The President’s Letter

For this issue of the Reporter, it is my great pleasure to turn over the space that is normally occupied by my President’s Letter to ALI Director Lance Liebman for his enlightening comments on how new Institute projects are developed, how Reporters and Advisers are chosen, and how important the Members Consultative Groups are to the drafting and the ultimate success of our work. The Director’s role in selecting projects, Reporters, and Advisers is critical, as the Director, in a very real sense, determines the law-reform program of the Institute for years to come. Lance fulfills this role superbly. By the same token, the Members Consultative Groups play a critical role in the Institute’s work by giving the Reporters access to a broader spectrum of experience and opinion than they might otherwise receive during the drafting process. I encourage all members who have not yet joined one or more MCGs to do so; you will benefit from the experience, and our Reporters and the Institute will benefit from your good counsel.

Michael Traynor
President

The Director’s Role

The job of ALI Director includes many tasks. With Deputy Director Elena Cappella’s help from Philadelphia, the entire organization must run: scheduling meetings, getting drafts on time, moving projects from idea to prospectus to Adviser and Members Consultative meetings, then to the Council, then to the Annual Meeting. Humans are doing all these things: from our full-time Philadelphia staff, to the part-time Director and the part-time professors who are the Reporters on our projects, to all the Advisers and members who criticize and improve the Reporters’ work. As a former law school dean, I know that getting humans to do great work on a deadline is a challenge, especially when one has limited hierarchical authority over them. Nowadays, ALI is also an international organization, holding meetings on different continents and cooperating with foreign institutions. And we also have institutional tasks that are somewhat removed from authoring law-reform language: recruiting and electing new members, raising funds, renting the half of our building that we and ALI-ABA do not occupy, getting out our various publications, licensing some of them to other publishers, and choosing hotels, menus, and wines.

Nonetheless, the Director’s central task is the law-reform agenda that has been the Institute’s extraordinary contribution since 1923. I am the fifth Director in 83 years, and like each of my predecessors I am tasked to find appropriate new projects, select Reporters willing to undertake those projects, identify a group of Advisers to help each Reporter, and persuade committed Institute members to participate enthusiastically in the projects. The Council’s Program Committee helps by suggesting project ideas and by vetting proposals before they go to the Council. New projects, new Reporters, and lists of Advisers are approved by the Council or, between Council meetings, by the Executive Committee. But it is unusual in our history for a Director’s recommendation on any of these matters to be rejected. The Council and Executive Committee assume that the Director has based a recommendation on extensive consultation, within and without the ALI, and can quickly see that recommended Adviser lists include diverse individuals who will approach the work from a variety of backgrounds and perspectives.

The key criteria for contemporary ALI work are relevance, need, competency, balance, and diversity. We are currently doing standard ALI Restatement work: wills, trusts, restitution, employment law, and two torts projects. We are attempting to state Principles for challenging areas of non-Restatement law: criminal sentencing, the law of nonprofits, software contracts, and aggregate litigation. We are committed to international efforts: intellectual property judgments, the law of world trade, and expanding our insolvency principles. We are in the exploratory stage about privacy in the context of security and are always thinking about possibilities in tax and in improvements to the Uniform Commercial Code. Listed this way, our agenda covers a stunning range of intellectually challenging subjects. And what we think of doing next must be of equal importance and must fit in the palette. I constantly receive new suggestions, ask knowledgeable people for their ideas, and solicit suggestions whenever I communicate with ALI members.

When we hear a good idea, we must then find one or more Reporters. There are definitely excellent projects for which neither Geoff Hazard nor I could identify the right Reporter or persuade someone identified that this would be a great way for that person to spend the next decade. Many excellent law professors either have a full calendar or do not see ALI work as right for them. But I have enjoyed immensely working with the Reporters bequeathed by Geoff and with the new ones I have recruited since 1999. Hiring Reporters is exactly the same as recruiting faculty or hiring in government or in law firms: one does elaborate check-outs, meets and discusses with the possible candidate, and then guesses. Unlike law schools or law firms, we don’t give tenure or make partners, so a relationship that does not work out can have a mutually happy termination.

When a project is approved, we appoint Advisers. In the early ALI decades, the Advisers were a clubby inner circle. They were almost all white males. Also, they came from a few law schools, a few cities, a few law firms, and a few courts. Now we must reflect a country of 300 million people and one million lawyers, and sometimes we must reflect the world outside the U.S. The ALI, which once had 1000 members, now has almost 4000. Many are qualified to be Advisers. Elena and I work for weeks to pick a list of Advisers that we can defend. We get advice from the ALI’s officers and Council members, and especially from the Reporter, who usually knows important people in the field. But we also get names from ALI members who write in, and from phone calls we place to state and federal judges we know who suggest other judges who would be good for a project. We also look in our records to identify possible Advisers based on the interests expressed in new-member applications. In some projects there are relatively organized "positions"—plaintiff and defendant in torts, employer and employee in employment law—and we must be careful to have a degree of that type of diversity in our group. We also want age, geographic, gender, and race diversity; a mix among lawyers, academics, and judges; and some generalists to go with the specialists. The tentative list grows, gets cut, gets new names, gets cut again, and finally is ready to be reviewed by officers and Council members and then be tweaked. We spend serious time on this, and there is no way not to. In almost every project, this group will meet for one or more days annually for five to 10 years. We need them to get along with each other. The selection is a vital part of the ALI’s process for proposing legal reforms.

One thing softens the pressure of selecting Advisers. For over a decade, the Institute has had Members Consultative Groups. These groups are now an important part of our process. They allow every Institute member to choose one or more projects in which to become a serious participant. MCG members receive the drafts when Advisers do and can send comments and criticisms. They are usually invited to a meeting on the day before or the day after the Adviser meeting. Although ALI does not pay their expenses, we have funds set aside to assist members who need financial help to get to the meeting. Members who join an MCG can fully engage in working year in and year out with the Reporter, learning about the area of law, and offering their views. When I became Director, I thought attending back-to-back Adviser and MCG meetings would be like teaching two sections of Property in the same semester. It isn’t. Almost always, the Adviser and MCG meetings focus on different sections of the draft and different issues. The Reporter gets the full benefit of suggestions from both groups, and the advice rarely conflicts or even overlaps. Reporters, who have worked hard to author a draft, are happy to receive guidance at two sessions from two well-informed groups. MCG meetings are in no sense second-class or of lesser influence as a project goes forward. And these participants select themselves, require no research by Elena and me, and impose no anxiety on us. The MCGs were a great invention.

Somehow, these messy and imperfect procedures have given us about the right amount of material for an Annual Meeting every May and have kept our pipeline full (slightly over-full right now) and our output of true quality. But I confess I regularly worry about whether we will find the right next project and the right next Reporters. I don’t worry about Advisers or MCG members, because we have a surplus of high-quality legal talent willing to do volunteer work for us. As always, your suggestions about what we should do next will be most welcome.

Lance Liebman
Director

In this issue, ALI Director Lance Liebman discusses project development, the selection of Reporters and Advisers, and the importance of the Members Consultative Groups in advancing the Institute’s work.