Volume 2, Issue 2
2nd Quarter, 2007

Uniform Laws - Determination of Death Act/Anatomical Gifts - Future Legislation

Peter Langrock, Esq.

This article was adapted from a lecture given by Peter Langrock, Esq., at the 2nd Annual Colloquium on the Law of Transbeman Persons, on December 10th, 2006 at the Space Coast Retreat of Terasem Movement, Inc., Melbourne Beach, FL.

Peter imparts his expertise, knowledge and participation in the committees on the Uniform Determination of Death Act, Uniform Anatomical Gift Act, and the Misuse of Genetic Information in Insurance & Employment and how the law adapts to perpetually changing technologies.

I want to impart to you is that the law is a follower. The law does not lead in scientific areas. Once upon a time the world was found to be round and not flat. The law had nothing to do with that finding. Once the world became known as being round, the law developed all sorts of institutions to deal with that fact. So the law I'm talking about is both international law and domestic law.

I make my living by talking to groups not much smaller - that's called a jury, and I find myself to be a story teller. I'm going to use a couple of examples on how the law comes from behind to catch up.

The Uniform Commercial Code is a law that's enacted in every state except Louisiana, which still has the Napoleonic Code as its basic law. What it did was codify the Law Merchant. The Law Merchant was out there which was the real way that the merchants dealt with each other. And one of the stories which I love about this is how it started, was a man by the name of Noah/Judah Benjamin. He was the attorney general for the Confederacy. He was a Jew, he was born in the Caribbean and migrated to Louisiana. During the 1850s he went across the Isthmus in Panama, up the West Coast, and tried the Almandine Mine case which established all the land law for California.

He came back and he was the attorney general, he was a U.S. Senator, resigned from the Senate when the states succeeded and became the attorney general and was the brains behind Jefferson Davis in the Confederacy. After the war he escaped to London and not having anything to do and no way to make a living, he wrote a book called Benjamin on Sales, and Benjamin on Sales became the treatise that took all the law merchant together and caught up with what was happening in the real world. That was succeeded by the Uniform Sales Act and eventually by the Uniform Commercial Code. The reason I mention this is that one of the reasons I'm here is my involvement in the National Conference of Commissioners on Uniform State Laws NCCUSL) and the role they play in law reform and I think the role they will play in the future.

Image 1: National Coference

The commissioners were formed in 1892 to develop a uniform marriage and divorce act; they failed; it never worked. The concept being that each state -- that uniformity is desirable from state to state. The conference is composed of usually three lawyers from each state by gubernatorial appointment who meet each summer for an eight-and-a-half day session, and it's a working session. I admit it really is. And they've done this ever since 1892.

This summer will mark my 42nd consecutive conference, and I love it. The quality of the people and the work they do, Chief Justice Rehnquist, Justice Souter, Woodrow Wilson, Senator Rudman have all served as commissioners along with Llewellyn and Pound. And so the dedication they put into the development of these laws -- and the way the laws work is, there is a Drafting Committee. You go through scope and program, you go through the Executive Committee, and then it goes to a Drafting Committee which presents to the conferences as a whole, a draft in their legislative area.

The conference then reads it line by line. And we'll get to that in a second. They have to do two annual conferences. So each word, each comma realistically, is debated so that the nuances come through.

The quality of the product is the best drafting product anywhere, probably in the Western World. And it brings together the people from the rural areas, it brings people from the urban areas, it brings judges, legislators, practicing lawyers all together.The input is a very wonderful process which gets me to my main thesis of the day today, the interest
in some statutes arising from modern advances in life saving technology. I'm talking here about the Determination of Death Act and the Uniform Anatomical Gift Act.

Image 2: Statutes Arises

A person may be artificially supported for respiration and circulation after all brain functions cease irreversibly.

The medical profession has also developed techniques for determining loss of brain functions while cardio-respiratory support is administered. At the same time the common law definition of death cannot assure recognition of these techniques.
The interest in these statutes arises from modern advances in lifesaving technology.

Image 3: Death Act

This is part of the preamble for the Act in 1980, and this is what we were looking at that time.

The common law standard for determining death is the cessation of all vital functions traditionally demonstrated by absent andspontaneous respiratory and cardiac functions. There is then a potential disparity between current and accepted biomedical practice and the common law. In 1967, '68 and again 1976 the Conference Commissioners passed the Uniform Anatomical Gift Act. You people are familiar with that, and so is most of the public because on most driver's licenses across the common law
standard for determining death is the cessation of all vital functions traditionally demonstrated by absent andspontaneous respiratory and cardiac functions.
There is then a potential disparity between current and accepted biomedical practice and the common law. In 1967, '68 and again 1976 the Conference Commissioners passed the Uniform Anatomical Gift Act. You people are familiar with that, and so is most of the public because on most driver's licenses across the country there is a place to check the box to invoke it, and there are various groups who push it and various groups who have opposed it over the years.
The question that comes about, is when can you harvest the organs? And it became important to determine when that could happen. The ABA, American Bar Association, did a definition, the American Medical Association did a definition, and they came together with the Conference Commissioners to try and -- I'm going to see if this works now. Let's see. Well, no, not quite there yet -- with the conference commissioners.

The conference, there is another little story about this, this is probably the shortest act ever passed by the conference. It's a one-paragraph act, but it was not one without controversy. Albert Jenner, who was the founding partner of Jenner & Block, was also the Chief Counsel to the Warren Commission and also the author of The Articles of Impeachment of Richard Nixon; he was very much involved. I can remember one winter; I think it was '73, when Chuck Morgan from Atlanta said, "We are going to impeach the president." He said, "You can't do that. He's the president of the United States. It's horrible for you to talk about it." Four months later I heard him talking to Representative Rodino’s personal attorney trying to get the job as Chief Minority Counsel, so he was flexible - he was also a brilliant fellow. And they went to his offices and with the assistance of John McCabe they put together the Uniform Definition of Death Act.

Next Page

The Uniform Commercial Code – one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in 49 states (all except Louisiana) within the United States of America. This objective is deemed important because of the prevalence today of commercial transactions that extend beyond one state (for example, where the goods are manufactured in state A, warehoused in state B, sold from state C and delivered in state D). http://en.wikipedia.org/wiki/Uniform_Commercial_Code March 22, 2007 10:00AM EST The Uniform Commercial Code may be accessed at:
http://www.law.cornell.edu/ucc/1/ March 22, 2007 10:02AM EST

Napoleonic Code - or Code Napoléon (originally called the Code civil des Français) was the French Civil Code, established at the behest of Napoléon I. It was drafted rapidly by a commission of four eminent jurists and entered into force on March 21, 1804.

http://en.wikipedia.org/wiki/Napoleonic_code March 22, 2007 10:10AM EST

Law Merchant - a legal system used by merchants in medieval Europe, including England. Rather than being the result of the edict of a final authority, it was evolved based on common usage.

http://en.wikipedia.org/wiki/Law_Merchant March 22, 2007 10:14AM EST

Jefferson Finis Davis (June 3, 1808 – December 6, 1889) was an American statesman and politician who served as President of the Confederate States of America for its entire history from 1861 to 1865 during the American Civil War.

http://en.wikipedia.org/wiki/Jefferson_Davis April 11, 2007 3:48PM EST

Benjamin, Sale of Goods - The classic authority on sale of goods, this title provides you with high level, comprehensive advice on case law and legislation regarding sales of goods internationally.

http://www.thomson.com.au/catalogue/shopexd.asp?id=1954 April 11, 2007 3:53PM EST

Uniform Sales Act – Increasing interstate business and individual movement has created a need in the U.S. for a uniform law governing the sale of goods/services.

http://links.jstor.org/sici?sici=0042-6601 April 11, 2007 4:00PM EST

National Conference of Commissioners on Uniform State Laws (NCCUSL)now 115 years old, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of the law. NCCUSL’s work supports the federal system and facilitates the movement of individuals and the business of organizations with rules that are consistent from state to state.

http://www.nccusl.org/Update/ April 11, 2007 4:08PM EST

William Hubbs Rehnquist (October 1, 1924–September 3,2005) was an American lawyer, jurist, and a political figure, who served as an Associate Justice on the Supreme Court of the United States and later as the Chief Justice of the United States.

http://en.wikipedia.org/wiki/William_Rehnquist April 11, 2005 4:13PM EST

David Hackett Souter (born September 17,1939) has been an Associate Justice of the Supreme Court of the United States since1990. He filled the seat vacated by William J. Brennan.

http://en.wikipedia.org/wiki/David_Souter April 13, 2007 2:27PM EST

Thomas Woodrow Wilson (December 28, 1856 – February 3, 1924), was the 28thPresident of the United States. A devout Presbyterian and leading intellectual of the Progressive Era, he served as president of Princeton University then became the reform governor of New Jersey in 1910.

Warren Bruce Rudman (born May 18, 1930 in Boston, Massachusetts) was an American Senator from New Hampshire. He was elected as a Republican in 1980 and re-elected in 1986, and was known as a pragmatic centrist.

http://en.wikipedia.org/wiki/Warren_Rudman April 13, 2007 2:34PM EST

Llewellyn and Pound - N. E. H. Hull tells the pivotal story of American jurisprudence through two of its most influential shapers: Karl Llewellyn, father of legal realism, poet, and mercurial romantic, and Roscoe Pound, iron-willed leader of sociological jurisprudence. These theorists adapted the legal profession to the changing needs of twentieth-century America.

http://books.google.com/books?id=tS8ZQZOd6bkC&pg April 13, 2007 2:40PM EST

Uniform Determination of Death Act – February 10, 1981

http://www.law.upenn.edu/bll/ulc/fnact99/1980s/udda80.htm April 13, 2007 3:03PM EST

Uniform Anatomical Gift Act (1987) - http://www.law.upenn.edu/bll/ulc/fnact99/uaga87.htm April 13, 2007 3:05PM EST

Albert E. Jenner, Jr. – (b. June 20, 1907 d. September 18, 1988) Jenner was a member of the Presidential National Commission on the Causes and Prevention of Violence, which investigated causes of violence surrounding the assassination of Sen. Robert Kennedy. Jenner also served as senior counsel to the Warren Commission, which investigated the 1963 assassination of President John Kennedy.

http://mason.gmu.edu/~rrotunda/jenner.htm April 13, 2007 3:21PM EST

Warren Commission - The President's Commission on the Assassination of President Kennedy, known unofficially as The Warren Commission, was established on November 29, 1963, by Lyndon B. Johnson to investigate the assassination of U.S. President John F. Kennedy on November 22, 1963.

http://en.wikipedia.org/wiki/Warren_Commission April 13, 2007 3:24PM EST

NCCUSL Drafting Committees - are committees actively engaged in the drafting of a specific uniform or model act which will be submitted for consideration and possible promulgation by the National Conference on Commissioners on Uniform State Laws. http://www.nccusl.org/Update/Committees_desktopdefault.aspx April 13, 2007 3:42PM EST

1 2 next page>