The ALI and the Pandemic
This Director’s Letter was originally published in the summer 2021 edition of The ALI Reporter.
The last 18 months have transformed the United States (and the rest of the world) in ways that were unimaginable in early 2020. A virulent pandemic has claimed more than 600,000 lives in our country alone. At the same time, we suffered major economic dislocations, saw the cruel consequences of racial inequality, witnessed the significant challenges faced by our democratic institutions, and experienced unprecedented fires and other pernicious consequences of climate change. Many of us have experienced the ravages of the pandemic in intensely personal ways, through the loss of family members, friends, and colleagues, and worried about the future of our nation. Now, in the second half of 2021, is a good time to take stock of the impact of this tumultuous time on the ALI and its work.
Sadly, the pandemic did not spare ALI members. For example, last August, we mourned the passing of Judge Stephen F. Williams, of the United States Court of Appeals for the D.C. Circuit, the COVID-19 victim to whom I felt closest. I vividly remember my conversation with Steve on our way to 30th Street Station in Philadelphia after a meeting of the Restatement of Property, on which he served admirably as an Adviser. We had to say good-bye to catch our respective trains before we could finish the conversation and agreed to continue it the next time we got together, at an ALI meeting or elsewhere. I am very sad that we will now not be able to do that. He was an extraordinary leader of the legal profession!
The ravages of the pandemic, however, did not adversely affect the progress on our projects. While we had to cancel our March 2020 in-person project meetings for our Advisers and Members Consultative Groups because there was insufficient time to make alternative arrangements, we rescheduled them all as virtual meetings for dates a few months later. And, in addition, we had a full complement of project meetings during the 2020–21 academic year. These meetings were extremely productive. On average, they had significantly higher attendance by our Members Consultative Groups than our traditional in-person meetings. The discussions were uniformly constructive and the Reporters got a full complement of useful feedback.
We had significant trepidation in the run-up to the 2021 Annual Meeting, which took place online during two days in May and two days in June, because the logistical issues are so much more complicated than for regular project meetings as a result of the far larger participation, and of motions and votes. And while I cannot say that we got through the Annual Meeting with no technical glitches, it was the case that we had high-quality discussions and that we got a great deal of work done. Most importantly, we obtained the final membership approval for five projects: Restatement of the Law of American Indians, Restatement Third of Torts: Intentional Torts to Persons, Model Penal Code: Sexual Assault and Related Offenses, Principles of Compliance and Enforcement for Organizations, and Principles for a Data Economy. Completing five projects at a single Annual Meeting was an unprecedented accomplishment for The American Law Institute. And, by doing so, we ensured that the cancellation of the 2020 Annual Meeting did not slow down the approval of our work.
Now that we might have turned a significant corner on the pandemic, I very much look forward to the resumption of our in-person meetings. I have really missed the personal interactions that are simply not possible on a virtual medium. And I also believe that one of the reasons that last year was so successful was that over the years we had built up significant capital as a result of our personal interactions. But if this capital is not replenished, our effectiveness as an institution is likely to suffer over the long term.
My enthusiasm for a return to personal meetings definitely does not mean that we should go back to doing our work in precisely the same ways in which we did it before the pandemic, even if that were possible. As an institution, we learned some significant lessons from the pandemic. And while we are still debriefing on the full extent of likely changes, a consensus has developed on some of them.
For example, traditionally we waited until the Annual Meeting to do the orientation for our new members. As a result, some new members had to wait until almost a year after their election to benefit from this event. And new members who were unable to attend the first Annual Meeting after their election had to wait at least another year. This year, we had a virtual orientation within just a few weeks of each election cycle. New members who cannot attend the orientation for their cohort, can join one just a few months later. As a result, new members are likely to become involved in our projects, for example by joining Members Consultative Groups, a great deal more quickly than had traditionally been the case. We will thus continue this practice in the future, though we will still have a celebratory in-person event for new members at the Annual Meeting.
Similarly, having virtual meetings provided more flexibility to the Council. Traditionally, the Council meets for two days in October in New York, for another two days in January in Philadelphia, and for an hour in May in Washington, D.C., right before the beginning of the Annual Meeting. This past year, the October and January meetings took place virtually. But we decided to add an additional three-hour meeting in late February to facilitate the Council’s approval of projects that were poised to get the final approval at the Annual Meeting. In past years, if the Council raised substantive issues in January for projects potentially headed for membership approval in May, there was no easy solution. We could put the approval of a whole project off a year, which was not a good outcome if the issues raised, though substantive, were relatively minor. Or the Council could try to deal with the matter at its one-hour meeting in May. But that time is necessarily constrained and the discussion would be rushed. Going forward, the Council plans to return to its in-person meetings in October and January, but will keep a virtual February meeting as a safety valve to facilitate the approval of projects at upcoming Annual Meetings.
As with the main Council meetings, we plan to continue having in-person Annual Meetings. Over the long run, we do not think we can sustain the vibrancy and civility of our institution without building strong personal relationships among our members. And computer platforms, regardless of how well they served us during the pandemic, cannot accomplish that goal. Moreover, the logistical complexity of running a hybrid meeting are too daunting. As a result, going forward, as in the past, members will be able to fully participate in meetings, voting and making motions and comments only if they participate in person. But we are considering the possibility of streaming our Annual Meetings so that members can follow the discussion, particularly for projects in which they have been involved, even if they cannot be there in person.
Most importantly for the long term, the pandemic and the economic, racial, democratic, and environmental issues that were a central focus during the past year should—and are likely to—help define the content of at least some of the projects that we will launch in the coming years. So many law-related vexing matters could benefit from the thoughtful, deliberate, and inclusive approach that the ALI brings to each of its projects. I very much look forward to the discussions that will take place over the coming year with the Projects Committee, which recommends new projects to the Council for approval.
Thanks to our members who participated vigorously at project meetings and at the Annual Meeting, and to our extraordinary staff who adapted to the changed circumstances in a truly admirable way, The American Law Institute was able to accomplish a great deal during the pandemic. And we also learned some important lessons that will strengthen us going forward.
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