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

65 Pages Posted: 10 Nov 2021 Last revised: 1 Jul 2022

See all articles by Gregory Elinson

Gregory Elinson

Northern Illinois University - College of Law

Robert H. Sitkoff

Harvard University - Harvard Law School; European Corporate Governance Institute (ECGI)

Date Written: June 30, 2022

Abstract

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

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

More specifically, this Article explores what we call the “directives” and “signals” that state legislatures send when they enact a Uniform Act. As enacted statutory text, the promote-uniformity clause directs courts to treat the official comments as persuasive authority on the statute’s meaning. Moreover, even if a legislature enacts only a portion of a Uniform Act, the legislature signals that courts should treat the comments as persuasive authority by virtue of the choice to incorporate language from a Uniform Act rather than some alternative text.

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

Keywords: legislation, statutory interpretation, uniform acts, uniform laws, uniform law commission, textualism, canons of construction, uniform act comment,

JEL Classification: K10, K20, K40

Suggested Citation

Elinson, Gregory and Sitkoff, Robert H., When a Statute Comes with a User Manual: Reconciling Textualism and Uniform Acts (June 30, 2022). 71 Emory Law Journal 1073 (2022), Harvard Public Law Working Paper No. 22-10, Available at SSRN: https://ssrn.com/abstract=3959183

Gregory Elinson

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

Robert H. Sitkoff (Contact Author)

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

HOME PAGE: http://https://hls.harvard.edu/faculty/directory/10813/Sitkoff

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

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