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5 - The Uniformity Norm in Commercial Law: A Comparative Analysis of Common Law and Code Methodologies

Published online by Cambridge University Press:  22 September 2009

Robert E. Scott
Affiliation:
I am thankful to Lisa Bernstein, Clay Gillette, John Jeffries, Kevin Kordana, Jody Kraus, Paul Mahoney, Alan Schwartz, Paul Stephan, Bill Stuntz, Steve Walt, and the participants in law and economics workshops at the University of Chicago, Columbia University, New York University, and the University of Michigan for their helpful comments on prior drafts.
Jody S. Kraus
Affiliation:
University of Virginia
Steven D. Walt
Affiliation:
University of Virginia
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Summary

Introduction

One of the central norms of the Uniform Commercial Code is “to make uniform the law among the various jurisdictions.” Nowhere in the Code, however, is the substance of the uniformity norm of commercial law explained or justified. Moreover, in the thirty years following the remarkable success of the codification enterprise in achieving formal uniformity – the widespread adoption of the Code in all American jurisdictions – there has been virtually no academic or judicial analysis of whether this grand experiment in the uniform codification of American commercial law has, in fact, produced the social benefits that are presumed to follow from uniformity. Instead, there is a broad consensus, uninformed by evidence or analysis, that formal uniformity has led as well to substantive uniformity, to the certainty, predictability and stability that are the bedrock desiderata of commercial law.

This uncritical acceptance of the notion that uniform codification best promotes the substantive goals of uniformity is puzzling. Large areas of commercial contract law and corporate law remain outside the Code and have evolved in a formally nonuniform fashion through the process of common law adjudication and statutory enactments in various states. In the case of corporate charters, a robust literature has focused on the substantive benefits inherent in jurisdictional diversity – stimulating a “race to the top” as states compete among themselves to capture the economic rents from incorporation.

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Publisher: Cambridge University Press
Print publication year: 2000

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  • The Uniformity Norm in Commercial Law: A Comparative Analysis of Common Law and Code Methodologies
    • By Robert E. Scott, I am thankful to Lisa Bernstein, Clay Gillette, John Jeffries, Kevin Kordana, Jody Kraus, Paul Mahoney, Alan Schwartz, Paul Stephan, Bill Stuntz, Steve Walt, and the participants in law and economics workshops at the University of Chicago, Columbia University, New York University, and the University of Michigan for their helpful comments on prior drafts.
  • Edited by Jody S. Kraus, University of Virginia, Steven D. Walt, University of Virginia
  • Book: The Jurisprudential Foundations of Corporate and Commercial Law
  • Online publication: 22 September 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511527449.006
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  • The Uniformity Norm in Commercial Law: A Comparative Analysis of Common Law and Code Methodologies
    • By Robert E. Scott, I am thankful to Lisa Bernstein, Clay Gillette, John Jeffries, Kevin Kordana, Jody Kraus, Paul Mahoney, Alan Schwartz, Paul Stephan, Bill Stuntz, Steve Walt, and the participants in law and economics workshops at the University of Chicago, Columbia University, New York University, and the University of Michigan for their helpful comments on prior drafts.
  • Edited by Jody S. Kraus, University of Virginia, Steven D. Walt, University of Virginia
  • Book: The Jurisprudential Foundations of Corporate and Commercial Law
  • Online publication: 22 September 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511527449.006
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • The Uniformity Norm in Commercial Law: A Comparative Analysis of Common Law and Code Methodologies
    • By Robert E. Scott, I am thankful to Lisa Bernstein, Clay Gillette, John Jeffries, Kevin Kordana, Jody Kraus, Paul Mahoney, Alan Schwartz, Paul Stephan, Bill Stuntz, Steve Walt, and the participants in law and economics workshops at the University of Chicago, Columbia University, New York University, and the University of Michigan for their helpful comments on prior drafts.
  • Edited by Jody S. Kraus, University of Virginia, Steven D. Walt, University of Virginia
  • Book: The Jurisprudential Foundations of Corporate and Commercial Law
  • Online publication: 22 September 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511527449.006
Available formats
×