Addressing the Annual Dinner in San Francisco on the evening before he retired as ALI Director, Geoffrey C. Hazard, Jr., Trustee Professor of Law at the University of Pennsylvania, reflected on the Institute’s role in addressing “fundamental social issues” and linked it to the historical right of popular assembly to “consult upon the common good.” Other speakers at the 76th Annual Meeting included the Honorable Bryan Beaumont, Justice of the Federal Court of Australia; Chief Judge Procter Hug, Jr., of the United States Court of Appeals for the Ninth Circuit; American Bar Association President Philip S. Anderson; Judge Stephen F. Williams of the United States Court of Appeals for the District of Columbia Circuit; and Robert M. Berdahl, Chancellor of the University of California at Berkeley.

At the luncheon on May 20, Justice Beaumont undertook to explain why the work of the Institute indeed matters beyond the borders of the United States. It is clear, he asserted, that for legal systems outside the United States, and particularly that of Australia, the Institute’s work, “particularly the Restatements, but also the Uniform Commercial Code,” are “not only essential points of comparative reference, but also potential forces of influence.” “It is equally clear,” he suggested, “that in our mutual interest there is a real need that this work be maintained and, to the extent that it is feasible … extended into other jurisdictions, not directly … but persuasively, as a possible source of an appropriate legal principle.” He went on to discuss the special relationship that the United States and Australia have long enjoyed, pointing out that Australia’s Constitution was modeled on that of the United States, that we are both common-law countries with similar legal fundamentals, that our courts have similar approaches to issues in judicial administration, that “common questions arise in the exercise of federal jurisdiction,” and that therefore “Australian lawyers are very concerned to know what this Institute is doing.”

During the last 20 years, Justice Beaumont observed, courts in Australia and New Zealand “have continued to refer to the Restatements … as a potential source of an appropriate legal principle, where there is no binding authority on the question.” “More recently,” he pointed out, “we have found up-to-date illumination in the ALI Reporter’s Notes and Comments in difficult and topical areas, especially where there appears to be no common-law authority or analogy on a contentious point.” He referred in particular to a recent conditional contract case in the Supreme Court of New South Wales, in which the court adopted the Torts Restatement’s position on causation and held the rescission ineffective. “For all foreign lawyers,” Justice Beaumont maintained, “whether of the common-law or civilian tradition, the Restatements meet the outsider’s need for clarity and simplification of American jurisprudence.” Indicating that there now are a number of areas where there is “a need for harmonious law revision,” including international commerce and some examples within Justice Beaumont’s own Asian Pacific Region (Indonesia’s restructuring of its bankruptcy laws, the “proper scope of customary law” in the Pacific Island nation states, and the harmonization of court rules), he concluded that “law-reform agencies can assist here, especially those with a record of progressive, pragmatic reform, and the capacity and stamina to handle the essential detail, all of which the ALI has.”

Opening the Annual Meeting on May 17, Chief Judge Hug welcomed the Institute to San Francisco and praised it for its “great contributions to reformation of the law and to raising the standards of the legal profession.” Observing that the federal appellate caseload in the last 15 years has increased 65 percent with no comparable increase in judges, he stated that this is a matter that should concern the Institute because, as an inevitable result of the ensuing case overload, “the time a judge has to devote to each case in order to render a fair decision and a quality opinion is reduced.”

Asserting that his own Ninth Circuit has been successful in adding the number of judges needed to “handle the caseload with the deliberation that is due each case,” Chief Judge Hug deplored the proposals of some Senators that the circuit be split. He pointed out that the current Commission on Structural Alternatives for the Federal Courts of Appeals had recently agreed that the Ninth Circuit should remain intact but had also recommended that it be divided into “three autonomous regional divisions, with each division having a separate en banc court.” Chief Judge Hug maintained that the major defect with this divisional approach is that panel decisions and en banc decisions of one division would not constitute binding precedent in the other two divisions. He concluded that the Commission’s prime stated objective of assuring consistent law within each circuit would be “seriously abrogated by this proposal.”

Also speaking at the opening session, ABA President Philip S. Anderson, a member of the Institute’s Council, reported on the results of the ABA’s recent national conference in Washington on public trust and confidence in our system of justice. He stated that a national survey prepared for the conference had revealed that, despite the fact 80 percent of the persons surveyed believed that we have “the finest justice system in the world,” 47 percent nevertheless believed that the system is racially biased while a large minority also believed that people are treated differently because of their gender. Pointing out that the ABA already has “a battery of programs” designed to rid our justice system of racial and gender bias, he described the national strategy developed at the conference to attack these problems. The recommendations of various racial and gender fairness task forces established in several circuits and a number of the states will be implemented, he promised, and this will result both in better-educated judges and lawyers and a more knowledgeable public. Maintaining that the public is presently “woefully unaware” of what judges do, he urged that education in our justice system begin in elementary school and continue through high school, and that adults be instructed by “all means available,” including the Internet and television. Decrying the “generation of neglect of public education” that has taken us to this point, Mr. Anderson concluded that in a few years “we will begin to see the result of programs designed to teach the public that judges protect our freedom and enforce our rights and that an independent judiciary is essential to a free society.”

Speaking as the representative of the new class of life members honored at the luncheon on May 18, Judge Williams set forth the views that “growth of the law has a tendency to shrink the rule of law,” and that “the more law, in the sense of the more issues purportedly to be resolved by political institutions, the greater the risk to true accountability and, in that sense, to the rule of law.” He then set out to demonstrate how the recent settlement by major tobacco companies of the 50 States’ claims to reimbursement for increased Medicare expenses alleged to result from smoking illustrated the validity of these insights. As a result of this settlement, Judge Williams explained, tobacco companies will pay the States about $250 billion over the next 25 years and private counsel for the States about half a billion a year. Noting that the agreement resulted in the companies raising their prices, he described the settlement as “the equivalent of an excise tax on cigarettes” and “one that will fall overwhelmingly on consumers.” He asserted that the “key legislative event” as to how this “tax” came about was a 1994 Florida statute “that stripped defendants of their defenses in any suit brought by the state Medicaid agency for reimbursement of medical expenses that were caused by their conduct as third parties.” Both the judicial and legislative branches of our political system thus “joined to produce the quasi tax on tobacco,” he declared, the courts setting the stage “by general hospitality to expansion of liability” and the legislature stepping into new territory “to expand liability still further, to create a tax but in a way that disguised its tax-like quality.” The tobacco settlement, he maintained, sidestepped the “standard feature of democratic accountability” that taxes cannot be imposed unless legislators run “the risk of voting publicly for a tax increase.” “The crowding of the political agenda in large part with centralized legal rules displacing exit rights,” that is, the rights of the parties to terminate their relationship, he said, “reduced whatever chance there may have been that the issue would receive concentrated, penetrating public analysis.”

While recognizing that the rule of law is still “far more robust” in the United States than in many other countries, Judge Williams concluded that even here “it cannot be expected to flourish forever if legal rules continue to metastasize” in the manner illustrated by the tobacco settlement.

At the luncheon on May 19, Chancellor Berdahl explored the significance of a protest at Berkeley during the last two weeks of April over the status and future of the University’s ethnic studies department, which involved “an eight-day hunger strike, an illegal encampment, more than 100 arrests, and considerable disruption….” At Berkeley, he remarked, “the contact sport is not football, but protest,” and this protest had “a strong note of nostalgia” in that it began by celebrating the 30th anniversary of the 1969 protest in which “the demands for what was called a ‘Third-World College’ were first voiced.” The 1999 protest, he maintained, was nevertheless not merely an exercise in nostalgia but reflected “some of the deeper currents of American life and changes in American higher education.” At its core, he explained, was “the question of access to Berkeley and the question of whom the University serves.” The protesters, he said, perceived that the University “was becoming increasingly exclusive,” and that “they were the ones being excluded.”

Chancellor Berdahl identified four factors that combined would enable one to comprehend “some of the fear and frustration about access to Berkeley” that fueled the protest: “the elimination of race-sensitive admissions, the rapid growth of minority populations, the disinvestment in public education and the concomitant growth of private education or the increasing privatization of public higher education.” More specifically, he indicated that, as a result of California’s enactment of Proposition 209, the number of Black, Chicano, and Latino students admitted to Berkeley has been reduced by more than half; statewide, there are more Hispanic students than whites, and Black and Hispanic students combined constitute a majority of the school-age population. He added that California, which was one of the top 10 States in per-pupil expenditures during the 1960s, had fallen to 43rd by 1997; presently only 34 percent of Berkeley’s total operating budget comes from the State of California, down from over 50 percent slightly more than a decade ago, and down from over 70 percent in the 1960s. Chancellor Berdahl thus concluded that we need to consider seriously “the consequences of the decline of investment in things ‘owned’ by the public, above all education,” as well as “how our public policies appear to those who have historically been excluded from access to this ever more essential means of social mobility.”

The complete texts of the talks delivered at the 1999 Annual Meeting will appear in the Proceedings, as well as in a separate volume of Remarks and Addresses that will be available later this year.