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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Loyalty by Any Other Name?

Posted By: Kristen D. Adams | May 17, 2011 | 07:30 PM
Some of the most spirited debate during today’s discussion of the Restatement (Third) of Employment Law surrounded the concept of “loyalty” as found in section 8.01, entitled “The Employee Duty of Loyalty.” Opponents of this terminology argued, among other things, that the phrase doesn’t truly capture what is required of an employee – suggesting that “mandatory obligation” is a more accurate descriptor. Proponents, by contrast (including the Reporters) noted that, as Comment ‘a’ states, this is “the phrase that courts use to capture those core employee obligations that derive from their agency relationship with the employer.” This terminology is also found in the Restatement (Third) of Agency.

As other bloggers have noted during this meeting, this is one of the important recurring debates in the American Law Institute: Should an Institute project – and especially a Restatement project – seek to mirror existing law and existing terminology or seek to influence the direction of the law and, as part of that effort, seek to change the vocabulary we use to describe that law? Stay tuned as the conversation continues.

Duty of loyalty

Posted By: Leslie Francis | May 17, 2011 | 07:10 PM
Is the "duty of loyalty" an outmoded idea, despite its use by the courts and by the ALI in the recent Restatement of Agency? If the contribution of the ALI is to be found in accurate, clear statements of what the law is, perhaps the ALI should refer to the "mandatory obligations of employees" rather than using a phrase that suggests the employer/employee relationship really is a mutual one. Or so a commentator suggests. The effort of the drafters is to limit this "duty of loyalty" and the reporters' notes try to do this, members were told. But concerns remain that this language will be interpreted too broadly, especially in the context of labor activity or whistleblowing.

Session on Employment Law

Posted By: Leslie Francis | May 17, 2011 | 06:30 PM
The session on employment law is now in full swing. We've just shifted from discussing the section on other torts affecting the formation, continuation, or termination of the employment relationship to discussing employee obligations and restrictive covenants. Most of the comments concerning the torts section were clarificatory but there is an underlying theme of how much the ALI should criticize legal trends that are less protective of employees who are harmed by employers who lie about reasons for termination.

Now, the discussion is turning to employee rights in intellectual property created during the employment relationship. Several commentators are concerned that the draft is constructed to apply to patents rather than to copyrights, trade secrets, or confidential business secrets. The draft creates a presumption that an employee hired to do "inventive" work is presumed to assign patents to the employer. Otherwise, the employee has the right to patent ideas generated on the job. The explanation is that the ALI is attempting to track the case law as it exists but this will be given further study. Academics take note: what the ALI says here may raise questions about whether they hold their own copyrights (as generally assumed by many academics), or whether their employers hold copyrights (should what faculty publish be sufficiently valuable for their employers to care).

California's Chief Justice Addresses Life Members and 50-Year Members at Luncheon

Posted By: Kristen D. Adams | May 17, 2011 | 06:10 PM
The Honorable Tani Cantil-Sakauye, Chief Justice of the California Supreme Court, addressed the Institute's annual luncheon honoring new life members (that is, 25-year members) and 50-year members. The Chief Justice, who assumed her current leadership role 5 months ago but has been a member of the judiciary for more than twenty years, chose as her topic the current state of the California judiciary. As the Chief Justice noted, the California state court system is the largest in the nation, encompassing more than 500 locations and serving one of the most diverse populations in the world.

She addressed the challenges of providing equal justice under the law for everyone in the state, especially during an era of needing to do "more with less." Even during this difficult time, the Chief Justice reported, the California judiciary is perhaps better equipped than ever to weather the storms of adversity, due in large measure to more than 14 years of change and planning, during which time the judiciary was able to secure its funding and become the owner, manager, and operator of its own court properties, which total a staggering 19 million square feet.

Reflecting a passion for public access to justice, which she described as a guiding principle, the Chief Justice closed her inspiring remarks by reminding the assembled crowd that the judiciary stands on the front lines in difficult times and owes a duty to the public to provide a civil safety net.

"Marketing" the ALI 's "Product"

Posted By: Mark Stichel | May 17, 2011 | 05:00 PM
Although none of the presenters or commentators at this morning 's session
would have been crass enough to use the term marketing or refer to the
ALI 's work as a product, a recurring theme this morning was the use and
acceptance of the ALI 's work. The withdrawal of the 2003 Amendments to UCC Articles 2 and 2A was a stark reminder that not everything we do is accepted
as gospel. I was amused by Andrew Kull 's comment that if the ALI had been
able to see the future in 2000, perhaps it should have called the
restitution project the Restatement of Clawback and Unjust Enrichment. The
comments of Guy Struve and others about potential future projects and
advocacy of various positions in current projects, such as the Model Penal
Code Sentencing provisions vis-à-vis their acceptance by courts,
legislatures and others were food for thought.

Opening Session

Posted By: ALI Blogger | May 17, 2011 | 03:02 PM

Members Reception @ The Asian Art Museum

Posted By: ALI Blogger | May 17, 2011 | 02:55 PM

Council Reception and Dinner

Posted By: ALI Blogger | May 17, 2011 | 02:50 PM

The Institute Formally Withdraws the 2003 Amendments to Articles 2 and 2A.

Posted By: Kristen D. Adams | May 17, 2011 | 02:30 PM
In response to the fact that no state has adopted the 2003 amendments to UCC Articles 2 and 2A, the Institute voted today to withdraw the amendments formally. PEB Research Director Neil Cohen described this as “a motion to conform the text with reality.” Noting that this is one of the very few areas in which proposed revisions to the Uniform Commercial Code have not been successful, Cohen observed that “this was a project the world just wasn’t ready for.” He noted that this project has had a history fraught with difficulty, recalling the Article 2B and UCITA projects and the debates regarding whether the draft favored consumer interests too heavily. Speakers from the floor, in turn, applauded the Institute for its action, noted that the draft may not have been accepted as law but may nevertheless represent excellent policy that should not be forgotten entirely, and recalled some of the important goals the proposed amendments had sought to address.

The Sentencing Project

Posted By: Ellen S. Podgor | May 17, 2011 | 01:50 PM
The session opened with Reporter Kevin R. Reitz providing an overview of some of the major elements of this project and this latest draft. Key items mentioned were the removal of the parole board and using the sentencing judge as the major player in review, disapproval of mandatory-minimums, and the use of “second-looks” for long prison sentences.

Moving through each provision, there was discussion of the new provisions pertaining to juvenile offenders and Reporter Reitz noted that later provisions will speak to collateral consequences and will reference some provisions that are in the sections now being examined. He also discussed the changes being offered with respect to the good-time provisions. A comment was offered on the need to soften the tone in this section so as not to antagonize parole or other similar authorities. Comments also focused on whether to specify certain items in the section on prison release and post-release supervision (e.g. – what constitutes “serious” and used in section 305-1(4)).

Who should have the decision-making authority on reduction of prison terms for good behavior? This has been an area of enormous controversy in the past. Reporter Reitz noted that a “principles for legislation” approach is taken here, and the suggestion of using retired members of the judiciary. Some questioned the specification in this draft of 15 and 10 years as times for these second looks, arguing that it should be lesser amounts.

The session ended with a general discussion of the project itself followed by a vote on the tentative draft, which was overwhelming approved.

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