When winning isn't everything

Clearly, the ABA folks had done their homework, for which we can all be grateful. By the time I got to Seattle, the writing was on the wall for UCITA. NCCUSL withdrew not because the ABA couldn’t come to a consensus — after all, the lack of consensus has never stopped NCCUSL from pushing UCITA before — but because everyone knew UCITA was going to lose and lose big if put to a vote. In promising not to bring UCITA back to the ABA, NCCUSL’s Burnett essentially conceded the point.

What does UCITA’s failure with the ABA mean? In theory, at the very least it ought to mean that UCITA will lose the “Uniform” in its name, because the ABA is supposed to approve uniform acts. In fact, the ABA should have been asked to approve it four years ago, before NCCUSL started trying to get it enacted in the states. Now that day of reckoning has finally come, and the possibility of the ABA approving it in the future has been ruled out, the notion that UCITA could be adopted uniformly by all the states is a clear impossibility.

If not impossible, it would also certainly now seem highly improbable that UCITA will be adopted in any more states. The ABA’s prestige among lawmakers is such that it will be very difficult for proponents to explain away its refusal to endorse the law. Of course, as it is, no state has enacted UCITA since Virginia and Maryland rushed to judgment four years ago, so it was already a hard sell.

Is it possible that NCCUSL will finally recognize the time has come to drop UCITA? I can tell you there are many NCCUSL commissioners who hope so, because they are tired of having their conference embarrassed by this thing. Won’t NCCUSL’s leadership finally have to recognize that all these entities that know at least as much about the law as they do — not to mention all the technology professional societies that know a lot more about software and e-commerce than they do — are right, and that NCCUSL got it wrong?

Don’t bet on it. Burnett spoke in a very conciliatory manner to the ABA delegates, but his words carry an undertone that suggests NCCUSL will push on alone. Indeed, subsequent public comments by NCCUSL officials indicate that they plan to have UCITA introduced shortly in Arizona, Colorado, Delaware, the Virgin Islands, Wisconsin, and Washington. It has recently been introduced in Oklahoma. (Delaware residents in particular might want to ask their elected representatives in Dover if the state should jeopardize its role as forum of choice for business litigation with legislation trashed by the ABA business law section.)

That’s the reason I sound like a bad winner. Although we won an important battle, this stupid war looks as if it will go on.