Model Law
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Model Law

Model laws are laws drafted centrally to be disseminated and enacted in multiple independent legislatures. Such laws can be intended to be enacted verbatim, with minor modification or to serve more as guides for the legislatures.

Model laws are especially prevalent in the United States because the country consists of 50 partially self-governing states, each with its own legislature and set of laws. There, model laws are referred to as model acts or model bills. Many American special interest groups draft model acts which they lobby lawmakers to pass. In particular, the conservative American Legislative Exchange Council (ALEC) has successfully gotten hundreds of model acts passed since 2010. Uniform acts are model acts intended to be enacted exactly as written. They are drafted by the Uniform Law Commission (ULC), a state-run non-profit organization whose purpose is to draft laws in areas where uniformity is important. For example, to facilitate interstate trade.

The concept isn't endogenous to the United States; international organizations such as the United Nations Commission on International Trade Law, the International Red Cross and Red Crescent Movement, and the European Union have also written model laws to harmonize laws between different countries.

American critics of model laws have referred to them as "copycat laws", "fill-in-the-blanks laws", and "copy-paste laws." The concept caused some controversy in 2019 when a coalition of 30 investigative journalists published a series called "Copy, Paste, Legislate", investigating the corporate interests behind many model laws.

American drafters of model law

Harry H. Laughlin's Model Eugenical Sterilization Law

One early example of a model law was eugenicist Harry H. Laughlin's Model Eugenical Sterilization Law. In 1922, he published the book Eugenical Sterilization in the United States whose purpose was to persuade state legislatures into passing sterilization laws, which it also did.[1] In chapter XV of the book he included the bill Model Eugenical Sterilization Law. [2] Two years later, Laughlin's sterilization act was enacted almost unmodified by the Virginia Sterilization Act of 1924. The Supreme Court upheld the constitutionality of the law in Buck v. Bell in 1927,[3] paving the way for similar sterilization laws in other states.[1]

Uniform Law Commission

The non-profit Uniform Law Commission (ULC), formerly known as the National Conference of Commissioners on Uniform State Laws, was founded in 1892 to provide American jurisdictions with robust legislation.[4] ULC promotes enactment of uniform acts in areas of state law where uniformity is desirable and practical.[5] ULC produces both model and uniform acts. Since its inception it has produced over 250 uniform acts.[6]

ULC drafted the Model Tribal Secured Transactions Act in 2005 which served as a template for tribal legal infrastructure on reservations to provide consistency and greater accessibility in lending and credit transactions.[7]

American Bar Association

The American Bar Association is an association of American lawyers and law students which has published a large number of model acts. Its most successful model law is probably the Model Business Corporation Act published in 1950. As of 2020, the act is followed by 24 states.[8] Another influential act ABA has drafted is the 1979 Model Procurement Code for State and Local Governments which as of 2000 had been adopted in full by 16 states and in part by several more.[9] The act went through a major update in 2000.

Other model acts drafted by ABA include the Model Airspace Act in 1973,[10] and the Model Code for Public Infrastructure Procurement in 2007.[11]

American Law Institute

The American Law Institute (ALI) is most famous for its Restatements of the Law but has also produced model acts. A well-known example is the Model Penal Code published in 1962 seeking to harmonize state criminal law.

American Legislative Exchange Council

The American Legislative Exchange Council (ALEC) an American nonprofit organization--whose members include conservative state legislators and private sector representatives--is a prolific producer of model state-level laws for conservative causes.[12][13] ALEC has deep ties to the State Policy Network (SPN), an umbrella organization for a consortium of conservative and libertarian think tanks that focus on state-level policy,[14] which is one of ALEC's sponsors.[15]

One of ALEC's earliest model acts were the 1981 Animal and Ecological Terrorism Act to prohibit acts that would make agricultural business operations more difficult.[16] The act sought to impose harsh penalties, including a terrorism registry, on instances of direct action performed by organizations such as the Animal Liberation Front.[17]

ALEC's model acts concern many topics important to conservatives like Stand Your Ground, Voter ID, illegal immigration,[18]truth in sentencing, three strikes,[19]right to know,[20] and cutting taxes.[21] ALEC has drafted and distributed state-level legislation to limit[22] It has also opposed the creation or expansion of municipal broadband networks.[23][24][25]

ALEC has been very successful in getting its laws passed; according to Brendan Greeley, lawmakers introduce bills based on the organization's model acts about 1,000 times per year in state legislatures and about 200 of them become law.[26] In 2015, ALEC model bills were reflected in about 172 measures introduced in 42 states, according to the Center for Media and Democracy, publishers of the ALEC Exposed series.[27]

ALEC has also been criticized for being funded by big corporations and over alleged underhandedness. The Guardian has described it as a "dating agency for Republican state legislators and big corporations" to "frame rightwing legislative agendas".[28][29]

Notable model acts

Some notable model acts not drafted by the above mentioned organizations:

International model laws

An example of an international model law is the UNCITRAL Model Law on International Commercial Arbitration.

"Copy, Paste, Legislate"

In 2019, a team of 30 reporters from the Center for Public Integrity (CPI), USA TODAY, and The Arizona Republic published the result of a two-year-long investigation into model acts entitled "Copy, Paste, Legislate".[39] The investigation raised concerns over the role of ALEC and other corporate-sponsored organizations on the American legislative process.

The investigation used text analysis software called Legislative Influence Detector created by Joe Walsh, a former data scientist at the University of Chicago to spot similarities between model acts and enacted legislation. Its main finding was that during the period 2010 to 2018 lawmakers had introduced bills based on model acts at least 10,000 times. Another 10,000 bills were likely copied nut were more dissimilar. The investigation identified over 2,100 model acts but speculated that the real number is far higher since many organizations keep their model acts secret. In many states, the use of model bills was found to have supplanted the traditional way of writing legislation "from scratch".[39]

Mississippi was found to be the state with the highest number of bills introduced based on model acts, 744 - 200 more than the next highest state. 288 came from the non-partisan Council of State Governments and 255 from ALEC. But only 57 of them became law, according to the investigation.[40]

Open recall disclosure

The "Copy, Paste, Legislate" investigation uncovered a legal initiative by the car industry to enact laws that would require dealers to disclose if a bought used car were under open recall, something most states don't require. The car industry's initiative was in response to other legal initiatives that called for banning the sales of used cars under open recall entirely.[41]

The first bill produced by the initiative was introduced in 2014 by New Jersey Speaker, Paul D. Moriarty and called for "a fine for failing to disclose open recalls to customers."[41] It was based on model law that had been crafted by a lobbyist who headed the New Jersey Coalition of Automotive Retailers. The lobbyist said that their "model legislation" provided "suggested language" and was never intended to be a copy-and-paste exercise."[41][42] Similar model legislation was drafted by the Washington, D.C.-based Automotive Trade Association Executives (ATAE), representing over 100 "executives from regional auto dealer associations".[41] The bill allowed dealers to continue selling recalled cars as long as they disclosed open recalls.[41] The dealers worked with over 600 lobbyists in 43 states to assist in getting the legislation passed.[41] From 2014 through 2019, lawmakers in eleven states introduced similar bills into their state legislatures.[41]

"Right-to-try"

The libertarian Arizona-based Goldwater Institute, drafted the "right-to-try" law that was signed into law in Ohio in 2016 by then-Governor John Kasich. It allows patients with terminal illnesses to try drugs that the federal Food and Drug Administration has not approved. The law was passed on the federal level in 2018.[43]

Anti-BDS laws

The "Copy, Paste, Legislate" investigation also documented the Israel lobby's largely successful attempts to get statehouses to pass legislation to curb the Palestinian-led BDS movement. BDS calls for comprehensive boycotts of Israel until it stops its human rights violations against Palestinians. The legislation that the Israel lobby promotes requires state contractors to pledge not to boycott Israel and state pension funds to divest from entities that do.[44]

One of the first anti-BDS law was sponsored by Republican lawmaker Alan Clemmons who introduced it in 2015. He worked with the Israeli-American Coalition for Action's (AIC) Joe Sabag, his "buddy and wordsmith-in-chief", to prepare the bill.[44] Eugene Kontorovich, a George Mason University law professor, assisted in drafting the legislation. He also helped other states with their anti-BDS laws and frequently defends their constitutionality in the media.[44] By May 2019, 25 other states had adopted similar measures. Many of the bills shared exact wording.[44] The anti-BDS initiatives, undertaken by activist groups concerned about the rise of antisemitism, such as the Jewish Federations of North America (JFNA) and the Israeli-American Coalition for Action, have been largely successful in pushing the anti-boycott legislation through state legislatures, according to a two-year collaborative investigative journal report. A JFNA lobbyist wrote the "anti-boycott executive order and news release" for the governor of Louisiana.[44] A pro-Israel lobbyist closely helped edit the bill and guided the lawmaker who introduced and supported the anti-boycott legislation in Nevada.[44]

See also

References

  1. ^ a b Antonios, Nathalie (April 14, 2011). "Sterilization Act of 1924". The Embryo Project Encyclopedia. ISSN 1940-5030. Retrieved 2015.
  2. ^ Laughlin, Chapter XV Archived 2011-07-28 at the Wayback Machine
  3. ^ Buck v. Bell, 274 U.S. 200, 206, 47 S. Ct. 584, 584, 71 L. Ed. 1000 (1927)
  4. ^ "ULC Constitution & Bylaws". Uniform Law Commission. 8 Jan 2019. Archived from the original on 8 January 2019. Retrieved 2019.
  5. ^ "About Us". Uniform Law Commission. 8 Jan 2019. Archived from the original on 8 January 2019. Retrieved 2019.
  6. ^ "Uniform Laws and Model Acts".
  7. ^ "Piikani Money Campaign". The Federal Reserve Bank of Minneapolis. Retrieved .
  8. ^ L Bebchuk, 'The Case for Increasing Shareholder Power' (2004-5) 118 Harvard Law Review 833, 844
  9. ^ "2000 ABA Model Procurement Code" (PDF).
  10. ^ "MODEL AIRSPACE ACT". JSTOR 20781272. Cite journal requires |journal= (help)
  11. ^ "2007 Model Code for Public Infrastructure Procurement (PIP)" (PDF).
  12. ^ May, Clifford (1987-08-30). "Transportation Chief Attacks Congress on Safety". The New York Times.
  13. ^ Griffin, Marshall (January 14, 2014). "'Right-to-work' bill praised and blasted in House committee hearing". KBIA.
  14. ^ Fund, John (September 28, 2000). "Forget Washington". Wall Street Journal. Retrieved 2015.
  15. ^ Abowd, Paul. "Koch-funded charity passes money to free-market think tanks in states". NBC News. Center for Public Integrity. Retrieved 2015.
  16. ^ "ALEC in Colorado: Uncovering the Influence of the American Legislative Exchange Council (ALEC) in the Colorado Legislature" (PDF).
  17. ^ "Caging Animal Advocates Political Freedoms: The Unconstitutionality of the Animal and Ecological Terrorism Act". Animal Legal & Historical Center. January 1, 2005. Retrieved 2020.
  18. ^ Archibold, Randal C. (April 24, 2010). "U.S.'s Toughest Immigration Law Is Signed in Arizona". The New York Times. p. 1.
  19. ^ Beall, Pat (November 22, 2013). "Big business, legislators pushed for stiff sentences". The Palm Beach Post.
  20. ^ McIntire, Mike (April 21, 2012). "Conservative Nonprofit Acts as a Stealth Business Lobbyist". The New York Times. Retrieved 2012.
  21. ^ Rothschild, Scott (December 17, 2013). "Brownback says perception of ALEC influence is 'overblown'". Lawrence Journal-World.
  22. ^ Farivar, Cyrus (29 June 2012). "South Carolina passes bill against municipal broadband". Ars Technica. Retrieved 2019.
  23. ^ John, Eggerton. "NTIA's Strickling Touts Success of BTOP". Multichannel. Retrieved 2019.
  24. ^ "Fact check: Truth-testing Fort Collins broadband ads". Coloradoan. Retrieved 2019.
  25. ^ "Is municipal broadband more important than net neutrality?". Fortune. Retrieved 2019.
  26. ^ Greeley, Brendan (May 3, 2012). "ALEC's Secrets Revealed; Corporations Flee". Bloomberg Businessweek.
  27. ^ Fischer, Brendan; Peters, Zachary (March 8, 2016). "Cashing in on Kids: 172 ALEC Education Bills Push Privatization in 2015". Center for Media and Democracy (CMD) via PR Watch. Retrieved 2020.
  28. ^ Pilkington, Ed (November 20, 2013). "Obamacare faces new threat at state level from corporate interest group Alec". The Guardian.
  29. ^ Greenblatt, Alan (December 2011). "ALEC Enjoys A New Wave of Influence and Criticism". Governing.
  30. ^ "Model Notary Act". National Notary Association. Retrieved 2020.
  31. ^ "Civil Law Notary: An Office Whose Time Has Come?" (PDF).
  32. ^ "Understanding Independent Medical Review and Utilization Review Services" (PDF). NAIRO.
  33. ^ New Employee Orientation, New York State Soil and Water Conservation Committee, retrieved
  34. ^ Phelps, Jess R. (2006). "A Vision of the New Deal Unfulfilled? Soil and Water Conservation Districts and Land Use Regulation" (PDF). Drake Journal of Agricultural Law. 11: 353. SSRN 979108.
  35. ^ Ackerman, Spencer (2014-02-12). "Utah lawmaker floats bill to cut off NSA data centre's water supply". The Guardian. ISSN 0261-3077. Retrieved .
  36. ^ Vijayan, Jaikumar (2014-01-07), California lawmakers move to bar state help to NSA, Computer World, The Utah bill aims to prohibit state and local agencies from providing water to a giant new NSA data center near Salt Lake City.
  37. ^ NAA Archived 2007-11-10 at the Wayback Machine
  38. ^ NAA | NAA Drafts Sample Auction License Law and Encourages Adoption by State Legislatures Archived 2009-01-29 at the Wayback Machine
  39. ^ a b O'Dell, Rob. "How we uncovered 10,000 times lawmakers introduced copycat model bills -- and why it matters". Center for Public Integrity and The Arizona Republic. Retrieved 2020.
  40. ^ Bologna, Giacomo (April 4, 2019). "How copycat bills become your laws". Clarion Ledger. Mississippi. Retrieved 2020.
  41. ^ a b c d e f g Kaneya, Rui (April 4, 2019). "The multistate push to let dealers get away with selling you a defective car". Center for Public Integrity, USA TODAY and The Arizona Republic. Retrieved 2020.
  42. ^ LaForme, Ren (January 8, 2020). "This tool illuminates the hidden hands of special interest groups in legislation across the U.S." Poynter. Retrieved 2020.
  43. ^ Borchardt, Jackie (April 4, 2019). "Copycat bills: How Ohio compares". Cincinnati Enquirer. Cincinnati. Retrieved 2020.
  44. ^ a b c d e f Essley Whyte, Liz (1 May 2019). "One way to silence Israel boycotts? Get lawmakers to pass anti-BDS bills". USA Today and Center for Public Integrity (CPI). Copy, Paste, Legislate. Retrieved 2020.

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