The American Law Institute 88th Annual Meeting, May 16-18, 2011. San Francisco

Annual Meeting Blog   

Our Annual Meeting blog, written by members, provides descriptions of the sessions and events, photos, and commentary on the Meeting. More information about our bloggers

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Fare-Thee-Well San Francisco and A Few Behind the Scene Ratiocinations

Posted By: Dick Reeve | May 19, 2011 | 08:20 PM
In the final day of this year's ALI Annual Meeting I learned from the address (see earlier-posted blogs for details) of ALI Young Scholars Medal winner Professor Bar-Gill about how irrational I have been for years in my decisions regarding cell phones and cell phone plans. As anxieties increased over those irrational decisions I decided right then and there to change plans and carriers. But, naturally, in the Grand Ballroom there was no cell signal.

So as a healthy distraction from this towering cell-centered-distress it was time to visit with the ALI staff who travelled to SFO to make the Annual Meeting happen so beautifully. A week before the meeting ALI staff filled and shipped out to SFO ~100 boxes, containing almost 240,000 pages of written materials, for the benefit of the approximately five hundred ALI member-registrants and twenty-one guests. While fourteen professional ALI support staff made the journey to San Francisco for the meeting, two stayed behind in Philadelphia to hold down the fort there. Most flew to SFO last Saturday on the same airplane (helping US Airways stay in business) while others came out Sunday morning. Upon arrival at the hotel two local area computer networks had to be set up for the ALI.

From the first official event of this year's Annual Meeting, the Principles of Government Ethics MCG on Sunday afternoon, through the last event, the Executive Committee meeting last evening and today, the ALI staff's unending professional deportment did indeed make it a seamless event. Although they stayed at the host site Westin St. Francis, their 10-16 hours workdays left them tired but still cheerful, with little if any time to see and enjoy the sights of SFO. When asked what they enjoyed most about the city, people watching (non-ALI members, that is), sea lions by Fisherman 's Wharf, and food were at the top of the list.

And how does a group of fourteen professional staffers keep a crowd of five hundred lawyers happy over a five day period?[sorry, no punch line coming] Ever self-effacing, the staff said it is the members of ALI who make their jobs easy via mutual respect, humor, and courtesy. As President Ramo noted yesterday, we are quite fortunate to have these good souls with us as part of the Institute.

Along the way of those four days about 100 gallons of hot coffee and an almost equal amount of hot water for tea was provided in the hall outside the Grand Ballroom; 1067 special event meals were consumed; and a bit over 1000 hours of CLE credit were claimed. But, then, those metrics are of little significance here other than noting little caffeine was wasted.

When asked what the high point was of this year's meeting the unanimous response by staff was seeing Mike Traynor and Guy Struve receiving awards and then listening to Mike and Guy in their acceptance speeches. One could not help but notice the smiling ALI staffers come into the Grand Ballroom during the awards presentation. Their chosen make-up at that moment was in the color of readily apparent genuine joy.

So, what's next? For the staff, in a couple of months they're back to the often invisible planning and organizing for the 2012 ALI Annual Meeting in Washington D.C. For me, probably more cellular-based irrationality. Need more bandwidth. Some nudging or soft paternalism could help. Alternatively, semaphore might suffice.

Final Thougts

Posted By: Mark Stichel | May 19, 2011 | 02:50 PM
The ALI Annual Meeting is unlike some other conferences (such as a federal
judicial conference that I attend and will remain nameless) where the "work"
part of the conference is short and there is lots of time for recreation.
There is no golf or tennis at the ALI. Given that there was little free
time during the last two days of the conference, I did not have a chance to
update my blog. Here are some thoughts about the last two days of the
conference.

I am a member of the Members Consultative Groups for the Employment Law and
Nonprofit Organizations projects. Although I enjoy and learn from the
discussions of all of the projects discussed at the Annual Meeting, I
definitely am more engaged and informed during the discussions of the
projects for which I am an MCG member. I would encourage members to join
MCGs. It is much easier to have input into a project 's work before it is
presented at an Annual Meeting. Even if you cannot attend MCG meetings, you
will receive all of the drafts for the project and have the opportunity to
comment. In March, there was remote access to the MCG meeting for the Insurance Law project and I expect that there will be further developments on the
technology access front.

Speaking of technology, this is the third year in which I have blogged from
the Annual Meeting. Each of us who blogs has a different style. I have
heard from several members about my blog and those of others. But, in our
current format, there is no ability for people to "like" what I say or
comment in that way that one can on Facebook or other social media. Again,
I expect that there will be some developments coming in this area. But, in
the meantime, I would like to know your thoughts or comments about the blog.
Did you enjoy it? Did you object to or disagree with something that I have
said? Is there something that you would like to hear next year? If you
have anything to say, please email me: hmstichel@ghsllp.com. Put ALI Blog
in the subject line so that I will not delete your message as spam before I
read it as I sometimes do when I receive emails from unfamiliar sources.

Although being a member of a MCG can increase your understanding of and
involvement in a project, my comments above should not discourage members
from attending parts of the Annual Meeting in which they have no prior
involvement or that are outside of their usual areas of expertise. One of
the valuable things about the Annual Meeting is that often the reporters and
those most closely involved in the project benefit from comments of members
whose expertise is in other areas and can add comments about how the project
at hand impacts or can benefit from the jurisprudence of another area of the
law. The last section of the last discussion at the Annual Meeting, the
attorneys ' fee provision of the Nonprofit Organizations draft, is an
example. There are attorneys ' fee provisions in various areas of the law.
Not all of them have the same standards or methods of calculation. The
discussion benefitted from the perspectives of the members who spoke.

Although the ALI Annual Meeting is a working meeting with little time for
play, that does not mean that the members do not get in some play before or
after the Annual Meeting. The San Francisco venue for this year 's meeting
gave many of us from the East Coast and elsewhere to enjoy Northern
California. As Roberta Ramo noted in her introduction of Lord Phillips on
Monday morning, the President of the Supreme Court of the United Kingdom
swam in the ocean the day before the meeting. David Gossett, one of our
members from Washington, D.C., ran in the Bay to Breakers 12K foot race on
the same day. (David said that he did not want to make his debut in the ALI
blog by my identifying him as the guy who has commuted to Annual Meetings in
DC by bicycle, carrying his helmet with him into the meeting. But as a
sometime fellow bicycle commuter, I could not resist.) Nancy Shearer of the
ALI staff is returning to Philadelphia via Amtrak, taking three historic
routes, the Coast Starlight, the Empire Builder and the Cardinal. I took
the Empire Builder and the Cardinal on a cross-country trip in 1984 and have
wanted to cross the United States again by train. I will have to think
about that for the next time that the ALI comes to San Francisco. Roberta
Ramo quipped, tongue in cheek, during the Nonprofit Organizations project
discussion that she was happy that the Annual Meeting was ending a few
minutes early because there was a shoe sale nearby. She did not say where
the sale was, but the concentration of world-class retailing within two
blocks of the Annual Meeting site is amazing. I did take the opportunity of
the early ending to visit several emporiums. I was tempted by several
things, but kept my credit card firmly planted in my wallet. Finally, I am
spending the rest of the week in Northern California. Last night, I picked
up a rental car and drove south. This morning, I watched the AMGEN Tour of
California bike race on the first climb of the day. I now am sitting in an
internet café in Salinas and will be visiting the Steinbeck National Center
in a few minutes. Then, I will head north and meet a friend for two days of
bike riding in the Sierras and around Lake Tahoe.

I enjoyed the Annual Meeting and blogging about it. Thank you for reading.
See you next year in Washington, D.C.

Annual Dinner

Posted By: ALI Blogger | May 19, 2011 | 09:03 AM

The ALI’s 88th Annual Meeting Draws to a Close

Posted By: Kristen D. Adams | May 18, 2011 | 06:50 PM
Closing out three eventful days of ALI proceedings in San Francisco, the membership granted approval to the third Tentative Draft of the Principles of the Law of Nonprofit Organizations (up to Section 660), and President Ramo pronounced the meeting adjourned at 3:40. I believe she mentioned a shoe sale somewhere in Union Square . . .

I know I speak for many ALI members in echoing President Ramo’s thanks to the Institute’s wonderful staff in putting together another great meeting. Although I can only imagine how much time you invested in making a San Francisco meeting run as seamlessly as a D.C. meeting, you made it look easy. See you next year, and thank you.

Is Constitutional Law, After All, Law?

Posted By: Kristen D. Adams | May 18, 2011 | 06:00 PM
Addressing the Institute’s Membership Luncheon on Wednesday afternoon, renowned litigator and former Stanford Law School Dean Kathleen M. Sullivan explored the question of whether Constitutional law is actually law. As President Ramo noted in introducing Sullivan, she was not only the first woman to be named Dean of Stanford Law School, but also the first woman to lead any of Stanford’s various schools. In her remarks, Professor Sullivan explored three potential possibilities: first, that Constitutional law is not law, but instead politics; second, that the subject is not law, but rather an exercise in equity; and third, that Constitutional law is, after all, law.

In rejecting the first possibility – that Constitutional law is nothing but the naked exercise of political will and power - Sullivan noted as an initial matter that this is the viewpoint most commonly espoused by the popular press. She pointed out, however, that conventional conceptions of liberality and conservatism have been turned “topsy turvy” from time to time, especially in cases involving free speech and federalism, thus tending to prove that Constitutional law is not just politics. In making this point, Professor Sullivan cited several cases in which ostensibly left-leaning Justices have taken a “conservative” approach and ostensibly right-leaning Justices have taken a “liberal” approach.

In exploring the second possibility – that Constitutional law is not law at all, but instead an exercise in equity – Professor Sullivan began by noting that there are indeed identifiable, fundamental values that underlie Constitutional jurisprudence. Freedom of speech, for example, can be said to serve the cause of liberty, on the one hand, or equality, on the other. And of course, identifying the value to be served does, from time to time, help to guide the Court’s decision. Likewise, underlying many federalism cases are differing views regarding the value of civil litigation. One view would tend to favor national power, national markets, and the expertise of federal administrative agencies over the piecemeal decision-making process of juries considering discrete cases. This view, of course, would militate in favor of a lesser role for civil litigation in elucidating public values. A competing view – which would support a more expansive role for civil litigation – is that juries are a quasi-democratic means of speaking truth to power and an essential source of public values.

Ultimately, Professor Sullivan advocated for the third possibility: Constitutional law is, after all, law. In elucidating this position, Sullivan posited that the existence of seeming inconsistencies in Constitutional jurisprudence actually helps to prove her point. She described the principles of freedom of speech and federalism as constant, transcendent, trans-substantive values, comparing them to a keel that provides correction and stability to a ship in rough waters. In driving the point home, she argued that Justices from time to time line up on one side of the issue in one free speech case, and on the other side in another case, precisely because the value of free speech is one that transcends the current political debate.

First ALI Young Scholars Medal Winners Honored

Posted By: Kristen D. Adams | May 18, 2011 | 02:30 PM
Professors Oren Bar-Gill and Jeanne C. Fromer, of New York University School of Law and Fordham University School of Law, respectively, were honored today with the ALI’s first-ever Young Scholars Medals. Professor Bar-Gill addressed the group today, and Professor Fromer will speak next year at the annual meeting in Washington, DC.

The Young Scholars Medal honors outstanding young scholars whose academic work has demonstrated the potential to influence improvements in the law in a profound and practical way. The Institute received 71 nominations, and the Selection Committee carefully reviewed not only the nominations themselves, but also each candidate’s curriculum vitae, several articles per candidate, and additional materials. Professor Bar-Gill’s scholarship centers on consumer psychology, while Professor Fromer’s work explores the claiming systems of patent and copyright law. In addition to the medal itself and the opportunity to address the Institute at an annual meeting, each winner will receive $5,000 and the opportunity to plan a conference seeking to identify subjects that likely would benefit from law reform.

In his address today, Professor Bar-Gill spoke about consumer psychology, market failure, and what the law can do to help. In describing the problem of market failure, he noted how the phenomenon of present bias affects consumers’ behavior with respect to credit cards and their preference for “free” cell phones requiring a long-term contract, as well as how the complexity of modern mortgages may affect consumer default levels, especially among those consumers with low levels of numerical sophistication. In suggesting how the law may help, Professor Bar-Gill advocated for “soft paternalism,” or “nudging,” as opposed to “hard paternalism.” Examples of soft paternalism may include what Professor Bar-Gill termed “simple disclosures targeting consumers” or “complete disclosures targeting intermediaries.” Another example would be providing a “safe harbor” for certain “plain vanilla” qualified products such as simple mortgages, while permitting the more complex, more potentially problematic mortgages to be offered, albeit subject to heightened regulation.

Rare, Medium-Rare, or Something Else?

Posted By: Kristen D. Adams | May 18, 2011 | 01:30 PM
I wrote an earlier blog post about the continuing debate, which seems to come up in virtually every ALI project, regarding the extent to which the Institute’s work should track the existing law – or instead seek to change it. Today’s discussion of the Principles of the Law of Nonprofit Organizations raised another familiar discussion thread: What should be contained in the prominent black letter of an Institute product, and what should instead be relegated to the commentary? The particular topic being discussed was the use of the word “rare” within the context of Section 650 (a), “Actions on Behalf of the Charity; The Derivative Suit.” The specific context is this: “A suit on behalf of a charity to obtain a judgment against one or more current or former fiduciaries or other parties . . . may be maintained in those rare circumstances permitted by law (as set forth in this Section), and subject to the organizational documents and public-policy limitations relating to the autonomy of charities.”

Several speakers raised questions from the floor regarding this particular terminology, noting that it sounds a strong cautionary tone: “Judge, be careful! Are you sure you want to allow this suit to go forward?” Reporter Evelyn Brody provided some context for the decision to insert the word, noting that the Advisers and Members Consultative Group members had strongly encouraged her to make sure readers of the Principles would be on notice that these suits should not be permitted to go forward easily. Although some speakers urged the Reporter to consider moving the warning language to commentary, others found the language useful, especially for the purpose of educating judges who may not be particularly familiar with this area of law.

President Yudof Addresses Annual Meeting Dinner

Posted By: Kristen D. Adams | May 18, 2011 | 09:00 AM
Mark Yudof, the 19th president of the University of California, addressed the assembled crowd at the annual meeting dinner on Tuesday evening. President Yudof earned a standing ovation for his remarks on public universities and their role in the common good. President Yudof has recently celebrated his third anniversary as leader of the massive California state university system, including more than 180,000 faculty members, which he inherited with a one billion dollar deficit necessitating widespread furloughs (including of himself) and a 40% increase in tuition.

Noting as an initial matter that public universities have always been hybrid goods – rather than purely public or private goods – President Yudof then turned to describing some areas in which privatization has grown measurably in the United States over the last number of years: the post office, the military, law enforcement, and even our highways. He cautioned the group that public universities must not follow this trend, citing the example of Chief Justice Earl Warren, who ascended from a modest background to attend the University of California, Berkeley and Boalt Hall for his B.A. and LL.B, respectively, becoming Attorney General of California, Governor of California, and then Chief Justice of the United States Supreme Court. President Yudof reminded the group that Earl Warren, like so many young people of today (who, as he reminded the group, may be Ernesto or Elena rather than Earl), could not have paid the full cost of his own tuition in a privatized university system.

President Yudof closed by calling upon public universities to look at their operations through the lens of private sensibilities and efficiencies , state governments to rededicate themselves to supporting public universities’ core functions, and all of us to remember that public universities belong to all Americans.

Employment law session concludes

Posted By: Leslie Francis | May 17, 2011 | 08:20 PM
The employment law session is now drawing to a close. "The trouble was, the overwhelming majority of the cases that were brought to us seemed to talk about the employee as having a duty of loyalty. So we went ahead and put this in the Restatement of Agency. But we were not as careful then to say that the duty had many aspects, and that some of these might not fit. So here we are again . . . and it is not useful to talk about trying to abolish the use of the phrase 'the duty of loyalty '. It is much more useful to show why, in different contexts, it does not apply. That is what Sam has been doing." With these words came the Boskey motion to approve this tentative draft, made by Mr. Boskey himself. A proposed amendment followed: that one issue, extending the duty of loyalty beyond commercial contexts, be excluded from the motion. It was rejected as not a friendly amendment--and rejected by the membership as well. The Boskey motion then passed, to applause.

The ALI adjourned until this evening, when we will eat well and hear from President Yudof of the University of California. Some years ago, I heard President Yudof speak at the AALS, when he was leading the University of Minnesota (as I recall). His remarks then sounded what to me was a critically important theme about the role of public universities and public law schools: that moving towards the financing models of private law schools was a serious and unfortunate departure from their public missions. Students acquiring debt, as tuition costs rise, are less well positioned to go to work in public service occupations or to meet the legal needs of those who can pay less for legal services. These trends, it seems to me (as a faculty member at a public law school that tries its best) have only continued in the years since. In light of the resounding endorsement of access to justice in the opening session of this ALI meeting, I am looking forward very much to President Yudof 's remarks tonight.

Employment law

Posted By: Leslie Francis | May 17, 2011 | 07:50 PM
Another note for academics. In the judgment of the drafters of the Restatement (Third) of Employment Law, it would not violate the duty of loyalty for a faculty member at the University of Nebraska to attempt to convince a colleague to apply for the provost position at the University of Kansas. It might, however, violate the duty to attempt to convince the entire economics department at Nebraska to defect to Kansas . . .

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