http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Blog from the 88th ALI Annual Meeting en-us Copyright 2011 ALI.org http://backend.userland.com/rss/ Wed, 01 Jun 2011 11:20:08 EST In the final day of this year 's ALI Annual Meeting I learned from the address (see earlier-posted blogs for details) of ALI Young Scholars Medal winner Professor Bar-Gill about how irrational I have been for years in my decisions regarding cell phones and cell phone plans. As anxieties increased over those irrational decisions I decided right then and there to change plans and carriers. But, naturally, in the Grand Ballroom there was no cell signal. So as a healthy distraction from this towering cell-centered-distress it was time to visit with the ALI staff who travelled to SFO to make the Annual Meeting happen so beautifully. A week before the meeting ALI staff filled and shipped out to SFO ~100 boxes, containing almost 240,000 pages of written materials, for the benefit of the approximately five hundred ALI member-registrants and twenty-one guests. While fourteen professional ALI support staff made the journey to San Francisco for the meeting, two stayed behind in Philadelphia to hold down the fort there. Most flew to SFO last Saturday on the same airplane (helping US Airways stay in business) while others came out Sunday morning. Upon arrival at the hotel two local area computer networks had to be set up for the ALI. From the first official event of this year 's Annual Meeting, the Principles of Government Ethics MCG on Sunday afternoon, through the last event, the Executive Committee meeting last evening and today, the ALI staff 's unending professional deportment did indeed make it a seamless event. Although they stayed at the host site Westin St. Francis, their 10-16 hours workdays left them tired but still cheerful, with little if any time to see and enjoy the sights of SFO. When asked what they enjoyed most about the city, people watching (non-ALI members, that is), sea lions by Fisherman 's Wharf, and food were at the top of the list. And how does a group of fourteen professional staffers keep a crowd of five hundred lawyers happy over a five day period?[sorry, no punch line coming] Ever self-effacing, the staff said it is the members of ALI who make their jobs easy via mutual respect, humor, and courtesy. As President Ramo noted yesterday, we are quite fortunate to have these good souls with us as part of the Institute. Along the way of those four days about 100 gallons of hot coffee and an almost equal amount of hot water for tea was provided in the hall outside the Grand Ballroom; 1067 special event meals were consumed; and a bit over 1000 hours of CLE credit were claimed. But, then, those metrics are of little significance here other than noting little caffeine was wasted. When asked what the high point was of this year 's meeting the unanimous response by staff was seeing Mike Traynor and Guy Struve receiving awards and then listening to Mike and Guy in their acceptance speeches. One could not help but notice the smiling ALI staffers come into the Grand Ballroom during the awards presentation. Their chosen make-up at that moment was in the color of readily apparent genuine joy. So, what 's next? For the staff, in a couple of months they 're back to the often invisible planning and organizing for the 2012 ALI Annual Meeting in Washington D.C. For me, probably more cellular-based irrationality. Need more bandwidth. Some nudging or soft paternalism could help. Alternatively, semaphore might suffice. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Dick Reeve Thu, 19 May 2011 20:20:01 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=67 The ALI Annual Meeting is unlike some other conferences (such as a federal judicial conference that I attend and will remain nameless) where the "work" part of the conference is short and there is lots of time for recreation. There is no golf or tennis at the ALI. Given that there was little free time during the last two days of the conference, I did not have a chance to update my blog. Here are some thoughts about the last two days of the conference. I am a member of the Members Consultative Groups for the Employment Law and Nonprofit Organizations projects. Although I enjoy and learn from the discussions of all of the projects discussed at the Annual Meeting, I definitely am more engaged and informed during the discussions of the projects for which I am an MCG member. I would encourage members to join MCGs. It is much easier to have input into a project 's work before it is presented at an Annual Meeting. Even if you cannot attend MCG meetings, you will receive all of the drafts for the project and have the opportunity to comment. In March, there was remote access to the MCG meeting for the Insurance Law project and I expect that there will be further developments on the technology access front. Speaking of technology, this is the third year in which I have blogged from the Annual Meeting. Each of us who blogs has a different style. I have heard from several members about my blog and those of others. But, in our current format, there is no ability for people to "like" what I say or comment in that way that one can on Facebook or other social media. Again, I expect that there will be some developments coming in this area. But, in the meantime, I would like to know your thoughts or comments about the blog. Did you enjoy it? Did you object to or disagree with something that I have said? Is there something that you would like to hear next year? If you have anything to say, please email me: hmstichel@ghsllp.com. Put ALI Blog in the subject line so that I will not delete your message as spam before I read it as I sometimes do when I receive emails from unfamiliar sources. Although being a member of a MCG can increase your understanding of and involvement in a project, my comments above should not discourage members from attending parts of the Annual Meeting in which they have no prior involvement or that are outside of their usual areas of expertise. One of the valuable things about the Annual Meeting is that often the reporters and those most closely involved in the project benefit from comments of members whose expertise is in other areas and can add comments about how the project at hand impacts or can benefit from the jurisprudence of another area of the law. The last section of the last discussion at the Annual Meeting, the attorneys ' fee provision of the Nonprofit Organizations draft, is an example. There are attorneys ' fee provisions in various areas of the law. Not all of them have the same standards or methods of calculation. The discussion benefitted from the perspectives of the members who spoke. Although the ALI Annual Meeting is a working meeting with little time for play, that does not mean that the members do not get in some play before or after the Annual Meeting. The San Francisco venue for this year 's meeting gave many of us from the East Coast and elsewhere to enjoy Northern California. As Roberta Ramo noted in her introduction of Lord Phillips on Monday morning, the President of the Supreme Court of the United Kingdom swam in the ocean the day before the meeting. David Gossett, one of our members from Washington, D.C., ran in the Bay to Breakers 12K foot race on the same day. (David said that he did not want to make his debut in the ALI blog by my identifying him as the guy who has commuted to Annual Meetings in DC by bicycle, carrying his helmet with him into the meeting. But as a sometime fellow bicycle commuter, I could not resist.) Nancy Shearer of the ALI staff is returning to Philadelphia via Amtrak, taking three historic routes, the Coast Starlight, the Empire Builder and the Cardinal. I took the Empire Builder and the Cardinal on a cross-country trip in 1984 and have wanted to cross the United States again by train. I will have to think about that for the next time that the ALI comes to San Francisco. Roberta Ramo quipped, tongue in cheek, during the Nonprofit Organizations project discussion that she was happy that the Annual Meeting was ending a few minutes early because there was a shoe sale nearby. She did not say where the sale was, but the concentration of world-class retailing within two blocks of the Annual Meeting site is amazing. I did take the opportunity of the early ending to visit several emporiums. I was tempted by several things, but kept my credit card firmly planted in my wallet. Finally, I am spending the rest of the week in Northern California. Last night, I picked up a rental car and drove south. This morning, I watched the AMGEN Tour of California bike race on the first climb of the day. I now am sitting in an internet café in Salinas and will be visiting the Steinbeck National Center in a few minutes. Then, I will head north and meet a friend for two days of bike riding in the Sierras and around Lake Tahoe. I enjoyed the Annual Meeting and blogging about it. Thank you for reading. See you next year in Washington, D.C. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Mark Stichel Thu, 19 May 2011 14:50:01 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=66 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog ALI Blogger Thu, 19 May 2011 09:03:14 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=65 Closing out three eventful days of ALI proceedings in San Francisco, the membership granted approval to the third Tentative Draft of the Principles of the Law of Nonprofit Organizations (up to Section 660), and President Ramo pronounced the meeting adjourned at 3:40. I believe she mentioned a shoe sale somewhere in Union Square . . . I know I speak for many ALI members in echoing President Ramo’s thanks to the Institute’s wonderful staff in putting together another great meeting. Although I can only imagine how much time you invested in making a San Francisco meeting run as seamlessly as a D.C. meeting, you made it look easy. See you next year, and thank you. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Kristen D. Adams Wed, 18 May 2011 18:50:00 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=63 Addressing the Institute’s Membership Luncheon on Wednesday afternoon, renowned litigator and former Stanford Law School Dean Kathleen M. Sullivan explored the question of whether Constitutional law is actually law. As President Ramo noted in introducing Sullivan, she was not only the first woman to be named Dean of Stanford Law School, but also the first woman to lead any of Stanford’s various schools. In her remarks, Professor Sullivan explored three potential possibilities: first, that Constitutional law is not law, but instead politics; second, that the subject is not law, but rather an exercise in equity; and third, that Constitutional law is, after all, law. In rejecting the first possibility – that Constitutional law is nothing but the naked exercise of political will and power - Sullivan noted as an initial matter that this is the viewpoint most commonly espoused by the popular press. She pointed out, however, that conventional conceptions of liberality and conservatism have been turned “topsy turvy” from time to time, especially in cases involving free speech and federalism, thus tending to prove that Constitutional law is not just politics. In making this point, Professor Sullivan cited several cases in which ostensibly left-leaning Justices have taken a “conservative” approach and ostensibly right-leaning Justices have taken a “liberal” approach. In exploring the second possibility – that Constitutional law is not law at all, but instead an exercise in equity – Professor Sullivan began by noting that there are indeed identifiable, fundamental values that underlie Constitutional jurisprudence. Freedom of speech, for example, can be said to serve the cause of liberty, on the one hand, or equality, on the other. And of course, identifying the value to be served does, from time to time, help to guide the Court’s decision. Likewise, underlying many federalism cases are differing views regarding the value of civil litigation. One view would tend to favor national power, national markets, and the expertise of federal administrative agencies over the piecemeal decision-making process of juries considering discrete cases. This view, of course, would militate in favor of a lesser role for civil litigation in elucidating public values. A competing view – which would support a more expansive role for civil litigation – is that juries are a quasi-democratic means of speaking truth to power and an essential source of public values. Ultimately, Professor Sullivan advocated for the third possibility: Constitutional law is, after all, law. In elucidating this position, Sullivan posited that the existence of seeming inconsistencies in Constitutional jurisprudence actually helps to prove her point. She described the principles of freedom of speech and federalism as constant, transcendent, trans-substantive values, comparing them to a keel that provides correction and stability to a ship in rough waters. In driving the point home, she argued that Justices from time to time line up on one side of the issue in one free speech case, and on the other side in another case, precisely because the value of free speech is one that transcends the current political debate. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Kristen D. Adams Wed, 18 May 2011 18:00:01 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=62 Professors Oren Bar-Gill and Jeanne C. Fromer, of New York University School of Law and Fordham University School of Law, respectively, were honored today with the ALI’s first-ever Young Scholars Medals. Professor Bar-Gill addressed the group today, and Professor Fromer will speak next year at the annual meeting in Washington, DC. The Young Scholars Medal honors outstanding young scholars whose academic work has demonstrated the potential to influence improvements in the law in a profound and practical way. The Institute received 71 nominations, and the Selection Committee carefully reviewed not only the nominations themselves, but also each candidate’s curriculum vitae, several articles per candidate, and additional materials. Professor Bar-Gill’s scholarship centers on consumer psychology, while Professor Fromer’s work explores the claiming systems of patent and copyright law. In addition to the medal itself and the opportunity to address the Institute at an annual meeting, each winner will receive $5,000 and the opportunity to plan a conference seeking to identify subjects that likely would benefit from law reform. In his address today, Professor Bar-Gill spoke about consumer psychology, market failure, and what the law can do to help. In describing the problem of market failure, he noted how the phenomenon of present bias affects consumers’ behavior with respect to credit cards and their preference for “free” cell phones requiring a long-term contract, as well as how the complexity of modern mortgages may affect consumer default levels, especially among those consumers with low levels of numerical sophistication. In suggesting how the law may help, Professor Bar-Gill advocated for “soft paternalism,” or “nudging,” as opposed to “hard paternalism.” Examples of soft paternalism may include what Professor Bar-Gill termed “simple disclosures targeting consumers” or “complete disclosures targeting intermediaries.” Another example would be providing a “safe harbor” for certain “plain vanilla” qualified products such as simple mortgages, while permitting the more complex, more potentially problematic mortgages to be offered, albeit subject to heightened regulation. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Kristen D. Adams Wed, 18 May 2011 14:30:00 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=61 I wrote an earlier blog post about the continuing debate, which seems to come up in virtually every ALI project, regarding the extent to which the Institute’s work should track the existing law – or instead seek to change it. Today’s discussion of the Principles of the Law of Nonprofit Organizations raised another familiar discussion thread: What should be contained in the prominent black letter of an Institute product, and what should instead be relegated to the commentary? The particular topic being discussed was the use of the word “rare” within the context of Section 650 (a), “Actions on Behalf of the Charity; The Derivative Suit.” The specific context is this: “A suit on behalf of a charity to obtain a judgment against one or more current or former fiduciaries or other parties . . . may be maintained in those rare circumstances permitted by law (as set forth in this Section), and subject to the organizational documents and public-policy limitations relating to the autonomy of charities.” Several speakers raised questions from the floor regarding this particular terminology, noting that it sounds a strong cautionary tone: “Judge, be careful! Are you sure you want to allow this suit to go forward?” Reporter Evelyn Brody provided some context for the decision to insert the word, noting that the Advisers and Members Consultative Group members had strongly encouraged her to make sure readers of the Principles would be on notice that these suits should not be permitted to go forward easily. Although some speakers urged the Reporter to consider moving the warning language to commentary, others found the language useful, especially for the purpose of educating judges who may not be particularly familiar with this area of law. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Kristen D. Adams Wed, 18 May 2011 13:30:01 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=60 Mark Yudof, the 19th president of the University of California, addressed the assembled crowd at the annual meeting dinner on Tuesday evening. President Yudof earned a standing ovation for his remarks on public universities and their role in the common good. President Yudof has recently celebrated his third anniversary as leader of the massive California state university system, including more than 180,000 faculty members, which he inherited with a one billion dollar deficit necessitating widespread furloughs (including of himself) and a 40% increase in tuition. Noting as an initial matter that public universities have always been hybrid goods – rather than purely public or private goods – President Yudof then turned to describing some areas in which privatization has grown measurably in the United States over the last number of years: the post office, the military, law enforcement, and even our highways. He cautioned the group that public universities must not follow this trend, citing the example of Chief Justice Earl Warren, who ascended from a modest background to attend the University of California, Berkeley and Boalt Hall for his B.A. and LL.B, respectively, becoming Attorney General of California, Governor of California, and then Chief Justice of the United States Supreme Court. President Yudof reminded the group that Earl Warren, like so many young people of today (who, as he reminded the group, may be Ernesto or Elena rather than Earl), could not have paid the full cost of his own tuition in a privatized university system. President Yudof closed by calling upon public universities to look at their operations through the lens of private sensibilities and efficiencies , state governments to rededicate themselves to supporting public universities’ core functions, and all of us to remember that public universities belong to all Americans. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Kristen D. Adams Wed, 18 May 2011 09:00:24 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=59 The employment law session is now drawing to a close. "The trouble was, the overwhelming majority of the cases that were brought to us seemed to talk about the employee as having a duty of loyalty. So we went ahead and put this in the Restatement of Agency. But we were not as careful then to say that the duty had many aspects, and that some of these might not fit. So here we are again . . . and it is not useful to talk about trying to abolish the use of the phrase 'the duty of loyalty '. It is much more useful to show why, in different contexts, it does not apply. That is what Sam has been doing." With these words came the Boskey motion to approve this tentative draft, made by Mr. Boskey himself. A proposed amendment followed: that one issue, extending the duty of loyalty beyond commercial contexts, be excluded from the motion. It was rejected as not a friendly amendment--and rejected by the membership as well. The Boskey motion then passed, to applause. The ALI adjourned until this evening, when we will eat well and hear from President Yudof of the University of California. Some years ago, I heard President Yudof speak at the AALS, when he was leading the University of Minnesota (as I recall). His remarks then sounded what to me was a critically important theme about the role of public universities and public law schools: that moving towards the financing models of private law schools was a serious and unfortunate departure from their public missions. Students acquiring debt, as tuition costs rise, are less well positioned to go to work in public service occupations or to meet the legal needs of those who can pay less for legal services. These trends, it seems to me (as a faculty member at a public law school that tries its best) have only continued in the years since. In light of the resounding endorsement of access to justice in the opening session of this ALI meeting, I am looking forward very much to President Yudof 's remarks tonight. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Leslie Francis Tue, 17 May 2011 20:20:26 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=58 Another note for academics. In the judgment of the drafters of the Restatement (Third) of Employment Law, it would not violate the duty of loyalty for a faculty member at the University of Nebraska to attempt to convince a colleague to apply for the provost position at the University of Kansas. It might, however, violate the duty to attempt to convince the entire economics department at Nebraska to defect to Kansas . . . http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Leslie Francis Tue, 17 May 2011 19:50:26 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=57 Some of the most spirited debate during today’s discussion of the Restatement (Third) of Employment Law surrounded the concept of “loyalty” as found in section 8.01, entitled “The Employee Duty of Loyalty.” Opponents of this terminology argued, among other things, that the phrase doesn’t truly capture what is required of an employee – suggesting that “mandatory obligation” is a more accurate descriptor. Proponents, by contrast (including the Reporters) noted that, as Comment ‘a’ states, this is “the phrase that courts use to capture those core employee obligations that derive from their agency relationship with the employer.” This terminology is also found in the Restatement (Third) of Agency. As other bloggers have noted during this meeting, this is one of the important recurring debates in the American Law Institute: Should an Institute project – and especially a Restatement project – seek to mirror existing law and existing terminology or seek to influence the direction of the law and, as part of that effort, seek to change the vocabulary we use to describe that law? Stay tuned as the conversation continues. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Kristen D. Adams Tue, 17 May 2011 19:30:27 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=56 Is the "duty of loyalty" an outmoded idea, despite its use by the courts and by the ALI in the recent Restatement of Agency? If the contribution of the ALI is to be found in accurate, clear statements of what the law is, perhaps the ALI should refer to the "mandatory obligations of employees" rather than using a phrase that suggests the employer/employee relationship really is a mutual one. Or so a commentator suggests. The effort of the drafters is to limit this "duty of loyalty" and the reporters ' notes try to do this, members were told. But concerns remain that this language will be interpreted too broadly, especially in the context of labor activity or whistleblowing. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Leslie Francis Tue, 17 May 2011 19:10:26 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=55 The session on employment law is now in full swing. We 've just shifted from discussing the section on other torts affecting the formation, continuation, or termination of the employment relationship to discussing employee obligations and restrictive covenants. Most of the comments concerning the torts section were clarificatory but there is an underlying theme of how much the ALI should criticize legal trends that are less protective of employees who are harmed by employers who lie about reasons for termination. Now, the discussion is turning to employee rights in intellectual property created during the employment relationship. Several commentators are concerned that the draft is constructed to apply to patents rather than to copyrights, trade secrets, or confidential business secrets. The draft creates a presumption that an employee hired to do "inventive" work is presumed to assign patents to the employer. Otherwise, the employee has the right to patent ideas generated on the job. The explanation is that the ALI is attempting to track the case law as it exists but this will be given further study. Academics take note: what the ALI says here may raise questions about whether they hold their own copyrights (as generally assumed by many academics), or whether their employers hold copyrights (should what faculty publish be sufficiently valuable for their employers to care). http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Leslie Francis Tue, 17 May 2011 18:30:27 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=54 The Honorable Tani Cantil-Sakauye, Chief Justice of the California Supreme Court, addressed the Institute's annual luncheon honoring new life members (that is, 25-year members) and 50-year members. The Chief Justice, who assumed her current leadership role 5 months ago but has been a member of the judiciary for more than twenty years, chose as her topic the current state of the California judiciary. As the Chief Justice noted, the California state court system is the largest in the nation, encompassing more than 500 locations and serving one of the most diverse populations in the world. She addressed the challenges of providing equal justice under the law for everyone in the state, especially during an era of needing to do "more with less." Even during this difficult time, the Chief Justice reported, the California judiciary is perhaps better equipped than ever to weather the storms of adversity, due in large measure to more than 14 years of change and planning, during which time the judiciary was able to secure its funding and become the owner, manager, and operator of its own court properties, which total a staggering 19 million square feet. Reflecting a passion for public access to justice, which she described as a guiding principle, the Chief Justice closed her inspiring remarks by reminding the assembled crowd that the judiciary stands on the front lines in difficult times and owes a duty to the public to provide a civil safety net. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Kristen D. Adams Tue, 17 May 2011 18:10:26 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=53 Although none of the presenters or commentators at this morning 's session would have been crass enough to use the term marketing or refer to the ALI 's work as a product, a recurring theme this morning was the use and acceptance of the ALI 's work. The withdrawal of the 2003 Amendments to UCC Articles 2 and 2A was a stark reminder that not everything we do is accepted as gospel. I was amused by Andrew Kull 's comment that if the ALI had been able to see the future in 2000, perhaps it should have called the restitution project the Restatement of Clawback and Unjust Enrichment. The comments of Guy Struve and others about potential future projects and advocacy of various positions in current projects, such as the Model Penal Code Sentencing provisions vis-à-vis their acceptance by courts, legislatures and others were food for thought. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Mark Stichel Tue, 17 May 2011 17:00:27 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=52 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog ALI Blogger Tue, 17 May 2011 15:02:41 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=51 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog ALI Blogger Tue, 17 May 2011 14:55:00 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=50 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog ALI Blogger Tue, 17 May 2011 14:50:10 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=49 In response to the fact that no state has adopted the 2003 amendments to UCC Articles 2 and 2A, the Institute voted today to withdraw the amendments formally. PEB Research Director Neil Cohen described this as “a motion to conform the text with reality.” Noting that this is one of the very few areas in which proposed revisions to the Uniform Commercial Code have not been successful, Cohen observed that “this was a project the world just wasn’t ready for.” He noted that this project has had a history fraught with difficulty, recalling the Article 2B and UCITA projects and the debates regarding whether the draft favored consumer interests too heavily. Speakers from the floor, in turn, applauded the Institute for its action, noted that the draft may not have been accepted as law but may nevertheless represent excellent policy that should not be forgotten entirely, and recalled some of the important goals the proposed amendments had sought to address. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Kristen D. Adams Tue, 17 May 2011 14:30:23 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=47 The session opened with Reporter Kevin R. Reitz providing an overview of some of the major elements of this project and this latest draft. Key items mentioned were the removal of the parole board and using the sentencing judge as the major player in review, disapproval of mandatory-minimums, and the use of “second-looks” for long prison sentences. Moving through each provision, there was discussion of the new provisions pertaining to juvenile offenders and Reporter Reitz noted that later provisions will speak to collateral consequences and will reference some provisions that are in the sections now being examined. He also discussed the changes being offered with respect to the good-time provisions. A comment was offered on the need to soften the tone in this section so as not to antagonize parole or other similar authorities. Comments also focused on whether to specify certain items in the section on prison release and post-release supervision (e.g. – what constitutes “serious” and used in section 305-1(4)). Who should have the decision-making authority on reduction of prison terms for good behavior? This has been an area of enormous controversy in the past. Reporter Reitz noted that a “principles for legislation” approach is taken here, and the suggestion of using retired members of the judiciary. Some questioned the specification in this draft of 15 and 10 years as times for these second looks, arguing that it should be lesser amounts. The session ended with a general discussion of the project itself followed by a vote on the tentative draft, which was overwhelming approved. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Ellen S. Podgor Tue, 17 May 2011 13:50:23 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=46 As part of the ALI’s laudable goal of promoting input by the membership on future projects, this morning’s meeting focused on projects that are coming to a close, current projects, and future projects that are being explored. The two projects that will come to an end at this annual meeting are Torts and Trusts (Restatement 3d). Currently active projects are Liability Insurance Law, Government Ethics, Election Law, and American Law of International Commercial Arbitration. These projects will provide the material for ALI annual meetings in the next five years. Concerning the project selection process, the ALI’s challenge is to locate topics where the Institute can have influence and to secure the right reporters. Lance Liebman then turned to identify projects that are currently being explored: 1. More work on Torts: Other Torts subjects (professional malpractice, damages, etc.) 2. Criminal Law: Addressing issues that the Model Penal Code did not take up or did so imperfectly, e.g., sex crimes, fraud as a criminal subject 3. Contracts 4. Property: mortgages and mortgage foreclosures and possible changes to the UCC 5. Foreign Relations Law of the U.S. 6. Liberty/security/privacy interests 7. Indian Law 8. Family Law 9. Copyright/IP 10. International Financial Regulation The meeting was then opened up to the membership for comments and suggestions for future projects, which included the following: 1. Principles of the Law of Electronic Information: privacy, protection of information and use of digital information in criminal investigation; jury selection (what jurors can or cannot use), discovery in civil litigation. 2. Bankruptcy Ethics: ethical issues that are unique to bankruptcy. Notwithstanding that some of these issues are treated by statute, it was suggested that the ALI can provide guidance. 3. Family Law: An area that lends itself to common law where there is much state variation; many would benefit from a systemic overview. 4. Second Restatement of Foreign Relations Law: Restatement 3rd has had an important impact on development of the law, but much has changed since 1987 (end of Cold War, WTO, globalization and technology, Human Rights, dispute resolution, use of executive power). Professor Liebman observed that some of these topics are contentious where consensus will be tough to achieve. The challenge is: where to start? 5. A member inquired about the ALI’s use of technology in terms of project selection process, including adviser selection and reporter selection. Professor Liebman responded that the ALI gets more email now than ever and puts out notice to membership to solicit self-nominations. The Institute will do more of this. President Ramo has appointed a special committee on technology. 6. Environmental Law: Principles of public nuisance, natural resources law. 7. Intellectual Property: Issues including patents and trademark rights where there are enormous international and technology ramifications and much confusion. 8. Preemption: It was suggested that this project start with Tort Law where the first question in every case is preemption. While this is a contentious area, the bones of contention are limited to outcome, not principles. 9. International Law in the Family Law context: The ALI’s Principles of Transnational Civil Procedure focuses exclusively on international commercial transactions but does not address the international ramifications of Family Law issues including cross-border movement of families. 10. Principles that address statutory interpretation on the back end and legislative drafting on the front end 11. Principles of Judgment Collection 12. A member rose to support the proposal to re-visit the foreign relations law of the U.S. and to comment that, while some issues are contentious, other issues need to re-visited, e.g., immunities (where there has been much change since 1987 in the area of sovereign immunity), jurisdiction (extra-territoriality), act of state doctrine, exhaustion of remedies, state secrets doctrine. 13. A member commented on the process of project selection urging that the Institute distinguish between what the ALI does well and what it does poorly, observing that the ALI most is successful in its Restatements which are the product of a thoughtful and principled process and are addressed to a judicial audience that looks for guidance from objective, neutral body. Thus, issues such as preemption addressed to the Supreme Court are less likely to have a significant impact. In ordering project selection priorities, the member noted that draft statutes don’t get enacted while Restatements aimed at persuading courts as to the proper common law approach are more successful. In response, Professor Liebman observed that the impact of Restatements has been uneven while the ALI’s UCC project has been very successful. 14. Restatement of Law of Punitive Damages. 15. The intersection of technology and privacy issues: principles of privacy rights in the workplace (including lawyering and blogging). 16. Federal Criminal Code project: many legislatures are not positioned to draft a thoughtful product. 17. A member rose to support a project on Indian Law. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Glenn Koppel Tue, 17 May 2011 13:50:22 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=45 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog ALI Blogger Tue, 17 May 2011 13:14:18 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=44 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog ALI Blogger Tue, 17 May 2011 12:58:10 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=39 This morning 's session began with a presentation by Lord Phillips of Worth Matravers, President of the Supreme Court of the United Kingdom. When I was in college, I spent a summer session at Oxford studying British politics. I have followed with great interest the very significant changes that the last Labour Government made in the structure of the government of the United Kingdom. Lord Phillips ' presentation was the most succinct and complete discussion of the subject that I have heard or read. It was a great honor and pleasure to have Lord Phillips address us. The speed of ALI projects is at the other end of the spectrum from the speed with which the Labour Government changed the structure of the judiciary that brought about the Supreme Court of the United Kingdom. As a relatively new member, I have seen the end and middle stages of a few projects over the past few years, but this morning 's election law project discussion was the first at which I was at the beginning of creation. Given that the time was short, I did not make it to the microphones, but I spoke to Professor Foley, the reporter, after the session and he welcomed my sending him comments by email. Although I think that discussion among the membership as a group is very important, there are times when an email to a reporter can get across a point when time has run out on a session. It has been my experience that reporters welcome email comments and if you, like me, wanted to say something this morning but were unable to do so, send an email. Guy Struve 's comments following the presentation to him of the well-earned Wisdom award brought home to me something that I have come to realize after attending several MCG and Annual Meetings. There is a learning curve to participation in the ALI and you (hopefully) get better with practice. The day finished with a Boskey motion on the Torts project. When I think back to the life preserver that the Restatement Second of Torts was to me when I was a first-year law student, it definitely was "cool," to use Guy Struve 's word, to be among the members who voted to send the last part of the Restatement Third of Torts, Liability for Physical and Emotional Harm to print. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Mark Stichel Mon, 16 May 2011 21:30:05 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=27 Graceful humility, keen intellect, unfaltering loyalty, warm collegiality, professional accomplishment, and sincere deep respect for the members and process of the American Law Institute. Those things, and much more, characterize the many years of role model exemplary service and commitment to the ALI by Mike Traynor and Guy Struve. How rare it is that such qualities receive the recognition and appreciation of the Institute in the form of an award. The clear sense in the Westin St. Francis Grand Ballroom this afternoon was the unanimous agreement of all present with the determination by the Awards Committee, Executive Committee, and the Council that there are no prospective honorees more deserving of the Institute 's Distinguished Service Award and the John Minor Wisdom Award than Mike and Guy. To pick up on a central theme of Mr. Struve 's appreciative acceptance comments: cool. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Dick Reeve Mon, 16 May 2011 19:20:09 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=26 Two truly extraordinary members of the American Law Institute were honored this afternoon. Guy Miller Struve, a partner in Davis Polk’s Litigation Department for more than 40 years, was honored with the Institute’s John Minor Wisdom Award. By way of background, the Wisdom Award was established by the Institute’s Executive Committee to honor the late emeritus ALI Council member John Minor Wisdom, former Senior Judge of the U.S. Court of Appeals for the Fifth Circuit, who died in 1999. The Award was endowed in 1990 by Judge Wisdom’s law clerks in celebration of his 85th birthday. It is given from time to time in specific recognition of a member’s contributions to the Institute’s work. Mr. Struve has demonstrated a truly outstanding commitment to the American Law Institute through his close involvement in countless Institute projects. He has been an ALI member for more than 37 years. As someone who has attended annual meetings for just over a decade, I have come to look forward to Mr. Struve’s thoughtful, measured contributions to floor discussions, demonstrating not only wisdom but also a deep and abiding commitment and affection for the law at its best. Michael Traynor was honored with the Institute’s Distinguished Service Award and a standing ovation. The Distinguished Service Award is given from time to time to a member who over many years has played a major role in the Institute as an institution, accepting significant burdens as an officer or committee chair. Mr. Traynor, who retired from Cooley Godward Kronish LLP in 2008 after serving as a partner for more than 35 years, has served as Chair of the Institute’s Council since 2008, having served as its President from 2002 to 2008. Introducing Mr. Traynor was Gerhard Casper, Professor of Law, Emeritus and President Emeritus of Stanford University, who spoke movingly of Mr. Traynor’s courage and vision in moving the Institute forward during his presidency, encouraging the Institute to take on issues that sometimes seemed too difficult and too controversial, and taking particular care to assure that all voices on an issue were given an opportunity to speak. In accepting the award with his customary graciousness, Mr. Traynor exhorted the membership to continue the tradition of reasoned, articulate, and respectful debate. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Kristen D. Adams Mon, 16 May 2011 18:10:05 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=25 This morning we were treated to a thought-provoking address by Lord Phillips of Worth Matravers, the inaugural Lord Chief Justice of Britain 's newly-established Supreme Court. The story of the historic replacement of the Law Lords with a Supreme Court raises the larger question of the structural requirements for judicial independence. For instance, how important is it to judicial independence that the courts be perceived by the public to be independent? Because Parliament is supreme under Britain 's unwritten constitution, the lines between the administrative, legislative and judicial functions of government are blurred. Formerly, the Lord Chancellor performed executive, legislative and judicial roles merged into one office. The Law Lords, sitting in the House of Lords, performed judicial and legislative functions. Under that traditional arrangement, their judicial power, in Lord Phillips ' words, was more real than apparent. Avoiding the hurdles of our constitutional amendment process, Tony Blair abolished the Lord Chancellor’s office and the Law Lords, replacing them with the Supreme Court. The Lord Chancellor was stripped of his judicial functions. The Law Lords thereby morphed into the first justices of the Supreme Court. Two things stand out about the way in which this historic reform was achieved. I was struck by how easy it is to make a fundamental structural change in the British system of government. The absence of separation of powers under the unwritten constitution enabled the Government of the Day to achieve at the stroke of a Parliamentary pen the separation of the judiciary function from the legislative and administrative. Because of the principle of Parliamentary supremacy, the Prime Minister, as head of the majority party in Parliament, unilaterally changed the century 's-old structure of government. It is also noteworthy that the country that provided the foundation for our common law tradition has, to some extent, taken a leaf from our book in re-structuring its legal system. Lord Phillips touched upon the importance of the public 's perception of judicial independence as well as the reality of independence: that appearance matches reality. The public needs to know who in government is ultimately accountable for shaping the law. He reminded us that the appearance of our own Supreme Court 's independence from Congress was reinforced by moving the Court out of its humble digs in the Capitol and into its own home. One is left to reflect on how independent Britain 's new Supreme Court, or any Supreme Court, will be in practice. Lord Phillips noted that the Supreme Court will not be “supreme.” Parliament is still supreme in Britain 's constitutional constellation; there is, therefore, no such thing as “unconstitutional” laws a la Marbury v. Madison (except for the charter of the European Union, from which Parliament can withdraw.) And how independent from political influence will Britain 's Supreme Court - indeed, any Supreme Court, including our own - be? Recent confirmation battles over U.S. Supreme Court appointments remind us that even a judicial branch that is structurally distinct from the executive and the legislature is not far removed from the shifting political winds. It seems that the independence of any country 's judiciary cannot be divorced from the larger constitutional system in which it is embedded. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Glenn Koppel Mon, 16 May 2011 16:30:06 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=24 The discussion of the election law project is emphasizing questions about whether it will be possible to do the project in a manner that transcends politics. The plan is to try to start with two issues that may be resolvable in advance, before people know how the election would be affected. So the ALI is taking up the question of how to count ballots, as an example of a problem that can be resolved in advance. And the project is also taking up the question of how to manage novel voting methods, such as early voting. I hope the project developers are right and the ALI will be able to help with these issues above the political thicket and that the strategy of taking up these selected issues works as a model. In welcoming us, Roberta Ramo said that many new members come from government and public service. A nice follow up on this theme is that the project will take into account the counting of overseas military ballots. There was no response to the suggestion of considering the qualification of felons to vote. This is just one of the many issues of access that are not included in the project as currently conceived, but that could be addressed later if the first efforts succeed. Good luck to the project--a fitting complement to the first session 's ringing endorsement of the importance of law to justice. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Leslie Francis Mon, 16 May 2011 15:50:06 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=23 Roberta Cooper Ramo opened the meeting by sounding the theme of the importance of law reform domestically and internationally. We were then treated to addresses by Lord Phillips of Worth Matravers, first president of the new UK Supreme Court and Stephen Zack, current president of the ABA. Lord Phillips had travelled from the opening of the new supreme court in Bhutan. Bhutan, he observed, is managing a peaceful transition to democracy, unlike the United States. In the US, separation of powers was part of that rebellion. Today in the UK there are three arms of government, each with powers delegated from the monarchy and in a sense exercising power at the pleasure of the monarch, although the monarch 's powers are largely illusory. The UK supreme court is the final step in the achievement of separation of powers in the UK, Lord Phillips said. When Lord Phillips became a law lord, he found somewhat unusual quarters, with space for only four clerks in a garret in Westminster. Technically law lords were not judges and issued their decisions as part of the proceedings of lords. Woolsack and all. They were full members of the House of Lords but by convention did not act as such--except when one law lord wanted to vote in favor of house hunting. We also heard from Lord Phillips how Blair 's changes were "muddled" -- it took six years even to find a building. But establishment of the court is the final step in creating the separation of powers in the UK. Before the transition to a Supreme Court, the law lords weren 't perceived at all by the public. It is critical that they not only are independent but are seen to be so. Unlike in the US, all proceedings are filmed. Still, parliament remains supreme in the UK and could undo any decision. Parliament has chosen to forego supremacy with respect to the EU but could undo that too. In response to a question about strained resources for courts asked by Chief Justice Durham of Utah, Lord Phillips said that they were suffering from cost cutting, too. Courts in Britain now are overwhelmed by immigration cases also. The second speaker of the morning session was Stephen Zack, ABA president. He gave a ringing endorsement of the importance of equal justice under law -- a promise to all Americans, in jeopardy today. There is a justice gap where 80% of poor people have no access to justice and Legal Services Corporation is disastrously underfunded. 11 states spend less than 1% of their budgets on the entire system of justice. All civil jury trials are suspended in NH for a year. There 's a need for courtroom closures in the California budget. Legislators see courts as getting in the way. The rule of law is different from rule by law. Zack closed with an anecdote about his grandfather leaving Cuba. Although his grandfather was terribly sad about losing everything, he was heartened by the thought that he would never be a refugee again because if the US falls there would be no place to go. Two speakers from different perspectives, both agreeing on the importance of the courts in the rule of law. Now the ALI is innovating and we are listening to a discussion of the new election law project. This is doubly innovative, both in sharing the project ahead of time and in the project itself. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Leslie Francis Mon, 16 May 2011 15:20:07 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=22 The Institute invited Reporter Edward Foley and Panelists Doug Chapin, Trevor Potter and Kevin Hamilton to provide a preview of the new Principles of Election Law Project, describing some of the project’s goals and also giving an overview of some of the challenges the project is seeking to address, including issues raised by early voting and “no fault” absentee voting. These are part of the project’s focus on “non-precinct voting,” which is one of two major topics within the project’s scope at this time. The other major topic to be addressed is the principles, rules, and procedures for recounts and other means of dispute resolution after ballots have been cast and counted. The initiation of this project was approved by the Council in October 2010, so the project is less than one year old. Normally, a project appears on the Annual Meeting agenda only when a draft is available for discussion or vote, or when a major project motion is to be considered. Thus, this kind of overview discussion is something new. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Kristen D. Adams Mon, 16 May 2011 15:10:06 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=21 At 10:00 this morning, the 88th annual meeting of the American Law Institute opened with remarks from Lord Phillips, the President of the Supreme Court of the United Kingdom, and Stephen Zack, President of the American Bar Association. Lord Phillips reported that the Institute is well-regarded in the United Kingdom, where no similar organization is currently in existence, and shared some interesting comparisons between the Supreme Courts of the United States, the United Kingdom, and Bhutan. Mr. Zack 's remarks challenged the assembled group to think carefully about the promise of "equal justice under law" and provided several examples of how the American justice system is currently under significant attack: legal services attorneys who can answer only one of every two phone calls, courts that are asking LEXIS and Westlaw to donate pens, and other courts in which litigants are expected to supply their own paper. He reminded the group that many outside the legal profession do not understand why an independent judiciary is so important and reminded all who were present of our duty as attorneys to educate the public on this important matter. He closed with moving remarks regarding his last day in Cuba as his family 's business had been seized, recalling his grandfather 's statement that, if the United States should (also) fall, there would be no place to go. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Kristen D. Adams Mon, 16 May 2011 14:30:07 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=20 Each of the three previous Annual Meetings that I attended were at Mayflower in Washington, D.C., the site of most ALI Annual Meetings since the 1920s. I was wondering what effect the change of venue to San Francisco for this year's Annual Meeting would have on the event. Well, I cannot answer that question yet. But, as I sit here waiting for the opening session to begin, I see many familiar faces. Mr. Boskey is here. So, the Annual Meeting can begin. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Mark Stichel Mon, 16 May 2011 13:10:02 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=19 Last night I attended the New Members ' Dinner that was hosted by Andrea Bjorklund and Michael Brown. Andrea and Michael did a great job of welcoming the new members and providing an excellent meal. I was invited to the dinner because Robin Fretwell Wilson and I hosted last year 's New Members ' Dinner in Washington. Andrea and Michael made brief remarks about what the new members could expect over the next three days at the Annual Meeting. Here are a few of my thoughts on the subject for both new members and not-so-new members who may be attending the Annual Meeting for the first time. If you liked law school, you will have a great time at the Annual Meeting. If you hated law school, skip the business meetings and just go to the luncheons and evening events. It should come as no surprise that the Annual Meeting resembles law school. Many of the people at the front of the room are law professors and the members are seated at tables in a configuration that looks a lot like many law school classrooms (albeit without the raised rows). Like a law school day from a student 's perspective, a day at the Annual Meeting can and usually does include sessions on several unrelated legal topics; you do not spend your day focused on a much more narrow range of subjects as many of us do when we are not at an ALI meeting. I find it stimulating to be engaged in the wide variety of topics that are discussed during the three days of the Annual Meeting. I would encourage members to attend not only the sessions where the discussion is about a topic with which they are familiar, but to attend the sessions on topics that at first glance are far removed from their usual comfort zone. Just as in law school, you will get a lot more out of the Annual Meeting sessions if you have done the reading in advance. But, unlike law school, you do not have to worry about being called to speak if you are unprepared. Like law school, the ALI has its "gunners." Although unlike law school, the ALI gunners usually know about what they are speaking. If you have a tendency to be a gunner, I do not have to encourage you to speak at the meeting. But, sometimes in law school, a person whose voice never was heard would be called upon and make comments that were as perceptive, if not more so, than those who spoke frequently. If you have a tendency to be that person, do not hesitate to step up to the microphone. The value of the ALI 's work comes from the combined contributions of all of its members. I have enjoyed the three previous Annual Meetings that I have attended and look forward to this year 's meeting. There are interesting guests on the program and I expect some lively discussions. I look forward to spending time with people I have meet at previous meetings and meet new people, too. If you have any comments on this post or any future ones that I will make during the course of the Annual Meeting, introduce yourself and let me know your thoughts. Thanks for reading. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Mark Stichel Mon, 16 May 2011 12:10:02 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=18 Lance Liebman, Director of the American Law Institute, opened the MCG meeting on the Principles of Government Ethics, with Professor Richard Briffault following close behind by giving the range of some of the specific topics which may be covered by this project. He noted that the prior Washington session of the advisers/consultative group had stressed the need for general principles being covered first, prior to moving to the specific areas. Kathleen Clark, associate reporter, also offered some thoughts. Many comments were offered to the reporters on how best to proceed and some items that might be included in this project, such as: the complexity of the law, the need to keep legislation simple enough and accessible for individuals to understand, and the need to consider the revolving door area. Several individuals talked about whether this project should include judicial lobbying. Professor Mark Tushnet raised the important issue of what is the role of the ALI with respect to constitutional issues. Lance Liebman stated that his goal of this project is to influence state law. He hoped that the ALI could recommend balanced solutions from which states could borrow. Director Liebman noted how few ALI “principles” projects there were in the past history of the ALI, and how many more exist now. http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog Ellen S. Podgor Sun, 15 May 2011 18:20:00 http://www.ali.org/index.cfm?fuseaction=meetings.annual_blog&blogid=17