How do states influence other states' statutes?

October 24, 2018 1:08 PM

Hi MeFites, I recently started a paralegal program and the introductory class has me thinking about some things I would like to know more about. If you can provide any information yourself OR refer me to a resource that would help, I would be grateful.

I'm originally from Tennessee but have lived in Reno for the last decade. I had never specifically thought about the idea that liberal trends tends to move across the U.S. from West to East -- very broadly speaking. One law librarian who helped me recently made an offhand comment about California law influencing Nevada law. So I am curious about two things: 1: why does California law influence Nevada law? Is it just related to geographical vicinity or is there more to it? and 2: I'm curious about how law develops and moves across the U.S., perhaps sort of like a contagion, for lack of a better comparison? I've done a lot of googling and looking for books but I just keep coming up with books on U.S. historical founding documents like the Constitution. Thank you in advance.

posted by KleenexMakesaVeryGoodHat to Law & Government (13 answers total)

Best answer: I work in sales and use tax, and you see a lot of this. When researching how various states handle Buy One, Get One (Half off/Free/whatever), I saw that states didn't just influence each other, but the a handful of regulations were actually using the same example, word for word.

I don't think there are any firm rules about this. But budgets and industries certainly play a role.

A progressive state is more likely to have a large and professional legislature. There's a paper on this effect at the Federal level, that as we passed more legislation we also moved towards career politicians and larger staff to support a more complex bureaucratic government. That sort of influence will lead some states to be First Movers on certain issues, while slower and more conservative states will piggy back on the work, and enact similar legislation when they are convinced of it's validity.

Of course, funding issues can sometimes work the opposite way: Texas is funded primarily through sales taxes, and they have an underpaid legislature that is slow to pass new revenue sources. In response they've been very flexible on expanding the scope of taxable services and funding aggressive auditors. South Dakota was a natural choice to challenge Quill, because their relatively rural population means they were hit harder by e-commerce.

Sorry this is a lot of anecdotal evidence. I'd be interested if anyone digs out anything more academic.
posted by politikitty at 1:48 PM on October 24, 2018 [1 favorite]

Best answer: There are various organizations that aim to influence state laws, including the nonpartisan National Conference of State Legislatures (ALEC), and the American Legislative Exchange Council on the right and the State Innovation Exchange (SiX) on the left.
posted by Mr.Know-it-some at 1:58 PM on October 24, 2018 [1 favorite]

Best answer: The thing to search for is "policy diffusion," about which there are a bajillion articles. Many/most/almost all of them will likely be paywalled.

Many of them will get technical quickly. Walker's 1969 article is reasonably accessible, and Shipan and Volden's recent-ish take is maybe not so accessible but has some good description of competing ideas.
posted by GCU Sweet and Full of Grace at 2:30 PM on October 24, 2018

Best answer: You will also find a good amount of information on "uniform acts." The classic is the Uniform Commercial Code, but there are scores of others. Some states when adopting them don't necessarily accept all provisions, so the uniform acts sometimes aren't very.
posted by yclipse at 2:36 PM on October 24, 2018 [1 favorite]

Best answer: Another thing to keep in mind is that California is huge. It has the 5th largest economy in the world. In commercial regulations in particular, if California requires something, other states often follow suit, because if they passed a conflicting law, whatever the thing is is likely to just not be sold in that state. An example is catalytic converters -- in the 1970s, California started requiring them on new cars. If other states had banned them (especially small states), it's likely that automakers would have just not sold cars in those states, because California's market is large enough on its own.
posted by OrangeDisk at 2:49 PM on October 24, 2018 [5 favorites]

Best answer: My mom works as a graphic designer for a company which manufactures a wide array of chemical products. They are based in North Carolina but sell throughout the US and Canada.

She told me that over the past year, they've had to spend a huge amount of time redesigning a bunch of the chemical products' packaging, as well as their catalogue, because 1. California has introduced stricter labeling requirements for various chemicals and 2. Canada requires that all text on product labels be in both English and French.

So, in order to make a single version of each product which can be legally sold throughout their entire market region, they have to include the California-specific warning in both English and French.

Obviously this doesn't make either of those things a legal requirement in North Carolina - yet - but this is a major vector by which concepts which later become laws spread.
posted by showbiz_liz at 3:14 PM on October 24, 2018

Response by poster: I will just add that I work in academe, so I may have more access to more material than the non-academic.
posted by KleenexMakesaVeryGoodHat at 3:40 PM on October 24, 2018

Best answer: The Uniform Law Commission is another organization that drafts nonpartisan "best practices" model legislation that their member then encourage each individual state to take on. So not quite the diffusion model you asked about but another way state laws end up resembling each other.
posted by metahawk at 4:05 PM on October 24, 2018

Best answer: When it comes to progressive laws, some state has to be the first to pass the concept through their legislative process. Next comes implementation. If all goes well enough, other states benefit from the first state working through the process. Sometimes the benefit is watching a law get evaluated as unconstitutional and conserving energy in a different direction.
posted by childofTethys at 4:15 PM on October 24, 2018 [1 favorite]

Response by poster: Thank you all very much. All of your answers were enlightening. Here is an excellent resource I found on the subject thanks to GCU Sweet and Full of Grace's suggestion to search for "policy diffusion".
posted by KleenexMakesaVeryGoodHat at 6:10 PM on October 24, 2018

Best answer: Honestly, the answers above and the academic research you’re looking at are so lovely and thoughtful, but it’s way more straightforward than that. Writing statutes is really fucking hard and really fucking boring. Genuinely. Try to write a statute about how dishes should be loaded into the dishwasher in your house. I bet you will even have a hard time defining “dish.” Surely you want “dish” to cover cutlery (but probably not silverware) and pots and pans (but probably not the cast iron). All of a sudden you have a 45-page statute with 9 levels of exceptions and sub-exceptions and you haven’t even gotten to the question of dishwashing detergent yet.

Let’s throw it back old school. Say you’re tasked with writing a statute before the internet. Well fuck, you’re going to have to go to the local law library, which probably only has the most recent codes for the states directly next to you. Let me paint a picture of law libraries for you. Imagine a normal library. Remove the children. Remove the beautiful architecture. Hell, remove the windows altogether. Add a shitton of lawyers. See the horrorscape? So if you’re in California and Nevada has a “good enough” statute, you photocopy it and go the fuck home.

The people who write laws are human. They are inclined to only fix things that are broken. If you know something works, you steal it. And you’re going to go with the first thing you find that works, and you’re probably going to think of the next state over first. So if a neighboring state has a law on the books, and it does what it’s supposed to, and no one’s shot anyone over it, it’s probably better just to crib that language instead of trying to think creatively and accidentally legalizing bestiality in your parking regulation statute or something.
posted by suncages at 6:32 PM on October 24, 2018 [4 favorites]

Best answer: nthing the idea that copy-and-paste is a trend that is larded throughout the law. Look at how commercial contracts will use the same language over and over again--because it worked before, so why risk changing it?

Legislative drafting is an art in itself. Even when past examples might be awkward, if they've been tested in court, and the interpretations of a particular phrase are known, they'll get used again in the hopes that those same phrases will be interpreted the same way in the new context. The same principle applies on a larger scale, to whole bills.

So even where there isn't a model code being lobbied for, states will imitate each other. And also re-emphasizing the fact that many states have part-time legislatures--state legislators who retain their day jobs, and only meet in session for a few months out of the year. They aren't going to have the same sort of resources and drafting infrastructure you'd have in DC, or even Sacramento or Albany. (a discussion for another time is how that lends itself to influence and capture.)
posted by pykrete jungle at 10:32 PM on October 24, 2018 [1 favorite]

Best answer: laws being hard to write doesnt explain nearly all of it though - its clearly the case that there is both a "thought leader" effect and a "major market share" effect going on that result in policy spreading from california outward.

As an example we just got an HR notice that employees of my NY-based nonprofit employer have capped vacation rollover, but the folks out of the California office can roll over any and all of their saved leave into next year. Why? because california law says those employees earned that time and it cant be taken back. Apparently the NYS legislature doesnt care (this isnt surprising) and unfortunately our HR team has determined it is worth their time and effort to bifurcate their systems sufficiently to account for the differences in rollover allowance.
posted by Exceptional_Hubris at 8:19 AM on October 25, 2018