Every institution has its royalty. For U.S learned societies, this super-select group is composed of a very small number of people, perhaps a handful at any given time, who are widely admired as intellectual leaders and who contribute their wisdom and judgment to significantly enhance the quality of the institution’s work. For The American Law Institute, which I served as Director between 2014 and 2023, Judge Pierre Leval is royalty.
Judge Leval was elected to ALI membership in 1975, the year he stepped down as a Clearly Gottlieb partner to become the First Assistant District Attorney for Manhattan. Nine years later, he was elected to the ALI Council, which is the organization’s governing board. He has served on the Council for more than 40 years, 26 as an elected member and the past 16 as a very active emeritus member.
Judge Leval was recommended for election to the ALI Council by Judge Henry Friendly, for whom he had clerked, as you all know. In a letter to Judge William Webster, then serving as Director of the FBI (and, in his spare time, as chair of the ALI’s Nominating Committee), Judge Friendly showered Judge Leval with praise. And, most impressively, he added that “Pierre … was among the best law clerks that I have ever had, right alongside Mike Boudin." Judge Garland read this portion of the letter when he presented the Henry J. Friendly Medal to Judge Webster. Judge Garland, also a former law clerk to Judge Friendly, noted that he was making an admission against interest: “When I read the letter,” he said, “I was sorely tempted to deep six it.” He added that this endorsement of Judge Leval “forces every self-respecting Friendly clerk to ask the age-old question … ‘So what am I, chopped liver?’”
In 2013, Judge Leval (together with Judge Boudin) received the Henry J. Friendly medal himself. This award, which is the ALI’s highest, is super-selective. In fact, the first thing that the ALI website says about the award, before telling us what the award recognizes, is “that it is not awarded on an annual basis.” And that is definitely true. In fact, the award is so selective that most years nobody gets it. Once we get past the stress on the award’s selectivity, we learn something quite intimidating: the Friendly Medal “recognizes contributions to the law in the tradition of Judge Friendly and the Institute.” Its recipients, in addition to Judge Leval, include two other Friendly law clerks, Judge Garland and Chief Justice Roberts (recall what Judge Garland said about self-respecting Friendly law clerks), and other legal legends, including Herbert Wechsler and Paul Freund.
Chief Justice Roberts, in presenting the award, noted that Judge Leval embodies Judge Friendly’s “uncompromising rigor and integrity in following the law wherever it may lead.” The Chief Justice immediately stressed why this was such a high compliment: “No one has been remotely like Judge Friendly since he passed and no one will be like him again in our profession.”
All this is hugely impressive. But, as they say, the proof is in the pudding. I saw the pudding up close during my nine years as the ALI Director. Right at the beginning of my tenure, the ALI launched the Restatement of Copyright Law. At the time of the launch there were questions about whether the ALI should do a project of this sort, given that there was a comprehensive federal statute in the area. But the statute had many open-ended terms, like fair use, which left a great deal of room for judicial discretion. And, broad judicial discretion provides the ideal environment for the ALI to do its work of clarifying and simplifying the law.
Judge Leval knows a great deal about copyright law. In 1990, he published in the Harvard Law Review an important article titled “Toward a Fair Use Standard.” It was based in part on his considerable judicial experience with fair use cases. As Judge Leval noted in the first sentence of the article, “[r]andom distribution has dealt me a generous share of copyright suits involving claims of fair use.” His article was so influential that, only four years later, the Supreme Court heavily relied on his framework in a landmark decision. And, if you ask Google Gemini’s large language model which federal appellate judge is most knowledgeable about fair use, the answer you will receive is Pierre Leval.
As the ALI began having early discussions about whether to launch the Restatement of Copyright Law, some members raised the question about whether judges would find this Restatement useful. They suggested that perhaps this might not be the case and therefore that the Restatement should not get off the ground. Exuding his characteristic modesty, Judge Leval answered: “This judge would find it useful.” It was a conversation stopper. Who would take the contrary position after this clear, definitive statement from a judge who had disproportionate experience with these types of cases and who had written an article in a key area of copyright law that has significantly influenced the Supreme Court? And this was all before the era of Gemini!
So, the objections were left to one side and the work got underway. Judge Leval then rolled up his sleeves and, over the 10 years it took to complete the project, commented on draft after draft, provision after provision. He always treated the competing arguments fairly and suggested elegant language that moved the discussion forward. In each of his numerous interventions, he modeled what it means to clarify and simplify the law. My colleague Professor Chris Sprigman, the Restatement’s Reporter, asked me to tell you the following. I quote from Chris’ note:
Given his prominence in the copyright field, it should be no surprise that Pierre was deeply involved throughout the decade of the Copyright Restatement’s drafting and approval process. The Reporters had many conversations with Pierre on matters of substance, and we benefited greatly from his expertise. But even more, we benefited from his warm encouragement. At more than one tough point in the process, a short note from Pierre urging us to keep our chins up and push forward was exactly what we needed to renew our optimism. For this, and for the opportunity this project gave us to spend time in Pierre’s delightful company, we are ever grateful.
I can think of only one other Council member during my time as ALI Director who had as much substantive influence on a project as Judge Leval had on the Restatement of Copyright Law. And all this happened after Judge Leval had already received the Friendly Medal, so he definitely did not rest on his ALI laurels.
I want to end by saying that a real joy of meetings of the Restatement of Copyright Law was sitting at the dinner following the discussions with Pierre and Susana, who like me, was born in Buenos Aires, and with whom I share a deep interest in Latin America. If in addition to the Friendly Medal, the ALI also had the “Gem of a Person Medal,” Pierre (and also Susana) would surely get it. And they would get this medal even if it was not awarded every year.
I hope you now understand why I said at the outset that Pierre is American Law Institute royalty. So, happy birthday, Your Royal Highness, Lord Leval of the Upper West Side!