Two Important New Projects
This Director's Letter was originally published in the winter 2022 edition of The ALI Reporter.
This is an exciting time at The American Law Institute. At its October meeting, the ALI Council voted to launch two new projects: Restatement of the Law, Constitutional Torts and Principles of the Law, High-Volume Civil Adjudication.
The Restatement of Constitutional Torts will examine the law of individual rights to sue government employees and others “acting under color of state law” under 42 U.S.C. § 1983. It will also cover Bivens actions and restrictions on § 1983 actions imposed by the Prison Litigation Reform Act and the overlapping law of federal habeas corpus. The project will be led by Reporters John C. Jeffries, Jr., of University of Virginia School of Law and Pamela S. Karlan of Stanford Law School. John and Pam are two of the co-authors of Civil Rights Actions: Enforcing the Constitution, now in its fifth edition, which is arguably the most complete treatment available of constitutional tort actions under 42 U.S.C. § 1983 and Bivens.
The Principles of High-Volume Civil Adjudication will address a serious challenge facing state courts: the adjudication of highvolume, high-stakes, low-dollar-value civil claims. These types of claims, which arise in such areas as debt collection, evictions, home foreclosure, and child support, comprise a significant proportion of state-court cases and are shaping the lives of millions of Americans, particularly women and people of color. The project will be led by Reporter David Freeman Engstrom of Stanford Law School, a far-ranging scholar of the design and implementation of litigation and regulatory regimes whose work focuses on access to justice in these types of cases. David also co-directs the Deborah L. Rhode Center on the Legal Profession, one of the leading academic centers working to shape the future of legal services and access to the legal system.
You can read more complete biographies for both projects’ Reporters on page 5 of this edition of The ALI Reporter.
One of my goals when I accepted the role of ALI Director almost nine years ago was to recruit the leading academics in the country to serve as Reporters on our projects. The announcement of these three terrific Reporters is a testament to The American Law Institute’s central role in our legal system; the respect that the academy, the judiciary, and others have for our work; our rigorous yet collegial process; and the ALI’s members who dedicate their time, knowledge, and expertise to our projects. Typically, when I approach a potential Reporter to serve on one of our projects, which may consume many years of their time, I am met with enthusiasm to take on this role. I am grateful to Pam, David, and John for agreeing to lead these projects.
It is also exciting to note that these projects reflect the continued diversification of the scope of the ALI’s projects. I am thankful to the ALI Council and Projects Committee for continuing to seek ways in which the ALI can provide guidance on some of the most vexing problems facing our nation.
The new Restatement and Principles projects are now published on the ALI website’s Projects page. Members interested in participating on the Constitutional Torts project should visit the site and join the Members Consultative Group (MCG). The scope of the High-Volume Civil Adjudication project is currently being considered; ALI members will be notified when the project’s MCG opens.
During the course of the October Council meeting, the Projects Committee also made the recommendation to work with a small group of experts to determine the topics that might be included in a future Principles project in the area of elections, focusing on safeguarding democracy. Areas in this project could include voting mechanics, timing of vote counting, discretion of local officials to deal with emergencies, and procedures relating to mailin ballots.
The first step in this process will be a conference to discuss the project’s scope. The conference will be led by Samuel Issacharoff, who, in addition to currently serving as ALI Projects Committee Chair, is a leading scholar in civil procedure and the law of democracy, and previously served as the lead Reporter for Principles of the Law, Aggregate Litigation.
We are also exploring the ways in which we might follow up on the success of the Electoral Count Act (ECA) Reform working group. That working group, a bipartisan group of experts, convened with the help of the ALI, issued a set of recommendations that have been instrumental in drafting legislation currently pending before Congress. The group was assembled and completed its work within three months, and its recommendations were a product of the group members, not the ALI. This model allows for recommendations to be assembled quickly, when there is a pressing need for guidance. ALI President David Levi and I are now exploring the formation of a new working group with Bob Bauer (cochair of the ECA Reform team; Distinguished Scholar in Residence, Co-Director of the Legislative and Regulatory Process Clinic, and professor at NYU Law; and former White House Counsel to President Obama) and Ben Ginsberg (Volker Distinguished Visiting Fellow at the Hoover Institution, and counsel to four of the last six Republican presidential nominees). This group would build upon and expand on other ongoing efforts to identify professional ethical standards that individuals administering the electoral process, like state secretaries of state and county clerks, should observe in the performance of their responsibilities. It will likely address areas such as public transparency, engagement with the community, and nonpartisanship.
In just weeks, the ALI will begin its 100th Anniversary year. It is remarkable for any institution to reach this milestone, but perhaps even more remarkable to stay as active, relevant, and vibrant as the Institute has remained. As we enter the second century, I am excited to try to envision what the ALI might accomplish in the next 100 years.