Heavy Agenda Planned
for 2001 Annual Meeting

The Institute’s 78th Annual Meeting on May 14-17 will consider no fewer than five Restatement drafts— on Torts, Restitution, Agency, Property, and Trusts — as well as what is expected to be the final submission of the Federal Judicial Code Revision Project and a new Discussion Draft of the project now entitled Principles and Rules of Transnational Civil Procedure. The extent of the agenda that will be devoted to the Uniform Commercial Code has not yet been definitely determined. A decision is expected by the end of March as to whether ongoing efforts to formulate a viable scope provision for Revised Article 2 (Sales) have been successful enough to justify sending Article 2 to the floor this year for final approval. If Article 2 is ready for submission, Proposed Final Drafts of Revised Article 2A (Leases) and 1 (General Provisions) will be submitted for final consideration as well, and it will be necessary to have dual sessions and 8:00 a.m. starting times on two of the meeting’s four days. See the tentative Annual Meeting schedule on page 6.

Restatement Third, Torts: General Principles, has now been subtitled "Liability for Physical Harm (Basic Principles)" in order to describe more accurately the actual scope of the project. Its first Tentative Draft will consist of a revised version of the Discussion Draft submitted to the 1999 Annual Meeting, which dealt with intent, recklessness, and negligence, and it will also include new material on strict liability that will be submitted for the first time. Another Discussion Draft, presented last year as the initial offering of Restatement Third, Restitution and Unjust Enrichment, will also be converted this year into its project’s first Tentative Draft, and the membership will be asked to give tentative approval to a revised version of Chapter 2, Transfers Subject to Avoidance. Approval will not be sought for Chapter 1, General Principles, until later in the project when the chapter will be reformulated and reconsidered in the light of the Institute’s treatment of the specific applications of these principles. Review of last year’s Tentative Draft No. 1 of Restatement Third, Agency, consisting of the introductory chapters of that project, was not completed last year for lack of time. This year’s Tentative Draft No. 2 will therefore both recycle for further consideration those chapters, extensively revised in light of the discussion at the 2000 Annual Meeting, and invite initial consideration of additional chapters on what is required to create or terminate an agent’s authority and on what constitutes ratification by the principal of an agent’s previously unauthorized acts.

Final approval of the current drafts of Restatement Third, Property (Wills and Other Donative Transfers), and Restatement Third, Trusts, will clear the way for publication of new official volumes containing significant portions of both Restatements. Tentative Draft No. 3 of Donative Transfers deals with nonprobate transfers and various protective doctrines that can result in the invalidation of an otherwise effective transfer. If approved this year, the draft will be combined with a revised version of Tentative Draft No. 1, which was previously approved in 1995 and which set forth principles of construction for donative documents, to make up the second official volume of the Donative Transfers Restatement. Tentative Draft No. 3 of Trusts includes a difficult and important new section on what constitutes appropriate "charitable purposes," as well as extensive material elucidating the requirements for modifying or terminating a trust. Approval of this draft will allow the Institute to bring out in final form the entire substantive portion of Trusts Third, leaving only the portion on trust administration to be completed.

Tentative Draft No. 4 of the Federal Judicial Code Revision Project contains proposals for revising the portions of the code that deal with Venue and Transfer. If approved, they will be published in final form together with the final versions of previously approved proposals on supplemental jurisdiction and removal. Discussion Draft No. 2 of the Institute’s other current project on civil procedure, now known as Principles and Rules of Transnational Civil Procedure, will be the first to reflect the involvement as cosponsor of the project of UNIDROIT, the International Institute for the Unification of Private Law, which is based in Rome. At the recommendation of UNIDROIT, the project is now attempting to articulate the broader principles underlying its proposed rules for transnational proceedings, as well as setting forth the specific rules intended to implement them, and these principles will appear for the first time in the current draft. The project is now attracting widespread international interest and attention. Planned for the coming year, in addition to the Annual Meeting discussion and further review by a joint ALI/UNIDROIT Working Group in Rome, are initial meetings to consider the project in China and South America. After further revision, the project is expected to return to the Institute for final approval at a subsequent Annual Meeting.

The most difficult and controversial problem confronting the drafters of Revised Article 2 of the UCC has been that of determining and defining the extent to which computer programs associated with goods, particularly those contained in so-called "smart goods," should be subject to the provisions of Article 2, an issue as to which the membership at last year’s Annual Meeting adopted a sense-of-the-house resolution expressing the need for greater clarification. In order both to help resolve this and other outstanding issues concerning Article 2 as well as to assist the Director and Council in deciding whether the revised Article is ready for final submission, the Institute has convened a special online discussion forum consisting of the Members Consultative Group and others with a particular interest in the project, and the resulting electronic interchanges have been both vigorous and informative. Ultimately, a special ad hoc committee of the Council will make a recommendation as to what the status of the draft should be at this year’s Annual Meeting. The status of both Revised Articles 1 and 2A will in turn depend on that of Revised Article 2.

At its December meeting in New York the Council heard reports on two other projects that will not come to the Annual Meeting this year. A project to revise the Payment Articles of the UCC (Articles 3, 4, and 4A) was to have moved on a fast and noncontroversial track limited essentially to "repatriating" the Federal Reserve Board’s Regulation CC to state law at the request of the Board. As a result of second thoughts by the Board about Regulation CC, however, the project is no longer on a fast track, but it now appears that there are other aspects of the Payment Articles that will need revision. These issues will be addressed at a more deliberate speed and may come to the membership at a subsequent Annual Meeting.

There will also be a change of direction for the Institute’s project on International Jurisdiction and Judgments. Because of lack of current progress on the proposed Hague Convention on Jurisdiction and Foreign Judgments and the Convention’s questionable future prospects, the Council authorized the Reporters, Professor Andreas F. Lowenfeld and Linda J. Silberman of New York University, to shift from their original plan of drafting proposed federal legislation that would implement the provisions of the Convention to their alternative plan of devising a federal statute that would provide uniform standards for enforcing foreign judgments in the United States. A first draft of at least a portion of such a statute is expected to be ready for Institute review next year.