9 June 1999. Link to updates.
20 May 1999. TTA.
To: Uniform Computer Transactions
Act Drafting Committee
From: David Bartlett, Amy Boss, David Rice
Date: May 7, 1999
The American Law Institute and the National Conference of Commissioners on Uniform State Laws have decided not to proceed with Article 2B as an addition to the Uniform Commercial Code. Instead, the Conference plans to bring forward the Uniform Computer Information Transaction Act as a proposed uniform state law. This change had the effect of ending our roles as ALI members of the Drafting Committee for Article 2B. Instead the Conference has asked that we serve as advisors to the UCITA Drafting Committee.
The three of us have been actively engaged members of the Drafting Committee for Article 2B since its inception, and were involved as well in the prior evolutionary stages of what became the UCC 2B draft. We believed, as did the American Law Institute in deciding to co-sponsor the project, that a focused effort to clarify contract law governing computer software and related transactions was desirable. We have enjoyed working with and learning from all of our NCCUSL colleagues while seeking to accomplish this. We greatly value the many new friends we have made through participation in this ambitious enterprise.
Those factors have made our individual decisions difficult. Nonetheless, the three of us have each concluded that we will not continue to participate as advisors. It is important to us, and we hope instructive to you, to share the reasons common to our decisions.
A few months ago, following the final Drafting Committee meeting, it became apparent that the Conference was determined to recommend the draft for final approval in July despite concerns from many sectors regarding its suitability for enactment. The three of us consequently recommended to the leadership of the Institute that the draft not be included in the UCC at this time. Our recommendation was based on a number of underlying concerns including matters of substance, process, and product.
In terms of product, the draft has, in attempting to address numerous concerns of affected constituencies, progressively moved away from articulating sufficient and generally applicable default rules toward establishing increasingly particular and detailed rules. In so doing, the draft sacrificed the flexibility necessary to accommodate continuing fast-paced changes in technology, distribution, and contracting. In terms of process, the guiding principle appeared to be the Conferences desire to expedite approval and commence enactment of the draft. This led to obviating rather than learning from strong concerns expressed by Conference and Institute discussions over the entire course of the project, ranging from scope and drafting to the interplay with intellectual property rules. Substantively, as you know, the three of us often disagree. Yet we believe that some rules, although they may assure important constituencies support for the draft, nonetheless jeopardize enactability because of the ultimate balance of interests achieved.
These are not new, or newly expressed, concerns. They are fundamental concerns and have been aired before in Conference and Institute discussions, by individual members, Drafting Committee members and observers, and Internet discussion list participants, as well as by software and other computer science enterprises and professional organizations, law professors, and editorial writers. The persistent din of these concerns has contributed significantly to our decision to decline the invitation to participate as advisors.
The limited time remaining before presentation of UCITA for final approval does not permit changes that might address such fundamental concerns. Thus, inasmuch as the draft is now on the final approval track, what contributions we could make to the draft have been made.
We therefore decline the Conferences invitation that we participate as advisors.