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Bar Journal - March 1, 2000

Researching NH's Version of Uniform and Model Laws1

By:
 
INTRODUCTION

Many of New Hampshire's laws are based on uniform or model laws. This article briefly discusses ways to research this topic for New Hampshire, provides some historical background, and discusses research specifically for our most noteworthy events in this area, the adoption of the New Hampshire's version of the Uniform Commercial Code2  and the revision of our criminal code which was based in large part on the Model Penal Code.

ADOPTION OF UNIFORM LAWS IN NEW HAMPSHIRE

In 1947 the New Hampshire Legislature passed 1947 N.H. Laws Chapter 100 (now codified as N.H. Rev. Stat. Ann. ch. 18 (1988)) which created a Commission to Study Uniform State Laws. This act required the commission to "promote uniformity in state laws on all subjects where uniformity is desirable and practicable, and to meet and act with other similar commissioners from other states for the above purpose, to be represented at each annual conference of the national commissioners, and to file with the secretary of state...a report of the progress of uniform legislation both within and without the state to the end that uniform legislation, where desirable and practical, be adopted in the state."3  That legislative effort to help bring New Hampshire's laws into uniformity with those of other states has been successful. Since 1947, the New Hampshire legislature has adopted many uniform laws on a wide variety of topics. The original text of each adopted uniform law (except for the UCC; see below) is found in the session law chapter for the year of passage, and the current version of each uniform law, integrated with all later changes, is found throughout the current New Hampshire Revised Statutes Annotated.

RESEARCH TECHNIQUES IN NEW HAMPSHIRE AND OTHER JURISDICTIONS

The general index to the New Hampshire Revised Statutes Annotated provides easy access to the uniform laws currently in effect in New Hampshire. There is a main heading of "Uniform Laws" with many subheadings listing individual laws, and each law is also listed separately under its individual title. These entries provide direct access to the text of New Hampshire's version of the uniform and model laws as adopted by the legislature. Even without using the index, it is clear which statutes are based on uniform laws, since the short title of each is the same as the title of the uniform law upon which it is based.

If a New Hampshire statute is based upon a uniform law, the research possibilities expand since, along with using the statutory text, case annotations and cross-references available in the annotated code, it is also relevant to see how other adopting jurisdictions have interpreted a particular section of that uniform law. This would be especially helpful if no New Hampshire court cases have been decided to interpret the section. Although there may be some slight differences in the text of the uniform law which any particular jurisdiction adopts, most of the statutory text should be the same in all adopting jurisdictions. Therefore, if New Hampshire courts have not interpreted a particular section of that New Hampshire statute, other states' interpretations are helpful if the statutory text being interpreted is identical to the corresponding New Hampshire section. Although out-of-state court interpretations are only persuasive authority, they provide useful guidance to the New Hampshire court.

The easiest way to research and compare New Hampshire's version of the law with that from other states is to use Uniform Laws Annotated, a multivolume WestGroup publication which provides the text of many (but not all) uniform and model laws. It provides the individual state variations in the text of the uniform act, and provides headnotes from interpreting cases from all adopting jurisdictions. A researcher can easily check to see which jurisdictions have adopted the same language as New Hampshire and then look to cases from those jurisdictions for interpretation of that language. Uniform Laws Annotated is also available in full text on WESTLAW (ULA). The print version of Uniform Laws Annotated has no general subject index (although specific volumes do) but a researcher could do a "terms and connectors" search on ULA on WESTLAW for general access to all of the language of the uniform laws and to the case annotations included with each law, or do a more specific search in just one of the uniform laws and interpretive cases by including that title of the uniform law as part of the search request. Adding "New Hampshire" as a search phrase would further narrow the search.

LEXIS has the full text of many of the uniform laws in its 2NDARY Library, in many different files (see the alphabetical list in the LEXIS-NEXIS Directory of Online Services or see the online menu choices for specific file names). Although it does not cover as many uniform laws as ULA, it covers many of the major ones and would provide another access point for these materials, especially when searched using "New Hampshire" as part of the request.

Based on a comparison of entries listed in the ULA and in the general index of the New Hampshire Revised Statutes Annotated, there is not a complete correlation between the uniform and model laws which New Hampshire has adopted. The Uniform Laws Annotated lists by title 41 uniform laws and one model law which New Hampshire has adopted.4  The 1999 General Index to the New Hampshire Revised Statutes Annotated lists 47 individual uniform laws and lists three model laws. There are entries and omissions of titles of uniform laws in each index. This discrepancy may be explained, in part but not completely, because the Uniform Laws Annotated does not cover all uniform and model laws which New Hampshire has adopted.

Archival microfiche collections are available of materials from the National Conference of Commissioners of Uniform State Laws (NCCUSL) and the American Law Institute (ALI), the two groups responsible for much of the development of uniform and model laws.5  These materials would provide general interpretive materials on specific laws. The legislative history on New Hampshire's passage of each law would be useful for obtaining specific New Hampshire interpretive materials.

NEW HAMPSHIRE'S UNIFORM COMMERCIAL CODE

The information above also especially applies to research of New Hampshire's version of the Uniform Commercial Code ("UCC"). New Hampshire considered adoption of the UCC in 1953, but did not actually adopt it until six years later when the Legislature enacted 1959 Laws of New Hampshire ch. 247.6  The act was approved on August 27, 1959 and went into effect on July 1, 1961. New Hampshire Supreme Court Chief Justice Frank R. Kenison indicates that New Hampshire was the third New England state and the fifth in the nation to enact the Uniform Commercial Code.7  The New Hampshire legislature adopted the text of the Uniform Commercial Code based on the official text sponsored by the American Law Institute and the National Conference of Commissioners of Uniform State Laws, with minor changes in wording and numbering to fit the text into a chapter of the New Hampshire Revised Statutes Annotated and some other variations "because of local conditions and because of optional provisions offered by the Official Text."8  This act was never published in the 1959 Laws of New Hampshire, but was published directly as a 1961 replacement volume of the New Hampshire Revised Statutes Annotated, as chapter 382-A, Uniform Commercial Code.9 

The 1961 New Hampshire Revised Statutes Annotated replacement volume containing the original version of the UCC which New Hampshire adopted supplies a wealth of information (not available elsewhere) relevant to the interpretation of the newly enacted UCC. It contains comments from the 1958 Official Text from the National Conference of Commissioners on Uniform State Laws and the American Law Institute which give interpretation from the original drafting institutions on each provision of the UCC. It also contains "New Hampshire Comments" which provide local interpretation of UCC provisions prepared by a group of law school professors and law students working under the auspices of the New Hampshire Bar Association.10  The editors of this replacement volume were careful to include information to link researchers to the former law. A "Prior Law" section appears, where appropriate, in each section where the text of the repealed New Hampshire statute was being replaced by the UCC provision.11  The editors also were careful to indicate in the case annotation section any earlier cases interpreting laws repealed by the newly adopted UCC.12  This is an excellent aid for any researcher who needs to delve into historical aspects relevant to interpreting current New Hampshire UCC provisions.

The current version of New Hampshire's UCC is contained in a 1994 replacement volume, the first to be published since the 1961 volume mentioned above. This volume does not contain the Official Comments from the 1958 text and does not contain the New Hampshire Comments. It does contain, however, more recent Official Comments from the National Conference of Commissioners on Uniform State Laws and the American Law Institute, including information on prior uniform statutory provisions, changes, and purpose of changes. This information enables the researcher to trace any changes between the 1958 version and the present. To do complete research on the intent of a particular UCC provision as indicated by comments, then, the researcher needs to check both the 1961 and the 1994 replacement volumes.

Both these replacement volumes contain additional aids to help the UCC researcher. The 1961 volume contains the forward and the introductory comments to the Official Text of the Uniform Commercial Code (from the ALI and the NCCUSL), the introduction to the 1959 New Hampshire Annotations, and a relevant report of the New Hampshire Judicial Council. Both volumes provide tables listing cross-references among the prior repealed New Hampshire Revised Statutes Annotated, individual uniform acts, and relevant UCC sections, and each provides a table listing statutory citations of other adopting states. Each of these UCC volumes (current and historical) has its own index at the end of the volume providing specific access to New Hampshire's UCC provisions. Of course, the UCC is also fully indexed in the general index of the New Hampshire code existing in 1961 and in the current index of the code. The UCC is published as part of the Uniform Laws Annotated publication described above, available on WESTLAW (ULA), and is also a UCC file in the 2NDARY library on LEXIS. All of these materials provide valuable interpretive information relevant to New Hampshire's Uniform Commercial Code.

NEW HAMPSHIRE'S CRIMINAL CODE

Shortly after the major effort to pass the Uniform Commercial Code, the New Hampshire legislature established the Criminal Law Revision Commission, this time to study the development of a new criminal code. This commission was created by chapter 451 of the New Hampshire Laws of 1967, and was composed of Richard H. Keefe and Clifford J. Ross, with Frank R. Kenison acting again as chairman. The commission was fortunate to have the assistance of Professor Sanford J. Fox from Boston College Law School to do the research and drafting to produce the reports and suggested code in a very short period of time.13  New Hampshire's new criminal code was heavily based on the Model Penal Code which had been drafted and approved by the American Law Institute only a few years earlier in 1962.14  New Hampshire became the twelfth state to adopt major portions of the Model Penal Code.15  New Hampshire's criminal code was also heavily based on the criminal codes from several other states which had recently completed their criminal code revisions, most notably the 1967 Michigan Revised Criminal Code, and the 1967 New York Penal Law.16  The commission, however, made it clear that it was "continuously desirous of shaping a criminal law that is adapted to the conditions and traditions of the State of New Hampshire"17  and was willing, if necessary, to recommend different provisions which it felt were important to maintain. In that regard, the commission consulted with a variety of local officials involved in the criminal justice system.18  The main goal of the commission was to "produce a more concise and simplified law" and also to ensure that the new code complied with United States constitutional requirements.19  The code was approved by the legislature in chapter 518 of the 1971 Laws and took effect on November 1, 1973.

The commission published a report20  which contained the recommended language of the new code, and after each statute section the commission includes a "Comment" section, which is exceedingly helpful in indicating the basic source(s) upon which that section was based (the Model Penal Code or some other source). The "Comment" section also describes the differences between the New Hampshire section from the models and discusses recommended changes from the previous New Hampshire law. Each of these detailed comments clarifies the intent of the commission and provides excellent legislative history information. Amazingly, these official comments were not later published with the first inclusion of the new code in the 1971 New Hampshire Revised Statutes Annotated pocket parts and these comments have never been included in subsequent replacement volumes and pocket parts. A researcher must therefore locate this report to take advantage of the insight the comments provide. Fortunately, copies of this study are plentiful.21  The explanatory notes which are published with the official draft of the Model Penal Code are another relevant source for background information on New Hampshire's Criminal Code.22  Of course, these are only relevant to the extent that New Hampshire actually followed the idea from that particular provision of the Model Penal Code.

The Report of the Commission also contains, at the end, a full subject index to the proposed code, and a "Distribution Table" providing cross references from the previous New Hampshire Revised Statutes Annotated to the proposed code (showing many omitted sections), and a "Derivation Table" providing cross-references from the proposed code back to the pre-1971 New Hampshire Revised Statutes Annotated sections (showing many new sections). This is very useful information for any researcher needing to trace the history of a criminal provision back in time, especially since the "Source" information given after each section of the newly adopted code in 1971 only gives information dated from 1971 forward. It does not indicate the earlier Revised Statutes Annotated sections and other earlier statutory compilations which would trace the law prior to that date. To do that, one would use the information from the Derivation Table to locate the earlier New Hampshire Revised Statutes Annotated statutory sections. One could then check the "Source" notes for that prior law to continue tracing back the historical development of the law.

ENDNOTES

1. For interesting general discussions of the joint role of the American Bar Association and the National Conference of Commissioners on Uniform State Laws in developing the concept of uniform laws and the developers' opinions as to the role uniform laws should play vis-a-vis federal law, see Walter P. Armstrong, Jr., A Century of Service: A Centennial History of the National Conference of Commissioners on Uniform State Laws 11-22 (1991); Edson R. Sunderland, History of the American Bar Association and its Work 50-55 (1953); and James Willard Hurst, The Growth of American Law; The Law Makers 290, 363 (1950); and for a definition and distinction between uniform and model laws, see Armstrong, supra, note 1 at 67-68.
2. N.H. Rev. Stat. Ann. ch. 382-A.
3. N.H. Rev. Stat. Ann. 18:2 (1988).
4. Uniform Laws Annotated Directory of Uniform Acts and Codes, Tables-Index. St. Paul, MN: West Group, 1998.
5. National Conference of Commissioners of Uniform State Laws. Proceedings. (1891 to date); A Guide to the American Law Institute Publications (Karen A. Russi, ed. 1999). Franklin Pierce Law Center Library has these two sets of microfiche.
6. N.H. Rev. Stat. Ann. 382-A (1961), Introduction at vii.
7. Id.
8. N.H. Rev. Stat. Ann. 382-A (1961), Preface at v.
9. Id.; N.H. Rev. Stat. Ann. 20:19 (1988).
10. RSA 382-A, supra, note 5.
11. Id. at vi.
12. Id. at vii.
13. Report of the Commission to Recommend Codification of Criminal Law iii (1969).
14. Id.
15. Foreword, Model Penal Code: Official Draft and Explanatory Notes xi (1985).
16. Report of the Commission, supra, note 12.
17. Id.
18. Id. at iv.
19. Id.
20. Report of the Commission, supra note 12.
21. These are available at Franklin Pierce Law Center Library, the New Hampshire Law Library, and at New Hampshire Division of Records Management and Archives.
22. Model Penal Code, supra note 15.

The Author

Professor Cynthia R. Landau teaches Legal Research at Franklin Pierce Law Center, Concord, New Hampshire and is the Assistant Director of the Law Library.

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