Charles Alan Wright

The 1999 Annual Meeting is behind us and, as I said in my letter of June 11th to the members, it was unusually successful in terms of what we accomplished. I had predicted that we would not have time to burn, but that we should be less constrained by the clock than we had been in some recent years. That proved to be the case. When we adjourned on Thursday — eight minutes before the appointed time — we had done everything that we hoped to do when we set the agenda.

We completed work on Restatement Third of Torts: Apportionment of Liability and on Revised Article 2 (Sales) of the Uniform Commercial Code. On each of those projects there was a significant push to defer final action, and indeed on Article 2 there was an extended discussion at the end of the day on a motion to postpone approval for another year. That motion was defeated so decisively on a voice vote that no division was needed. We also gave final approval to Revised Article 2A (Leases) and to the unit of the Federal Judicial Code project dealing with removal of cases from state to federal courts. And we made useful progress on other projects that were on the agenda.

One interesting parliamentary point arose during the meeting. Twice — once when I was presiding and once when Second Vice President Conrad Harper was presiding — after a voice vote had been taken and the result announced, there was a call from a member for a division. In each instance the chair refused the request for a division. Mr. Harper and I did this even though we know that a single member can demand a division. We were acting on the rule set out in Robert’s Rules of Order Newly Revised 277-278 (9th ed. 1990): “dilatory use: When it is clear that there has been a full vote and there can be no reasonable doubt as to which side is in the majority, a call for a Division is dilatory, and the chair should not allow the individual member’s right of demanding a Division to be abused to the annoyance of the assembly.”

If there is any doubt at all in my mind after a voice vote about which side prevailed I say “The chair is in doubt” and I call either for a show of hands or for a count by tellers. If I am not in doubt, but feel that members may question a somewhat close result, I say “The ayes seem to have it” and I pause. If any member then calls for a division, I put the matter to a division, either by show of hands or by a rising vote. If the house is silent after I say “The ayes seem to have it,” I then announce: “The ayes have it.” It is only when there is no reasonable doubt about the voice vote that I immediately say “The ayes have it.” In those circumstances a request for a division is dilatory and I will not grant it.

Although it was a fine Annual Meeting, there were two small clouds in the bright San Francisco sky. One was the disappointing attendance. The registration was 638. Our average registration in the years 1985-1999 has been 987. The attendance is always lower when we leave Washington. We had 843 in San Francisco in 1991 and only 757 in Chicago in 1995. We know that in Washington there are many “phantom registrations,” as one of our officers calls them. These are people who register and who may come to the Officers’ Reception or to the Annual Dinner, but are rarely if ever seen in the Ballroom during a working session. For the last six years we have increasingly detailed figures on the number of persons present in the meeting room at various times during the four days. Those numbers, both for 1995 in Chicago and 1999 in San Francisco, are roughly equal to the numbers at corresponding times in Washington meetings. And I was particularly glad that a respectable number of members were still in the room during the final session Thursday afternoon. Even so, I am surprised that the number of registrants was as low as it was this year. I have asked the staff to analyze our attendance records to see to what extent a meeting on the West Coast attracts members from that part of the country who ordinarily do not come to a Washington meeting.

We had what must be the largest representation we have ever had of people from other countries. We had four from Australia, three from Canada, three from Mexico, two from England, two from Italy, and one each from Bermuda, Hong Kong, Japan, Netherlands, New Zealand, and Switzerland. That is 20 people from 11 different countries. And that count does not include the Chair of Council, Roswell B. Perkins. Rod has been in Moscow for several years heading his firm’s office there and we rejoiced that he and his wife made the long trip to San Francisco for the meeting.

Over the years we have always been liberal in inviting guests to an Annual Meeting. We invite Advisers who are not Institute members and we invite anyone that a member suggests be a guest. My letter inviting these persons to attend the Annual Meeting as a guest says: “Under the Rules of the Council, guests may not vote on questions that come before the Meeting, but you do have the privilege of the floor (identifying yourself as a guest if you speak).” At the meeting many guests did speak, particularly on Article 2 and in our discussion of the Uniform Computer Information Transactions Act (the successor to what had been UCC Article 2B). This has led to criticism on two grounds. First, on several occasions guests used up a significant portion of the time and the chair had to cut off debate while there were still members who would like to have been heard. Second — and in my view even more important — some of these guests identified themselves as an officer of or a lawyer for some interested group and stated the views of that group. Members are bound by Council Rule 9.04, which says in part: “To maintain the Institute’s reputation for thoughtful, disinterested analysis of legal issues, members are expected to leave client interests at the door. Members should speak and vote on the basis of their personal and professional convictions and experience without regard to client interests or self-interest. It is improper under Institute principles for a member to represent a client in Institute proceedings.” If we are bound by that — and I certainly hope and believe that our members understand that obligation — can it be right to give the floor to guests who are unabashedly speaking on behalf of client interests?

Several of you spoke to me about this while we were in San Francisco and I since have had letters from thoughtful members who are concerned about these questions. I have instituted an exchange of correspondence among the Officers and intend to put this matter before Council when it next meets in December. I would welcome comments that any members have.

More important than anything we did on any substantive project at the Annual Meeting was the turning point this marked for ALI. When I tapped the gavel on Thursday afternoon to adjourn the Annual Meeting it marked the end of Geoffrey Hazard’s 15 years as Director of The Institute. Throughout the four days speakers praised him for all that he has done. I set out in detail in the Spring issue the high esteem in which I hold Geoff and so I will not repeat that here. His speech at the Annual Dinner, which you all will have a chance to read before the end of the year, is a perceptive analysis of the relevance of The American Law Institute. Before Geoff spoke, Conrad Harper gave him a gift from his Council colleagues. It is a book, The Impartial Lawyer, published in London in 1709. A partial description of the contents is set forth in this abstract from the title page: “Wherein is Demonstrated, what Remedy the Lawyers * * * may have, against such as would defame or defraud them in their lawful Practice [and] such Relief as others may have against them, for their unjust or irregular Proceedings.” It sounds as if it may have been a prequel to our Restatement of the Law Governing Lawyers.

The sound of the gavel on that Thursday afternoon marked Geoff’s accession to Director Emeritus and, I am happy to say, to membership on Council. But it also marked the beginning of Lance Liebman’s tenure as only the fifth Director ALI has ever had. In The Institute stunning résumés are the rule rather than the exception. But even in that context Lance’s career is mindboggling: President of the Harvard Law Review; clerk to Justice White; Professor at the Harvard Law School; Dean of the Columbia Law School; Fellow of the Yale Corporation; member of the Board of Directors of the Practising Law Institute; coauthor of four books.

Lance entered the Harvard Law School in the fall of 1964. I was a visiting professor there that year. I taught a section of the first-year course in Civil Procedure, but Lance was not in my section. I did not get to know him until the spring of 1998 when we were searching for a Director for ALI. From the day he was chosen Director Designate he has thrown himself wholeheartedly into our work. He has attended meetings of Council, Advisers, and Members Consultative Groups. He has met frequently with the members of our staff, with our Treasurer, Bennett Boskey, with the Reporters on our projects, and with many others. He has been a member of The Institute since 1977 and was a Contributor to the Reporters’ Study on Enterprise Responsibility for Personal Injury, published in 1991. The Institute was not terra incognita to him, but he has immersed himself in depth in every aspect of what we do.

As the years go by Lance undoubtedly will put his own stamp on our work and the way we do it. The Hazard years were different from the Wechsler years. Similarly the Liebman years will be different from the Hazard years. But with the wisdom and experience of both Geoffrey Hazard and Herbert Wechsler available to us as members of Council and with the enthusiasm and the fresh viewpoint of Lance Liebman guiding us as Director, I look forward to an exciting and productive future for ALI.

Charles Alan Wright

President