The Futility of Unification and Harmonization in International ...

The converse also is true: we cannot blame political interference for any shortcomings in theinstruments produced by these groups. Rather, their flaws must indicate some inadequacies in thetechnocratic ideal. Of course, even the finest experts make mistakes, but the issue is not whethermeasures meant to unify international commercial law fall short of perfection. What we mustdetermine is whether the kind of technocratic lawmaking that these organizations promote hasstructural characteristics that lead to systematic problems with their products.C. A Positive Model of Private LegislaturesSeveral intellectual traditions have advanced critiques of scientific-technical expertise generallyand the use of technical ideals in lawmaking in particular. Some claim that what passes for technicalexpertise often represents only the current preferences of dominant elites and that technical skills17serve mostly to mask the naked and irrational power that lies behind most legislation. Sucharguments are fascinating but cut far too deeply for my present purposes. I do not consider my taskto extend to debating the merits of post-industrial capitalism or the place of legal theory in the postmodernfirmament. Rather, I wish to concentrate on one particular analysis of expert-grouplawmaking that recently has appeared in the legal literature.Scholars associated with the law-and-economics movement have studied the political economyof technical experts engaged in lawmaking. Their work suggests that these groups, no less than moreconventional legislatures, confront the influence of interest groups and face systematic pressure todraft laws that fail to improve on the status quo and may produce overall welfare losses.Technocratic lawmaking, they argue, still has its own politics and is not necessarily improved by itsfreedom from broader political constraints.18This work studies what Robert Scott and Alan Schwartz call private legislatures. It focuses ontwo U.S. institutions, the American Law Institute (ALI) and the National Conference ofCommissioners of Uniform State Laws (NCCUSL). Both bodies exist outside of normal politicalorgans, choose their own membership, and carry out their legislative drafting through a process thatbegins with a specially selected working group and concludes with consideration by the wholemembership of the working group’s drafts. Their professed goal is both to unify and to improve thesubstantive law of the several States by producing instruments that legislatures then will adoptwithout modification.Scott and Schwartz argue that these private legislatures have four significant characteristics thatshape the kinds of the legislation they produce: (1) the costs of logrolling are high; (2) members ofboth the task forces and broader legislative body acts as individuals and have no political power that1117See generally Mark Kelman, A GUIDE TO CRITICAL LEGAL STUDIES (1987); Thomas S. Kuhn, THE STRUCTURE OFSCIENTIFIC REVOLUTIONS (2d ed. 1970); Robert Mangabeira Unger, THE CRITICAL LEGAL STUDIES MOVEMENT (1986);Herbert Marcuse, ONE-DIMENSIONAL MAN—STUDIES IN THE IDEOLOGY OF ADVANCED INDUSTRIAL SOCIETY (1964).18Robert E. Scott, The Politics of Article 9, 80 VA. L. REV. 1783 (1994); Alan Schwartz & Robert E. Scott, ThePolitical Economy of Private Legislatures, 143 U. PA. L. REV. 595. For my previous discussion of these claims and theirapplication to international commercial law, see Paul B. Stephan, note 15 supra, at 688-90, 700-02.