Model or uniform codes or statutes and other statutory proposals are addressed mainly to legislatures, with a view toward legislative enactment.
a. Nature of Model Codes. Unlike its Restatements, the Institute’s legislative recommendations are written with a view toward their formal legislative enactment. Nevertheless, in many respects the formulations in these projects do not differ from the Restatements.
Although soon after its creation the Institute began to draft model and uniform laws, it has avoided involving itself in “novel social legislation.” Codifications such as the Uniform Commercial Code, the Model Penal Code, and the Federal Securities Code have built upon, rationalized, and synthesized previous legislation in these areas rather than proposing legislation in fields where it had not previously existed. A more recent initiative, the Federal Judicial Code Revision Project, has proposed modest incremental improvements in the Judicial Code rather than a comprehensive revision. Although the Institute’s founders considered advocacy of “any change in the law pertaining to taxation” as inappropriate, the Institute’s subsequent extensive involvement in federal tax projects has also come to exemplify this incremental approach to legislation. A proposed Income Tax Statute influenced the 1954 Internal Revenue Code by way of clarification, and selective tax proposals developed subsequently have also mainly sought to clarify established and widely accepted tax policy.
The Institute traditionally does not lobby for enactment of its legislative projects, although participants in the process, including Reporters, may do so in their individual capacities. (The Institute’s partner in the drafting and revision of the Uniform Commercial Code, the Uniform Law Commission, assumes sole institutional responsibility for achieving enactment of the Code.) The persuasiveness of the Institute’s recommendations to lawmakers depends upon the objectivity and thoroughness of its procedures and the demonstrable quality of its work product. Commentary and Reporter’s Notes in legislative projects should therefore be as fully developed and informative as those found in the Restatements and should include thorough consideration of the policy choices reflected in the proposed statute. Because, however, some courts refuse to consider supplemental material of this nature in interpreting statutory language, Reporters for the Institute’s legislative projects should take care that everything intended to be covered by a proposed statute is clearly expressed in the black letter. See II.B.3.a.