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States+Updates - States 3.2 Dartmouth 2K9 1 AT UNIFORMITY...

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Dartmouth 2K9 1 AT UNIFORMITY Means-based uniformity and ends-based uniformity are different – the latter can solve without the former Razook , professor of law at University of Oklahoma, 2k (Nim, “Uniform private laws, National Conference of Commissioners for Uniform State Laws, Signaling and Federal Preemption.” American Business Law Journal, 9/22/2000, http://www.accessmylibrary.com/coms2/summary_0286-28751607_ITM ) This question relates to an important descriptive characteristic of our federal polity: interstate (and regional) diversity. Avoiding the normative claim that such diversity is desirable, one must conclude that the states’ diverse treatment of both regulatory and fiscal issues is a key descriptive component of our federal system. 32 Often these diverse regulatory means are designed to achieve the same or similar regulatory ends. For example, the state of Louisiana requires only an ex parte hearing before allowing a creditor to repossess collateral from a debtor upon default.33 Oklahoma , its northwestern neighbor, has a replevin law that requires a two party hearing before repossession. Both laws , however, must produce a uniform end that meets the requirements of due process of law. 35 The question, therefore, attacks the often vague and generalized manner in which we use the term, “uniformity.” Typically we equate uniform regulations with identical or virtually identical regulations in which both the desired ends and the means of accomplishing the ends are the same. 36 What this conclusion fails to reveal is that diverse state and regional regulations can yield essentially the same results. Of course, reasonable minds may differ about the desired ends for a regulatory regime. However, the underlying fallacy of the means-uniformity advocates is evident. Their generalized perception of uniformity in which the term requires identical regulatory means to achieve desirable ends is descriptively incorrect. Notwithstanding the semantic ambiguity associated with the term, the balance of this article concentrates on means-uniformity. Although we might all agree that there are many regulatory means to a desirable policy end and may be prepared individually to offer examples, we do not typically consider these as examples of uniform regulation. Ends-based uniform standards stand as the counterexample to the common perception of regulatory uniformity: diverse rules intended to accomplish a desirable goal or policy. Advocates of federally preemptive legislation or of voluntary state adoption of uniform state laws have ostensibly concluded that uniform means are better than diverse means of achieving the desired uniformity. Last printed 0/0/0000 0:00:00 AM
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This note was uploaded on 12/20/2010 for the course K 101 taught by Professor Staff during the Fall '10 term at UMass Lowell.

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States+Updates - States 3.2 Dartmouth 2K9 1 AT UNIFORMITY...

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