Achieving Law Reform Sometimes Requires a Strong Defense

In 2019, a joint drafting committee authorized by the Uniform Law Commission and the American Law Institute began work on a sweeping set of amendments to the official text of the Uniform Commercial Code (UCC) that address issues arising from emerging technologies. The amendments were approved by the sponsoring organizations at their 2022 annual meetings, and efforts are already underway to gain uniform nationwide enactment by state legislatures. The most significant changes to the UCC consist of a new Article 12 dealing with digital assets and amendments to Article 9 that facilitate the leveraging of these assets. Also in 2019, Wyoming adopted legislation to accomplish much the same thing. Although well-intended, the manner in which the legislation was drafted created serious problems for the functioning of that state’s version of Article 9 and for lawyers planning financing transactions involving digital assets. Between 2019 and 2022, bills based on the Wyoming model were introduced in over 20 states. In response, the Uniform Law Commission launched an intense effort by a small team of its members to explain to these states the problems with the legislation and to encourage them to wait for the official amendments to be finalized. I was a member of the joint drafting committee and of the team that opposed Wyoming-like legislation. The Article is based on my first-hand observations and on documents maintained in my files