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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This morning 's meeting on project selection

Posted By: Glenn Koppel | May 17, 2011 | 01:50 PM
As part of the ALI’s laudable goal of promoting input by the membership on future projects, this morning’s meeting focused on projects that are coming to a close, current projects, and future projects that are being explored.

The two projects that will come to an end at this annual meeting are Torts and Trusts (Restatement 3d).

Currently active projects are Liability Insurance Law, Government Ethics, Election Law, and American Law of International Commercial Arbitration. These projects will provide the material for ALI annual meetings in the next five years.

Concerning the project selection process, the ALI’s challenge is to locate topics where the Institute can have influence and to secure the right reporters.

Lance Liebman then turned to identify projects that are currently being explored:
1. More work on Torts: Other Torts subjects (professional malpractice, damages, etc.)
2. Criminal Law: Addressing issues that the Model Penal Code did not take up or did so imperfectly, e.g., sex crimes, fraud as a criminal subject
3. Contracts
4. Property: mortgages and mortgage foreclosures and possible changes to the UCC
5. Foreign Relations Law of the U.S.
6. Liberty/security/privacy interests
7. Indian Law
8. Family Law
9. Copyright/IP
10. International Financial Regulation

The meeting was then opened up to the membership for comments and suggestions for future projects, which included the following:
1. Principles of the Law of Electronic Information: privacy, protection of information and use of digital information in criminal investigation; jury selection (what jurors can or cannot use), discovery in civil litigation.
2. Bankruptcy Ethics: ethical issues that are unique to bankruptcy. Notwithstanding that some of these issues are treated by statute, it was suggested that the ALI can provide guidance.
3. Family Law: An area that lends itself to common law where there is much state variation; many would benefit from a systemic overview.
4. Second Restatement of Foreign Relations Law: Restatement 3rd has had an important impact on development of the law, but much has changed since 1987 (end of Cold War, WTO, globalization and technology, Human Rights, dispute resolution, use of executive power). Professor Liebman observed that some of these topics are contentious where consensus will be tough to achieve. The challenge is: where to start?
5. A member inquired about the ALI’s use of technology in terms of project selection process, including adviser selection and reporter selection. Professor Liebman responded that the ALI gets more email now than ever and puts out notice to membership to solicit self-nominations. The Institute will do more of this. President Ramo has appointed a special committee on technology.
6. Environmental Law: Principles of public nuisance, natural resources law.
7. Intellectual Property: Issues including patents and trademark rights where there are enormous international and technology ramifications and much confusion.
8. Preemption: It was suggested that this project start with Tort Law where the first question in every case is preemption. While this is a contentious area, the bones of contention are limited to outcome, not principles.
9. International Law in the Family Law context: The ALI’s Principles of Transnational Civil Procedure focuses exclusively on international commercial transactions but does not address the international ramifications of Family Law issues including cross-border movement of families.
10. Principles that address statutory interpretation on the back end and legislative drafting on the front end
11. Principles of Judgment Collection
12. A member rose to support the proposal to re-visit the foreign relations law of the U.S. and to comment that, while some issues are contentious, other issues need to re-visited, e.g., immunities (where there has been much change since 1987 in the area of sovereign immunity), jurisdiction (extra-territoriality), act of state doctrine, exhaustion of remedies, state secrets doctrine.
13. A member commented on the process of project selection urging that the Institute distinguish between what the ALI does well and what it does poorly, observing that the ALI most is successful in its Restatements which are the product of a thoughtful and principled process and are addressed to a judicial audience that looks for guidance from objective, neutral body. Thus, issues such as preemption addressed to the Supreme Court are less likely to have a significant impact. In ordering project selection priorities, the member noted that draft statutes don’t get enacted while Restatements aimed at persuading courts as to the proper common law approach are more successful. In response, Professor Liebman observed that the impact of Restatements has been uneven while the ALI’s UCC project has been very successful.
14. Restatement of Law of Punitive Damages.
15. The intersection of technology and privacy issues: principles of privacy rights in the workplace (including lawyering and blogging).
16. Federal Criminal Code project: many legislatures are not positioned to draft a thoughtful product.
17. A member rose to support a project on Indian Law.

Restatement of Law Third, Torts: Liability for Physical & Emotional Harm

Posted By: ALI Blogger | May 17, 2011 | 01:14 PM

Members Consultative Group Meeting

Posted By: ALI Blogger | May 17, 2011 | 12:58 PM

Annual Meeting Day 1

Posted By: Mark Stichel | May 16, 2011 | 09:30 PM
This morning's session began with a presentation by Lord Phillips of Worth
Matravers, President of the Supreme Court of the United Kingdom. When I was
in college, I spent a summer session at Oxford studying British politics. I
have followed with great interest the very significant changes that the last
Labour Government made in the structure of the government of the United
Kingdom. Lord Phillips' presentation was the most succinct and complete
discussion of the subject that I have heard or read. It was a great honor
and pleasure to have Lord Phillips address us.

The speed of ALI projects is at the other end of the spectrum from the speed
with which the Labour Government changed the structure of the judiciary that
brought about the Supreme Court of the United Kingdom. As a relatively new
member, I have seen the end and middle stages of a few projects over the
past few years, but this morning's election law project discussion was the
first at which I was at the beginning of creation. Given that the time was
short, I did not make it to the microphones, but I spoke to Professor Foley,
the reporter, after the session and he welcomed my sending him comments by
email. Although I think that discussion among the membership as a group is
very important, there are times when an email to a reporter can get across a
point when time has run out on a session. It has been my experience that
reporters welcome email comments and if you, like me, wanted to say
something this morning but were unable to do so, send an email.

Guy Struve's comments following the presentation to him of the well-earned
Wisdom award brought home to me something that I have come to realize after
attending several MCG and Annual Meetings. There is a learning curve to
participation in the ALI and you (hopefully) get better with practice.

The day finished with a Boskey motion on the Torts project. When I think
back to the life preserver that the Restatement Second of Torts was to me
when I was a first-year law student, it definitely was "cool," to use Guy
Struve's word, to be among the members who voted to send the last part of
the Restatement Third of Torts, Liability for Physical and Emotional Harm to
print.

High Honors to Michael Traynor and Guy Struve

Posted By: Dick Reeve | May 16, 2011 | 07:20 PM
Graceful humility, keen intellect, unfaltering loyalty, warm collegiality, professional accomplishment, and sincere deep respect for the members and process of the American Law Institute. Those things, and much more, characterize the many years of role model exemplary service and commitment to the ALI by Mike Traynor and Guy Struve.

How rare it is that such qualities receive the recognition and appreciation of the Institute in the form of an award. The clear sense in the Westin St. Francis Grand Ballroom this afternoon was the unanimous agreement of all present with the determination by the Awards Committee, Executive Committee, and the Council that there are no prospective honorees more deserving of the Institute's Distinguished Service Award and the John Minor Wisdom Award than Mike and Guy. To pick up on a central theme of Mr. Struve's appreciative acceptance comments: cool.

Guy Miller Struve and Michael Traynor Receive Well-Earned Awards

Posted By: Kristen D. Adams | May 16, 2011 | 06:10 PM
Two truly extraordinary members of the American Law Institute were honored this afternoon.

Guy Miller Struve, a partner in Davis Polk’s Litigation Department for more than 40 years, was honored with the Institute’s John Minor Wisdom Award. By way of background, the Wisdom Award was established by the Institute’s Executive Committee to honor the late emeritus ALI Council member John Minor Wisdom, former Senior Judge of the U.S. Court of Appeals for the Fifth Circuit, who died in 1999. The Award was endowed in 1990 by Judge Wisdom’s law clerks in celebration of his 85th birthday. It is given from time to time in specific recognition of a member’s contributions to the Institute’s work.

Mr. Struve has demonstrated a truly outstanding commitment to the American Law Institute through his close involvement in countless Institute projects. He has been an ALI member for more than 37 years. As someone who has attended annual meetings for just over a decade, I have come to look forward to Mr. Struve’s thoughtful, measured contributions to floor discussions, demonstrating not only wisdom but also a deep and abiding commitment and affection for the law at its best.

Michael Traynor was honored with the Institute’s Distinguished Service Award and a standing ovation. The Distinguished Service Award is given from time to time to a member who over many years has played a major role in the Institute as an institution, accepting significant burdens as an officer or committee chair. Mr. Traynor, who retired from Cooley Godward Kronish LLP in 2008 after serving as a partner for more than 35 years, has served as Chair of the Institute’s Council since 2008, having served as its President from 2002 to 2008. Introducing Mr. Traynor was Gerhard Casper, Professor of Law, Emeritus and President Emeritus of Stanford University, who spoke movingly of Mr. Traynor’s courage and vision in moving the Institute forward during his presidency, encouraging the Institute to take on issues that sometimes seemed too difficult and too controversial, and taking particular care to assure that all voices on an issue were given an opportunity to speak. In accepting the award with his customary graciousness, Mr. Traynor exhorted the membership to continue the tradition of reasoned, articulate, and respectful debate.

Address of Lord Phillips of Worth Matravers

Posted By: Glenn Koppel | May 16, 2011 | 04:30 PM
This morning we were treated to a thought-provoking address by Lord Phillips of Worth Matravers, the inaugural Lord Chief Justice of Britain's newly-established Supreme Court. The story of the historic replacement of the Law Lords with a Supreme Court raises the larger question of the structural requirements for judicial independence. For instance, how important is it to judicial independence that the courts be perceived by the public to be independent? Because Parliament is supreme under Britain's unwritten constitution, the lines between the administrative, legislative and judicial functions of government are blurred. Formerly, the Lord Chancellor performed executive, legislative and judicial roles merged into one office. The Law Lords, sitting in the House of Lords, performed judicial and legislative functions. Under that traditional arrangement, their judicial power, in Lord Phillips' words, was more real than apparent. Avoiding the hurdles of our constitutional amendment process, Tony Blair abolished the Lord Chancellor’s office and the Law Lords, replacing them with the Supreme Court. The Lord Chancellor was stripped of his judicial functions. The Law Lords thereby morphed into the first justices of the Supreme Court.

Two things stand out about the way in which this historic reform was achieved. I was struck by how easy it is to make a fundamental structural change in the British system of government. The absence of separation of powers under the unwritten constitution enabled the Government of the Day to achieve at the stroke of a Parliamentary pen the separation of the judiciary function from the legislative and administrative. Because of the principle of Parliamentary supremacy, the Prime Minister, as head of the majority party in Parliament, unilaterally changed the century's-old structure of government. It is also noteworthy that the country that provided the foundation for our common law tradition has, to some extent, taken a leaf from our book in re-structuring its legal system.

Lord Phillips touched upon the importance of the public's perception of judicial independence as well as the reality of independence: that appearance matches reality. The public needs to know who in government is ultimately accountable for shaping the law. He reminded us that the appearance of our own Supreme Court's independence from Congress was reinforced by moving the Court out of its humble digs in the Capitol and into its own home.

One is left to reflect on how independent Britain's new Supreme Court, or any Supreme Court, will be in practice. Lord Phillips noted that the Supreme Court will not be “supreme.” Parliament is still supreme in Britain's constitutional constellation; there is, therefore, no such thing as “unconstitutional” laws a la Marbury v. Madison (except for the charter of the European Union, from which Parliament can withdraw.) And how independent from political influence will Britain's Supreme Court - indeed, any Supreme Court, including our own - be? Recent confirmation battles over U.S. Supreme Court appointments remind us that even a judicial branch that is structurally distinct from the executive and the legislature is not far removed from the shifting political winds. It seems that the independence of any country's judiciary cannot be divorced from the larger constitutional system in which it is embedded.

Election law project discussion

Posted By: Leslie Francis | May 16, 2011 | 03:50 PM
The discussion of the election law project is emphasizing questions about whether it will be possible to do the project in a manner that transcends politics. The plan is to try to start with two issues that may be resolvable in advance, before people know how the election would be affected. So the ALI is taking up the question of how to count ballots, as an example of a problem that can be resolved in advance. And the project is also taking up the question of how to manage novel voting methods, such as early voting. I hope the project developers are right and the ALI will be able to help with these issues above the political thicket and that the strategy of taking up these selected issues works as a model.

In welcoming us, Roberta Ramo said that many new members come from government and public service. A nice follow up on this theme is that the project will take into account the counting of overseas military ballots.

There was no response to the suggestion of considering the qualification of felons to vote. This is just one of the many issues of access that are not included in the project as currently conceived, but that could be addressed later if the first efforts succeed.

Good luck to the project--a fitting complement to the first session's ringing endorsement of the importance of law to justice.

Opening session

Posted By: Leslie Francis | May 16, 2011 | 03:20 PM
Roberta Cooper Ramo opened the meeting by sounding the theme of the importance of law reform domestically and internationally. We were then treated to addresses by Lord Phillips of Worth Matravers, first president of the new UK Supreme Court and Stephen Zack, current president of the ABA.

Lord Phillips had travelled from the opening of the new supreme court in Bhutan. Bhutan, he observed, is managing a peaceful transition to democracy, unlike the United States. In the US, separation of powers was part of that rebellion. Today in the UK there are three arms of government, each with powers delegated from the monarchy and in a sense exercising power at the pleasure of the monarch, although the monarch 's powers are largely illusory.

The UK supreme court is the final step in the achievement of separation of powers in the UK, Lord Phillips said. When Lord Phillips became a law lord, he found somewhat unusual quarters, with space for only four clerks in a garret in Westminster. Technically law lords were not judges and issued their decisions as part of the proceedings of lords. Woolsack and all. They were full members of the House of Lords but by convention did not act as such--except when one law lord wanted to vote in favor of house hunting.

We also heard from Lord Phillips how Blair 's changes were "muddled" -- it took six years even to find a building. But establishment of the court is the final step in creating the separation of powers in the UK. Before the transition to a Supreme Court, the law lords weren 't perceived at all by the public. It is critical that they not only are independent but are seen to be so. Unlike in the US, all proceedings are filmed. Still, parliament remains supreme in the UK and could undo any decision. Parliament has chosen to forego supremacy with respect to the EU but could undo that too.

In response to a question about strained resources for courts asked by Chief Justice Durham of Utah, Lord Phillips said that they were suffering from cost cutting, too. Courts in Britain now are overwhelmed by immigration cases also.
The second speaker of the morning session was Stephen Zack, ABA president. He gave a ringing endorsement of the importance of equal justice under law -- a promise to all Americans, in jeopardy today. There is a justice gap where 80% of poor people have no access to justice and Legal Services Corporation is disastrously underfunded. 11 states spend less than 1% of their budgets on the entire system of justice. All civil jury trials are suspended in NH for a year. There 's a need for courtroom closures in the California budget. Legislators see courts as getting in the way. The rule of law is different from rule by law. Zack closed with an anecdote about his grandfather leaving Cuba. Although his grandfather was terribly sad about losing everything, he was heartened by the thought that he would never be a refugee again because if the US falls there would be no place to go.

Two speakers from different perspectives, both agreeing on the importance of the courts in the rule of law. Now the ALI is innovating and we are listening to a discussion of the new election law project. This is doubly innovative, both in sharing the project ahead of time and in the project itself.

Preview of Principles of Election Law Project

Posted By: Kristen D. Adams | May 16, 2011 | 03:10 PM
The Institute invited Reporter Edward Foley and Panelists Doug Chapin, Trevor Potter and Kevin Hamilton to provide a preview of the new Principles of Election Law Project, describing some of the project’s goals and also giving an overview of some of the challenges the project is seeking to address, including issues raised by early voting and “no fault” absentee voting. These are part of the project’s focus on “non-precinct voting,” which is one of two major topics within the project’s scope at this time. The other major topic to be addressed is the principles, rules, and procedures for recounts and other means of dispute resolution after ballots have been cast and counted.

The initiation of this project was approved by the Council in October 2010, so the project is less than one year old. Normally, a project appears on the Annual Meeting agenda only when a draft is available for discussion or vote, or when a major project motion is to be considered. Thus, this kind of overview discussion is something new.

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