Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship 1994 Why the U.C.C. Should Not Subordinate Itself to Federal Authority: Imperfect Uniformity, Improper Delegation and Revised Section 3-102(c) Norman I. Silber Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship Recommended Citation Norman I. Silber, Why the U.C.C. Should Not Subordinate Itself to Federal Authority: Imperfect Uniformity, Improper Delegation and Revised Section 3-102(c), 55 U. Pitt. L. Rev. 441 (1994) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/534 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. WHY THE U.C.C. SHOULD NOT SUBORDINATE ITSELF TO FEDERAL AUTHORITY: IMPERFECT UNIFORMITY, IMPROPER DELEGATION AND REVISED SECTION 3-102(c) Norman Silber* TABLE OF CONTENTS I. Introduction: The Conflict over Federalization of the C ode ............................................ 442 II. Background: The Preemption and Displacement of State L aws ............................................ 446 A. Distinguishing Preemption from Displacement .... 447 1. Preemption by Valid Regulatory Authority .. 447 2. Displacement of State Law by the Operation of State Law ............................ 450 B. The Diminished State Role in Banking Law ...... 451 III. Context: The Virtues of the Code's Imperfect Uniformity 454 IV. Other Models Within the Code: Embedded Relationships of the Code to Federal Law ........................ 460 A. Section 4-103: Containing Federal Administrative R ules ....................................... 461 B. Section 7-103: Conceding Federal Administrative Displacem ent ................................ 469 V. Puzzle: Evaluating the Meaning of Section 3-102(c) ... 471 A. Negotiable Instruments Law as State Law ....... 471 * Associate Professor, Hofstra Law School; Ph.D., Yale University, 1978; J.D., Columbia University, 1986. Many thanks for helpful comment are extended to Alex Aleinikoff, Thomas Baxter, Robin Charlow, Neil Cohen, Carl Felsenfeld, Linda Galler, Gail Hillebrand, Larry Kessler, Eric Lane, Malachy Mahon, Fred Miller, Deborah Prutzman, Alan Resnick, Wendy Rogovin, Ed Rubin, Ron Silverman, Jeff Sovern, Robert Williams and Julianna Zekan. Luke Bergstrom, David Jaffe and the staff of the University of Pittsburgh Law Review provided thoughtful assistance. A special debt of gratitude is due to Dwight L. Greene, a departed friend and colleague. Dwight kindled my curiosity about the problems explored here and helped me to evaluate their importance. Support from Hofstra made possible the valuable research assistance of Kevin Buggy, Alex- ander Fear, Andrew Gould, Scott Greissman, Eileen Lehmann, Jennifer Lyon, and Christopher Maurer. Cast all blame for shortcomings on me. UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 55:441 B. The Provision Itself ........................... 473 C. The Official Comments ........................ 475 VI. Mischief: Potentially Adverse Consequences of the Revi- sion ............................................. 480 A. Unwarranted Preemption: Freezing "Opt-In" Provi- sions of States ............................... 481 B. Unwarranted Displacement: Invalidating Nonuniform U.C.C. Amendments ............... 485 C. Unwarranted Extensions: Taking Analysis of Sec- tion 3-102 Outside Article 3 ................... 490 VII. Dimensions of State Law Unconstitutionality: Nondelega- tion D octrine ..................................... 491 A. Constitutional Restrictions on Delegation by State Lawm akers .................................. 493 B. Delegation as a Matter of Policy ............... 497 VIII. Conclusions: Toward Reinforcing the Structural Integrity of the Code ...................................... 498 I. INTRODUCTION: THE CONFLICT OVER FEDERALIZATION OF THE CODE A knot of controversy over the merits of federalizing nonregu- latory state banking laws by preempting or otherwise displacing them has gathered in an area where state authority to govern commercial law commonly has been taken for granted. The problems pervade re- cent revisions to the state uniform law provisions of Articles 3 and 4 of the Uniform Commercial Code ("U.C.C." or "Code"), 1 which are in- tended to codify the law of negotiable instruments, and the laws gov- erning bank collections and payment. The proposed adoption of these changes by the states has raised questions about the proper scope of uniform laws and the extent to which state laws should endorse defer- ence to federal regulatory authority. The implications of these revisions extend beyond abstract concerns about the coherence of the Code when I. The history of the process of revising Articles 3 and 4 has been recounted elsewhere. See, e.g., Fred H. Miller, U.C.C. Articles 3, 4 and 4A: A Study in Process and Scope, 42 ALA. L. REv. 405 (1991); Kathleen Patchel, Interest Group Politics, Federalism, and the Uniform Laws Pro- cess: Some Lessons from the Uniform Commercial Code, 78 MiNN. L. REv. 83 (1993). Article 4A, Funds Transfers, emerged from the drafting process as a separate product, concerned with nonconsumer electronic funds transfers. Developed apart from Articles 3 and 4, 4A has been approved widely without the difficulties in adoption that have troubled revised Articles 3 and 4-at least in part because of 4A's limited scope. See generally Carl Felsenfeld, But The Pro- posed Uniform [?] Commercial Code Was Adopted, 26 LoY. LA. L. REV. 597 (1993). 1994] THE U.C.C. AND FEDERAL AUTHORITY they are considered together with concerns about the demise of federal- ism in banking and the -adequate representation of interests in federal and state rule-making processes. Most law students in their first year of law school learn that after the reversal of Swift v. Tyson2 by Erie Railroad Co. v. Tompkinss in 1938, the substantive common law of commercial transactions became the province of state law rather than federal adjudication. The law of negotiable instruments has evolved since then through a series of uni- form law enactments into Article 3 of the Uniform Commercial Code. Until recently, the Code has reserved for the states the principal legis- lative and judicial role. Recent events indicate that a part of negotiable instruments law is being removed from state hands. In particular, in the area of check collections, Congress has deprived states of part of their authority. In 1987, Congress, through the Expedited Funds Availability Act ("EFAA"), delegated to the Federal Reserve Board of Governors "the responsibility to regulate ...any aspect of the payment system, in- cluding the receipt, payment, collection, or clearing of checks."' The Federal Reserve Board responded by issuing Regulation "CC," which preempted a considerable part of Article 4, dealing with bank collections. 5 The preemption of much of Article 4 by the EFAA and Regula- tion CC posed a new problem for the drafters, who were then in the midst of revising Article 4. Should the Revised Article seek to preserve the unpreempted portions of Article 4, or should it allow the Federal Reserve Board to preempt these areas as well? By 1990, the premature demise of much of Revised Article 4 provoked new proposals to coordi- nate Article 4 with Federal Reserve Board regulations, and also gener- ated a scholarly debate about the proper justification for ceding major areas of uniform law to federal regulatory agencies. 6 2. 41 U.S. (16 Pet.) 1 (1842). 3. 304 U.S. 64 (1938). 4. Expedited Funds Availability Act, 12 U.S.C.A. § 4008(c)(1)(A) (West 1989). 5. Fed. Reserve Reg. CC, Availability of Funds and Collection of Checks, 12 C.F.R. § 229 (1993); see Edward L. Rubin, Efficiency, Equity and the Proposed Revision of Articles 3 and 4, 42 ALA. L. REv. 551, 559 (1991). The portions preempted by Regulation CC primarily concerned the check return process. Id. 6. Complete preemption was not a proposal that the banking industry favored. See Miller, supra note 1, at 423-24; Edward L. Rubin, Uniformity, Regulation, and the Federalizationof State Law: Some Lessons From the Payment System, 49 Omo ST. L.J. 1251, 1257-61 (1989). As of this writing it is not clear how much of Article 4 ultimately may become a dead letter, nor whether the acts of Congress and the Federal Reserve Board amounted to the equivalent of man- 444 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 55:441 With respect to Revised Article 3, the debate over the Code revi- sions has yet to explore what appears to be one small step backward for federalism and a move forward for federalization-the insertion of a scope provision, section 3-102, which endorses the preemption and re- quires the displacement of state law.7 The language of that provision expands the opportunities for Federal rulemaking authority to defeat otherwise enforceable provisions of Article 3 and to defeat interpreta- tions of those uniform law provisions that have been adopted by state legislative bodies and settled by state courts. Originally titled "Commercial Paper" but now limited in scope to "Negotiable Instruments," 8 the new Article 3 incorporates a deferen- tial approach to the expansion of federal control. Section 3-102(c) states that "[riegulations of the Board of Governors of the Federal Re- serve