and accompanying text.
147. Externalities arise, for example, from both rigorous and lax environmental standards. While one state's rigorous standards often inure to the benefit of its downstream or down state neighbor, lax environmental standards often create negative externalities for other states. See, e.g., Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210, 1212 (1992)(noting that externalities can create both benefits and costs for other states).
148. See supra notes 27-30 and accompanying text.
149. See Perils, supra note 30, at 54-59 (arguing that those advocating national product liability reform have demonstrated neither the existence of net, negative externalities arising from the states' product liability regimes nor the states' inability to reform their own laws). Compare LeBoeuf, supra note 14 (claiming that federal preemption is an appropriate response to the negative externalities arising from the states' diverse product liability regimes). Richard Revesz has challenged the idea that the states' creation of net negative externalities and the associated race-to-the-bottom represents, in all situations, a defensible case for federal intervention.
150. See Revesz, supra note 94, at 1244-48 (applying this analysis to environmental regulation).
151. See, e.g., Perils, supra note 30, at 56 (noting the states' efforts to reform their product liability rules concurrently with Congressional reform efforts).
152. Uniform measures, once again, mean identical rules. See supra notes 32-37 and accompanying text.
153. White, supra note 66, at 2096.
154. See Brudney, supra note 16, at 797-98 (noting the composition of the Conference, method of appointment for commissioners and the methods of funding for commissioner service); Fred H. Miller, The Future of Uniform State Legislation in the Private Law Area, 79 MINN. L. REV. 861, 865-66 (1995); Ribstein & Kobayashi, supra note 6, at 144-46 (addressing commissioner tenure, pay and other political considerations).
155. See Brudney, supra note 16, at 797-98 (noting the composition of the Conference, method of appointment for commissioners and the methods of funding for commissioner service); Fred H. Miller, The Future of Uniform State Legislation in the Private Law Area, 79 MINN. L. REV. 861, 865-66 (1995); Ribstein & Kobayashi, supra note 6, at 144-46 (addressing commissioner tenure, pay and other political considerations).
156. See Brudney, supra note 16, at 797-98 (noting the composition of the Conference, method of appointment for commissioners and the methods of funding for commissioner service); Fred H. Miller, The Future of Uniform State Legislation in the Private Law Area, 79 MINN. L. REV. 861, 865-66 (1995); Ribstein & Kobayashi, supra note 6, at 144-46 (addressing commissioner tenure, pay and other political considerations).
157. See Brudney, supra note 16, at 806-07 (suggesting that interest groups actually participate in the creation of the Conference's promulgations); Ribstein & Kobayashi, supra note 6, at 142-46 (identifying "business groups," the commissioners, and lawyers as among the Conference's most important interest groups). See also infra notes 151-71 and accompanying text (examining the claim that consumers have little voice in Conference decision-making).
158. See Brudney, supra note 16, at 806-07 (suggesting that interest groups actually participate in the creation of the Conference's promulgations); Ribstein & Kobayashi, supra note 6, at 142-46 (identifying "business groups," the commissioners, and lawyers as among the Conference's most important interest groups). See also infra notes 151-71 and accompanying text (examining the claim that consumers have little voice in Conference decision-making).
159. See infra notes 103-72 and accompanying text (examining both the process and products of the Conference's decision-making).
160. Proposals for uniform or model acts come from various sources, but all are referred to a "Scope and Program Committee." That committee examines the proposal and makes a recommendation to the Conference's Executive Committee on whether the proposal is worthy of Conference action. If the Executive Committee accepts the Standing Committee's recommendation to act, the Executive Committee or Conference President appoints a drafting committee led by a Reporter who is responsible for advising the committee on the policy issues and potential resolutions associated with their efforts. The committee is responsible for soliciting input from outside interest groups and considering this information in formulating their drafts. A majority of the commissioners must approve a draft at an annual meeting for it to be a finished "act." See Brudney, supra note 16, at 798-800; Miller, supra note 99, at 868-69.
161. Proposals for uniform or model acts come from various sources, but all are referred to a "Scope and Program Committee." That committee examines the proposal and makes a recommendation to the Conference's Executive Committee on whether the proposal is worthy of Conference action. If the Executive Committee accepts the Standing Committee's recommendation to act, the Executive Committee or Conference President appoints a drafting committee led by a Reporter who is responsible for advising the committee on the policy issues and potential resolutions associated with their efforts. The committee is responsible for soliciting input from outside interest groups and considering this information in formulating their drafts. A majority of the commissioners must approve a draft at an annual meeting for it to be a finished "act." See Brudney, supra note 16, at 798-800; Miller, supra note 99, at 868-69.
162. For a compilation of the Conference's current drafts and approved promulgations, see 〈http://www.law.upenn.edu/bll/ulc/ulc_frame.htm〉.
163. For an example of a Conference promulgation accompanied by an extensive prefatory note, see "The Uniform Arbitration Act," 〈http://www.law.upenn.edu/bll/ulc/fnact99/1920_69/uaa55.htm〉. For an example of section by section comments, see "The Uniform Mediation Act," 〈http://www.law.upenn.edu/bll/ulc/mediat/med399.htm〉.
164. Professor Fred Miller provides a strong defense of Conference actions, arguing that the Conference is the only appropriate source of uniform legislation in the private law area. See Miller, supra note 100, at 861-68.
165. A preference for uniform state laws over Congressional incursion can be documented for as long as the Conference has existed. See TERRY SANFORD, STORM OVER THE STATES 114 (1967) (citing the creation and passage by states of uniform state laws as an example of states working together to obviate federal intervention); Dunham, supra note 71, at 237 (stating that the states' adoption of uniform state laws removes "any excuse for the federal government to absorb powers" of the states); Albert J. Harno, Uniform State Laws and the Federal System, 2 OKLA. L. REV. 38, 45 (1949)(suggesting that uniform state laws "maintain an equilibrium in the distribution of powers between the national and state governments"); Miller, supra note 100, at 863 (noting that uniform state laws are preferable to "presumptively undesirable" Congressional incursions into matters of private law).
166. A preference for uniform state laws over Congressional incursion can be documented for as long as the Conference has existed. See TERRY SANFORD, STORM OVER THE STATES 114 (1967) (citing the creation and passage by states of uniform state laws as an example of states working together to obviate federal intervention); Dunham, supra note 71, at 237 (stating that the states' adoption of uniform state laws removes "any excuse for the federal government to absorb powers" of the states); Albert J. Harno, Uniform State Laws and the Federal System, 2 OKLA. L. REV. 38, 45 (1949)(suggesting that uniform state laws "maintain an equilibrium in the distribution of powers between the national and state governments"); Miller, supra note 100, at 863 (noting that uniform state laws are preferable to "presumptively undesirable" Congressional incursions into matters of private law).
167. A preference for uniform state laws over Congressional incursion can be documented for as long as the Conference has existed. See TERRY SANFORD, STORM OVER THE STATES 114 (1967) (citing the creation and passage by states of uniform state laws as an example of states working together to obviate federal intervention); Dunham, supra note 71, at 237 (stating that the states' adoption of uniform state laws removes "any excuse for the federal government to absorb powers" of the states); Albert J. Harno, Uniform State Laws and the Federal System, 2 OKLA. L. REV. 38, 45 (1949)(suggesting that uniform state laws "maintain an equilibrium in the distribution of powers between the national and state governments"); Miller, supra note 100, at 863 (noting that uniform state laws are preferable to "presumptively undesirable" Congressional incursions into matters of private law).
168. A preference for uniform state laws over Congressional incursion can be documented for as long as the Conference has existed. See TERRY SANFORD, STORM OVER THE STATES 114 (1967) (citing the creation and passage by states of uniform state laws as an example of states working together to obviate federal intervention); Dunham, supra note 71, at 237 (stating that the states' adoption of uniform state laws removes "any excuse for the federal government to absorb powers" of the states); Albert J. Harno, Uniform State Laws and the Federal System, 2 OKLA. L. REV. 38, 45 (1949)(suggesting that uniform state laws "maintain an equilibrium in the distribution of powers between the national and state governments"); Miller, supra note 100, at 863 (noting that uniform state laws are preferable to "presumptively undesirable" Congressional incursions into matters of private law).
169. Except for Louisiana, which has adopted some of the Code's articles, all states have adopted the UCC, although there are some variations among the states in their adoption of the latest versions. See OKLA. STAT. ANN. tit. 12A at 1 (West Supp. 1999). See generally UNIFORM COMMERCIAL CODE 1A-3B U.L.A.
170. See Armstrong, supra note 63, at 190 (citing the UCC as the Conference's "greatest single achievement").
171. There were those who advocated a national commercial code. See, e.g., Robert Braucher, Federal Enactment of the Uniform Commercial Code, 16 L. & CONTEMP. PROB. 100 (1951); William A. Schnader, The Uniform Commercial Code - Today and Tomorrow, 22 BUS. LAW. 229, 232 (1966)(recommending Congressional adoption of the UCC as amended in 1962 should the states not adopt the amendments by 1968).
172. There were those who advocated a national commercial code. See, e.g., Robert Braucher, Federal Enactment of the Uniform Commercial Code, 16 L. & CONTEMP. PROB. 100 (1951); William A. Schnader, The Uniform Commercial Code - Today and Tomorrow, 22 BUS. LAW. 229, 232 (1966)(recommending Congressional adoption of the UCC as amended in 1962 should the states not adopt the amendments by 1968).
173. 15 U.S.C. §§ 1601-1691(f) (1988).
174. See OKLA. STAT. ANN. tit. 14A §§ 1-101 et. seq. (1996); UNIFORM CONSUMER CREDIT CODE 7A U.L.A. 1 (1974), UNIFORM CONSUMER CREDIT CODE 7A U.L.A. 1 (1974).
175. See OKLA. STAT. ANN. tit. 14A §§ 1-101 et. seq. (1996); UNIFORM CONSUMER CREDIT CODE 7A U.L.A. 1 (1974), UNIFORM CONSUMER CREDIT CODE 7A U.L.A. 1 (1974).
176. Although it is difficult effectively to categorize the acts promulgated by the Conference, those targeted at protecting consumers are very rare. Of those Conference promulgations compiled by Ribstein & Kobayashi in 1996, only the UCCC has primarily a consumer protection theme. See Ribstein & Kobayashi, supra note 6, at 188-93. Another author has suggested that the Conference's inactivity in the area of consumer protection arises from the absence of consumer representation among the organization's interest groups. See Patchel, supra note 72, at 126. This paper develops the lack-of-consumer-representation issue more fully. See infra notes 151-72 and accompanying text.
177. Although it is difficult effectively to categorize the acts promulgated by the Conference, those targeted at protecting consumers are very rare. Of those Conference promulgations compiled by Ribstein & Kobayashi in 1996, only the UCCC has primarily a consumer protection theme. See Ribstein & Kobayashi, supra note 6, at 188-93. Another author has suggested that the Conference's inactivity in the area of consumer protection arises from the absence of consumer representation among the organization's interest groups. See Patchel, supra note 72, at 126. This paper develops the lack-of-consumer-representation issue more fully. See infra notes 151-72 and accompanying text.
178. See Patchel, infra note 71.
179. Some states may have determined that the impetus for federal intervention with the FCCPA was so strong that state action was fruitless. However, Fred Miller, currently the Executive Director of the Conference, and co-drafter of the commentary preceding the state of Oklahoma's version of the UCCC, suggests that Congressional willingness to defer to state administration of consumer protection provisions insofar as they complied with federal laws, might be sufficient incentive for states to adopt the UCCC. See OKLA. STAT. ANN. tit. 14A, Oklahoma Comment, preceding UCCC § 1-101 at 5-7 (West 1996).
180. At the time of Congressional passage of the FCCPA, only seven states had adopted the UCCC. See OKLA. STAT. ANN. tit. 14A, Oklahoma Comment, preceding UCCC § 1-101 at 1 (1996). Another source states that only five states have adopted the UCCC. See UNIFORM CONSUMER CREDIT CODE, supra note 113.
181. At the time of Congressional passage of the FCCPA, only seven states had adopted the UCCC. See OKLA. STAT. ANN. tit. 14A, Oklahoma Comment, preceding UCCC § 1-101 at 1 (1996). Another source states that only five states have adopted the UCCC. See UNIFORM CONSUMER CREDIT CODE, supra note 113.
182. The forces leading to Congressional adoption of the FCCPA were likely more complicated than this passage suggests, and the evidence of cause and effect - the states' failure to adopt the UCCC and Congress' passage of the FCCPA - simply does not exist. The state-federal dynamic, however, does illustrate the potential relationship between the absence of state action and federal preemption. For the regulatory environment that preceded Congress' passage of the FCCPA, see 1968 U.S.C.C.A.N. 1962, 1964-2025 (reprinting H.R.Rep. No. 90-1040 (1967)).
183. See ARMSTRONG, supra note 16, at 23-24 (claiming that "marriage proved to be an area in which local customs and beliefs were so deeply ingrained as to make uniformity difficult if not impossible").
184. See Michael E. Solimine, Competitive Federalism and Interstate Recognition of Marriage, 32 CREIGHTON L. REV. 83, 85 (1998)(attributing the absence of federal action in this area to, among other things, historical inertia).
185. Only nine states adopted this act in whole or in part. See UNIFORM MARRIAGE & DIVORCE ACT 9A U.L.A. 1 (1988); Stein, supra note 48, at 93-94 (stating that only seven states adopted the act).
186. Only nine states adopted this act in whole or in part. See UNIFORM MARRIAGE & DIVORCE ACT 9A U.L.A. 1 (1988); Stein, supra note 48, at 93-94 (stating that only seven states adopted the act).
187. See Stein, supra note 48, at 93-94 (noting that virtually all states had embraced no-fault divorce provisions notwithstanding their unwillingness to adopt the Conference's act).
188. While Congress' conception of interstate commerce includes many realms with only modest connections to real commerce, states continue to dominate this field, to the exclusion of Congress. See Solimine, supra note 119, at 84-85.
189. Magnuson-Moss Warranty - Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et. seq. (1988).
190. The states adopted the UCC, which contained several warranty provisions. See UCC §§ 2-312 through 2-318 (including the implied warranty of title, express warranty, implied warranty of merchantability, implied warranty of fitness for a particular purpose, warranty disclaimer, warranty conflict and warranty privity provisions, respectively).
191. Magnuson-Moss governs product sellers who directed their warranties at consumers. It requires these sellers to label their warranties as "full" or "limited," creates minimum standards for all written warranties aimed at consumers, and applies disclosure rules to product service warranties. See 15 U.S.C. §§ 2-302 through 2-308 (1988).
192. While one cannot link Congress' incentive for adopting the Magnuson-Moss Act to Conference or state inactivity in the area, it is unlikely that Congress would have adopted this law if the Conference had proposed and the states had adopted a similar uniform law.
193. See infra notes 151-72 and accompanying text.
194. See Brudney, supra note 16, at 799 (identifying the Conference requirements for labeling a draft as uniform or model).
195. See id. See also infra notes 132-38 and accompanying text.
196. In other words, means uniformity is desirable. See supra notes 36-40 and accompanying text.
197. See Armstrong, supra note 63, at 188 (suggesting that uniform acts are identically written and should be identically interpreted); Brudney, supra note 16, at 799.
198. See Armstrong, supra note 63, at 188 (suggesting that uniform acts are identically written and should be identically interpreted); Brudney, supra note 16, at 799.
199. Brudney, supra note 16, at 799.
200. Armstrong argues that the Conference relies on practicability rather than potential for enactment in proposing uniform acts. The key question involving practicability is whether a uniform act sacrifices neither the states' "fundamental principles" nor their "social and economic differences." These practicability standards would seem less a restraint on Conference adoption of uniform acts than a potential-for-enactment standard. This might explain both the large number of proposed uniform acts and why so few have been adopted by the states. See Armstrong, supra note 62, at 187. However, others suggest that potential for enactment plays a dominant role in Conference decisions to promulgate uniform acts. See Brudney, supra note 16, at 799 (stating that the Conference will promulgate a uniform act only if "there is substantial reason to anticipate enactment in a large number of jurisdictions").
201. Armstrong argues that the Conference relies on practicability rather than potential for enactment in proposing uniform acts. The key question involving practicability is whether a uniform act sacrifices neither the states' "fundamental principles" nor their "social and economic differences." These practicability standards would seem less a restraint on Conference adoption of uniform acts than a potential-for-enactment standard. This might explain both the large number of proposed uniform acts and why so few have been adopted by the states. See Armstrong, supra note 62, at 187. However, others suggest that potential for enactment plays a dominant role in Conference decisions to promulgate uniform acts. See Brudney, supra note 16, at 799 (stating that the Conference will promulgate a uniform act only if "there is substantial reason to anticipate enactment in a large number of jurisdictions").
202. By inference, a model act requires neither of the two prerequisites of a uniform act. Armstrong states that such acts "are intended only as models upon which each state may base its own individual legislation to the extent it deems desirable"). Armstrong, supra note 62, at 188.
203. This statement appears in the draft of the Model Punitive Damages Act. See 〈http://www.law.upenn.edu/bll/ulc/mpda/finaldft.htm〉.
204. Ribstein & Kobayashi identified 103 uniform and 25 model acts as of September 30, 1993. Counting in this study poses problems for two reasons. First, the study included only "active" uniform and model acts. The Conference has removed many of its acts from further consideration. Second, it counted most of the articles of the UCC separately. This is, nonetheless, a useful approximation. See Ribstein & Kobayashi, supra note 6, at 188-93. See also Appendix.
205. Ribstein & Kobayashi identified 103 uniform and 25 model acts as of September 30, 1993. Counting in this study poses problems for two reasons. First, the study included only "active" uniform and model acts. The Conference has removed many of its acts from further consideration. Second, it counted most of the articles of the UCC separately. This is, nonetheless, a useful approximation. See Ribstein & Kobayashi, supra note 6, at 188-93. See also Appendix.
206. National Conference of Commissioners on Uniform State Laws, 1999 Annual Meeting Program, Denver, Colorado, July 23-30, 1999 (on file with author).
207. Among the criticisms waged against the Uniform Computer Information Transactions Act is its willingness to embrace most of the software industry's ideas about cyber-contracting (e.g. digital licensing agreements). See, e.g., Hiawatha Bray, KO This Statute, BOSTON GLOBE, Aug. 19, 1999, at D1 (stating that UCITA "takes some of the worst aspects of the software business and etches them permanently into the law"); Editorial, A Lopsided Software Plan, ROCKY MOUNTAIN NEWS, Aug. 9, 1999, at 32A (identifying libraries, universities, the motion picture industry and media companies as UCITA opponents); John H. Minan, Consumers may lose to software industry, SAN DIEGO UNION-TRIBUNE, July 16, 1999, at B-9 (claiming that UCITA, among other things, does not adequately protect consumer rights).
208. Among the criticisms waged against the Uniform Computer Information Transactions Act is its willingness to embrace most of the software industry's ideas about cyber-contracting (e.g. digital licensing agreements). See, e.g., Hiawatha Bray, KO This Statute, BOSTON GLOBE, Aug. 19, 1999, at D1 (stating that UCITA "takes some of the worst aspects of the software business and etches them permanently into the law"); Editorial, A Lopsided Software Plan, ROCKY MOUNTAIN NEWS, Aug. 9, 1999, at 32A (identifying libraries, universities, the motion picture industry and media companies as UCITA opponents); John H. Minan, Consumers may lose to software industry, SAN DIEGO UNION-TRIBUNE, July 16, 1999, at B-9 (claiming that UCITA, among other things, does not adequately protect consumer rights).
209. Among the criticisms waged against the Uniform Computer Information Transactions Act is its willingness to embrace most of the software industry's ideas about cyber-contracting (e.g. digital licensing agreements). See, e.g., Hiawatha Bray, KO This Statute, BOSTON GLOBE, Aug. 19, 1999, at D1 (stating that UCITA "takes some of the worst aspects of the software business and etches them permanently into the law"); Editorial, A Lopsided Software Plan, ROCKY MOUNTAIN NEWS, Aug. 9, 1999, at 32A (identifying libraries, universities, the motion picture industry and media companies as UCITA opponents); John H. Minan, Consumers may lose to software industry, SAN DIEGO UNION-TRIBUNE, July 16, 1999, at B-9 (claiming that UCITA, among other things, does not adequately protect consumer rights).
210. A full text of the draft of UCITA that was considered and adopted at the Conference's annual meeting appears at 〈http://www.law.upenn.edu/bll/ulc/fnact99/1990s/ucita. htm〉. The Conference initial foray into this area was with proposed Article 2B of the UCC.
211. 〈http://www.law.upenn.edu/bll/ulc/ucita.citaam99.htm〉.
212. Id.
213. Bray, for example, cites the Federal Trade Commission as one of the leading opponents of UCITA. See Bray, supra note 137.
214. The final draft of the act may be found at 〈http://www.law.upenn.edu/bll/ulc/ulc/mpda/finaldft.htm〉. See also MODEL PUNITIVE DAMAGES ACT, 14 U.L.A. 52 (1999 Cum. Supp.).
215. Section 5 of the MPDA states, in part: (a) The trier of fact may award punitive damages against a defendant if: (1) the defendant has been found liable for a legally recognized injury which supports an award of punitive damages under the law of this State; (2) the plaintiff has established by clear and convincing evidence that the defendant maliciously intended to cause the injury or consciously and flagrantly disregarded the rights or interests of others in causing the injury; and (3) an award is necessary to punish the defendant for the conduct or to deter the defendant from similar conduct in like circumstances. (b) If another statute of this State establishes criteria for determining liability for an award of punitive damages, subsection (a) does not apply to an action brought under that statute. Id. at § 5.
216. (a) If a defendant is found liable for punitive damages, a fair and reasonable amount of damages may be awarded for the purposes stated in Section 5(a)(3). The court shall instruct the jury in determining what constitutes a fair and reasonable amount of punitive damages to consider any evidence that has been admitted regarding the following factors: (1) the nature of defendant's wrongful conduct and its effect on the claimant and others; (2) the amount of compensatory damages; (3) any fines, penalties, damages, or restitution paid or to be paid by the defendant arising from the wrongful conduct; (4) the defendant's present and future financial condition and the effect of an award on each condition; (5) any profit or gain, obtained by the defendant through the wrongful conduct, in excess of that likely to be divested by this and any other actions against the defendant for compensatory damages or restitution; (6) any adverse effect of the award on innocent persons; (7) any remedial measures taken or not taken by the defendant since the wrongful conduct; (8) compliance or noncompliance with any applicable standard promulgated by governmental or other generally recognized agency or organization whose function it is to establish standards; and (9) any other aggravating or mitigating factors relevant to the amount of the award. Id. at § 7.
217. Id. at §§ 8-9.
218. Much of the legal uncertainty surrounding punitive damages arises from several U.S. Supreme Court cases dealing with the constitutionality of state punitive damage laws under the due process clause. See Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1 (1991) (reviewing an Alabama case awarding punitive damages and upholding the award on due process grounds); TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993)(refusing to hold that there was a violation of the Due Process Clause even though the punitive award was 526 times greater than the compensatory award and 20 times higher than any award ever upheld in a West Virginia tort action); BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)(holding as excessive in violation of the Due Process provision an Alabama punitive damage award of $2,000,000 based on a case in which the seller did not reveal to the purchaser of a car that the new car had been repaired prior to sale).
219. See, e.g., David Baldus et al., Improving Judicial Oversight of Jury Damages Assessments: A Proposal for the Comparative Additur/Remittitur Review of Awards for Nonpecuniary Harms and Punitive Damages, 80 IOWA L. REV. 1109, 1115-16 (1995)(suggesting judicial discretion to review and alter punitive damage awards); Steven R. Salbu, Developing Rational Punitive Damages Policies: Beyond the Constitution, 49 FLA. L. REV. 247 (1997)(analyzing the effect of punitive damage awards based on the goals of retribution and deterrence).
220. See, e.g., David Baldus et al., Improving Judicial Oversight of Jury Damages Assessments: A Proposal for the Comparative Additur/Remittitur Review of Awards for Nonpecuniary Harms and Punitive Damages, 80 IOWA L. REV. 1109, 1115-16 (1995)(suggesting judicial discretion to review and alter punitive damage awards); Steven R. Salbu, Developing Rational Punitive Damages Policies: Beyond the Constitution, 49 FLA. L. REV. 247 (1997)(analyzing the effect of punitive damage awards based on the goals of retribution and deterrence).
221. A federal law limiting the recovery of punitive damages in product liability cases is an example. Compare Michael L. Rustad, Nationalizing Tort Law: The Republican Attack on Women, Blue Collar Workers and Consumers, 48 RUTGERS L. REV. 673 (1996) (challenging the passage of a federal product liability act that included a punitive damages cap) with Schwartz & Behrens, supra note 29 (favoring the same act).
222. A federal law limiting the recovery of punitive damages in product liability cases is an example. Compare Michael L. Rustad, Nationalizing Tort Law: The Republican Attack on Women, Blue Collar Workers and Consumers, 48 RUTGERS L. REV. 673 (1996) (challenging the passage of a federal product liability act that included a punitive damages cap) with Schwartz & Behrens, supra note 29 (favoring the same act).
223. For a compilation of these diverse state laws as of 1993, see BMW v. Gore, 517 U.S. 559, 614-19 (Ginsburg dissenting)(1996)(compilation as of 1996); Sandra N. Hurd & Frances E. Zollers, State Punitive Damages Statutes: A Proposed Alternative, 20 J. LEGIS. 191, 205-12 (1994)(as of 1993).
224. This paper is intended to demonstrate that Conference activities can serve as useful signals for Congress in its decisions about whether to consider preempting an area of private law. It is certainly not intended to demonstrate any causal link between Conference activities and preemption decisions.
225. UNIF. CONSUMER CREDIT CODE, 7A U.L.A. 1 (1974).
226. UNIF. CONSUMER SALES PRACTICES ACT, 7A U.L.A. 206 (1970). The UCSPA established protective standards for suppliers in consumer sales and lease transactions, prohibited deceptive sales practices and empowered a state-level administrator (such as the Attorney General) to enforce its rules. Only three states - Kansas, Ohio and Utah - adopted the act. 154 An exception is the unconscionability provision in the Uniform Commercial Code. See U.C.C. § 2-302. Of the over 300 acts promulgated by the Conference, only the UCCC and UCSPA address consumer protection in a somewhat comprehensive manner. See supra note 16 and Appendix.
227. Fred H. Miller, U.C.C. Articles 3, 4 and 4A: A Study in Process and Scope, 42 ALA. L. REV. 405 (1991).
228. Id. at 413.
229. Id. at 414.
230. Id. at 413.
231. Id. at 415.
232. Patchel, supra note 72, at 124.
233. See supra note 139.
234. See supra notes 140-42 and accompanying text.
235. Congress' most notable effort to govern the internet was the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 223(a) to (h)(Supp. 1997). The U.S. Supreme Court held the CDA unconstitutional in violation of the free speech provision of the 1st Amendment. See Reno v. A.C.L.U., 521 U.S. 844 (1997).
236. See White, supra note 66, at 2096.
237. Ribstein and Kobayashi attribute this tendency of the Conference to over-promulgate to the maximization goals of commissioners. First, their desire to "maximize the number of adoption of each law" leads them to promulgate acts "even in situations in which there is little public interest reason for uniformity." Ribstein & Kobayashi, supra note 6, at 145. The authors also attribute this tendency to the willingness of the commissioners to yield to the desires of interest groups, notwithstanding the lack of general interest in or the desirability of a proposed act. Id. at 153-54.
238. White, supra note 66, at 2103.
239. Brudney, supra note 16, at 7.
240. See supra notes 147-50 and accompanying text.
241. See supra notes 151-72 and accompanying text. 183 Both the FCCPA and Magnuson-Moss Acts require those with information and the accompanying contracting power to provide that information to a consumer borrower or purchaser, thus reducing the potential for market failure that would otherwise arise because of information asymmetries. See supra notes 112-18 and 123-26 and accompanying text. See also ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 235-36 (noting the potential for market failure arising from information asymmetries); Razook, supra note 80, at 174-81 (noting the information leveling effects of these two laws and the accompanying avoidance-of-market-failure benefits).
242. See supra notes 151-72 and accompanying text. 183 Both the FCCPA and Magnuson-Moss Acts require those with information and the accompanying contracting power to provide that information to a consumer borrower or purchaser, thus reducing the potential for market failure that would otherwise arise because of information asymmetries. See supra notes 112-18 and 123-26 and accompanying text. See also ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 235-36 (noting the potential for market failure arising from information asymmetries); Razook, supra note 80, at 174-81 (noting the information leveling effects of these two laws and the accompanying avoidance-of-market-failure benefits).
243. See COOTER & ULEN, supra note 183.
244. This is another example of the social costs associated with the states' decision to regulate or not to regulate. See supra notes 18-30 and accompanying text.
245. See Razook, supra note 80, at 175-78 (arguing that removing information and/or power asymmetries is the contract enhancing common thread among the most significant federal incursions into historically state-dominated domains).
246. Freedom of contract presupposes symmetrical or nearly symmetrical information between the parties. See supra note 183.