Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, March 23, 2022

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

Gregory Elinson and Robert H. Sitkoff recently published an article entitled, When a Statute Comes with a User Manual: Reconciling Textualism and Uniform Acts, Wills, Trusts, & Estates Law ejournal (2022). Estate planning

Provided below is the abstract to the Article: 

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 birth, adoption, marriage, divorce, and death—and structure trillions of dollars in daily commercial transactions.

Largely focusing on textualism, today’s dominant form of statutory interpretation, we focus on 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 ac-companied 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—a form of what textualists would otherwise dismiss as legislative history—when they interpret a statute originating as a Uniform Act.

More specifically, the Article explores what we call the “directives” and “signals” that state legislatures send when they enact a Uniform Act. As en-acted statutory text, the promote-uniformity clause directs courts to treat the official comments as persuasive authorities 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 authorities 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 understudied 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.

https://lawprofessors.typepad.com/trusts_estates_prof/2022/03/article-when-a-statute-comes-with-a-user-manual-reconciling-textualism-and-uniform-acts.html

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Comments

Gerry, thanks for posting the article. The title reminded me that statutory forms in uniform acts should come with a user's manual. For example, the Iowa Uniform Power of Attorney Act directs readers, clients, clinic law students, lawyers, and the public to read the law -- Chapter 633B -- such a deal -- to find out what powers they are giving their agents when they initial one or all of 12 general categories. Which is why most opt to sign "all preceding subjects." You gotta love the law. Here is what appears in the law and the bar form.
"1. POWER OF ATTORNEY This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent will be able to make decisions and act with respect to
your property (including but not limited to your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in the Iowa Uniform Power of Attorney Act, Iowa Code chapter 633B." Best, Len

Posted by: Len Sandler | Mar 24, 2022 7:03:52 AM

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