ALI Council Reviews Recommendations on Institute Governance, Approves Drafts for Annual Meeting

At the Council meeting in New York City on October 19 and 20, the Institute’s Special Committee on Governance presented its first report and recommended far-reaching changes in the Institute’s governance policies and procedures. The Committee, which is chaired by Robert H. Mundheim, was appointed by President Michael Traynor in August 2005 to provide advice about the Institute’s present governance, particularly in light of the principles the Institute is developing in its Nonprofit Organizations project and the examination of practices triggered by highly publicized governance failures in both the commercial and nonprofit sectors. The report generated serious discussion but was generally very well received. Among other changes, the Committee recommends setting term limits for Council members, officers, and standing-committee members, as well as modifying the length of their respective terms. Its proposals include detailed transition rules for persons currently holding those positions. The Committee anticipates that its recommended changes will make the ALI’s processes and avenues to leadership more open and transparent. A set of major Bylaw amendments is expected to be presented to the Council for approval in December and to the membership for approval next May.

The Council also reviewed a complete draft of the Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes project and approved its submission as a Proposed Final Draft at the 2007 Annual Meeting. Two of the Reporters for the International Intellectual Property project, Professors Rochelle C. Dreyfuss and Jane C. Ginsburg, presented Council Draft No. 2, containing all four portions of the project: Part I on definitions and the scope of the principles, Part II on jurisdiction, Part III on applicable law, and Part IV on recognition and enforcement of foreign judgments in transnational cases. (A Discussion Draft containing an earlier version of the material was submitted to the membership at the 2006 Annual Meeting.) The Council’s discussion focused on several issues identified by the Reporters: the proposed methods in §§ 221-223 for coordinating and streamlining litigation of multiterritorial actions, the joinder of insurers and other third parties described in § 207, and the consistency of the project with the ALI’s recently completed Recognition and Enforcement of Foreign Judgments project and its ongoing Software Contracts project.

In addition, the Council discussed and approved drafts from Reporter Evelyn Brody on the governance portion of the Nonprofit Organizations project, and from Reporter Kevin R. Reitz on the Model Penal Code: Sentencing project. The Sentencing draft contained material on the authority of sentencing commissions, presumptive sentencing guidelines, and the authority of courts in sentencing, and an Appendix concerning advisory sentencing guidelines. Drafts of both projects will be submitted for consideration by the membership in 2007.

Finally, Professor Mark P. Gergen of The University of Texas School of Law introduced the Council to the project on Economic Torts and Related Wrongs. Council Draft No. 1 contained Chapter 3 on the economic-loss rule and Chapter 4 on liability rules. The draft was not presented for approval, and the Chapters will be revised for further presentation and discussion at subsequent meetings in the project.

At the Council’s dinner on October 19 at the Century Association in midtown Manhattan, the Institute’s first Distinguished Service Award was presented to Council member John T. Subak and its fifth Wisdom Award was presented to Jack B. Weinstein, Senior Judge of the U.S. District Court for the Eastern District of New York. (For more on the awards and presentations, see articles on page 3.) To conclude the evening, Council member Herbert P. Wilkins delivered a light-hearted talk entitled "Life after the Supreme Judicial Court."

At its next meeting in Philadelphia on December 7 and 8, the Council will consider new Restatement drafts on Restitution and Unjust Enrichment and Torts: Liability for Physical and Emotional Harm, as well as drafts in the Software Contracts and Aggregate Litigation projects. The complete agenda for the 2007 Annual Meeting, which will be held in San Francisco on May 14 to 16, will be determined after the December meeting.

During the ALI Council's meeting in New York on October 19 and 20, Council Member John T. Subak was presented with the Institute's first-ever Distinguished Service Award.