This post was written by Nate Ela, of COWS
Monday's post described how, at the turn of the twentieth century, the model law emerged as a major new tool of governance in the United States. A hundred years later, model laws are ubiquitous, used to influence public policy across a wide range of areas. Today and Friday, we’ll highlight some recent legal and sociological scholarship on how model laws are being used, and what influences whether legislators decide to act upon them.
Model laws figure into the story Douglas NeJaime and Reva Siegel tell in a forthcoming Yale Law Journal article describing the rise of what they call “complicity-based conscience claims.” Made familiar by Burwell v. Hobby Lobby Stores, these claims arise when “Persons of faith … seek[] religious exemptions from laws concerning sex, reproduction, and marriage on the ground that the law makes the objector complicit in the assertedly sinful conduct of others.” Professors NeJaime and Siegel argue that rather than settle conflict, as is sometimes suggested, these types of claims often serve to extend it. Claiming a religious objection can offer a means of criticizing the norms of an entire community, and the actions of nonbelievers.
Pointing to the Healthcare Freedom of Conscience Act, a model anti-abortion law published in 2013 by Americans United for Life (AUL), NeJaime and Siegel argue that model laws provide a means of extending conflict via conscience-based coercion claims. The AUL model law, they note, “seeks to spread the logic of complicity-based conscience claims to more types of healthcare, to more actors, and to more acts.” And in at least some states, the strategy is getting traction: Mississippi’s recently-enacted healthcare refusal law is explicitly based on the AUL model.
Vanessa Zboreak, a professor at Wake Forest, recently published an article in the Wake Forest Journal of Law & Policy analyzing two ALEC model laws designed to preempt local land use laws that restrict large confined animal feeding operations, or CAFOs. As Zboreak points out, these models are in line with a wide range of recent bills aimed at preempting municipal lawmaking, though it would be incorrect to assume that an ALEC model lurks behind every attempt by a conservative state legislature to preempt local authority. One of the most interesting sections of the article parses the relatively innovative way in which ALEC’s “Act Granting the Authority to Rural Counties to Transition to Decentralized Land Use Regulation” law goes about preemption:
Because the grant of authority to decentralize is only available to counties, and not to municipalities, by choosing this approach counties would be able to preempt zoning or planning by municipalities located within the counties. Generally, in states where both cities and counties have land use planning authority, neither local government is subservient to the other…. Under this model bill, counties would be able to neuter the (often more progressive) voices of municipal residents and city councils. And to further encourage counties to avail themselves of this opportunity to consolidate their authority, states could quite easily tie county adoption of decentralization to other incentives, such as block grant monies, and thus ensure broad adoption of this approach.
Many recent media reports and scholarly articles have focused on how conservative activists have used model laws to advance their own favored causes. But progressives have used model legislation to promote their own causes. Friday’s post will highlight an article analyzing the success of a progressive effort to use model laws to prevent wrongful convictions.