THE QUARTERLY NEWSLETTER OF THE AMERICAN LAW INSTITUTE Annual Meeting Recap The American Law Institute’s 93rd Annual Meeting took place May 16-18, 2016, in Washington, DC. The agenda consisted of six projects with drafts up for approval. The Meeting also featured distinguished speakers on each of the three days, as well as the Henry J. Friendly Medal presentation to Patricia M. Wald, and a memorial service for former ALI Treasurer, Bennett Boskey. Council Elections At the opening session of the Annual Meeting, membership voted to approve six new Council members for a five-year term, who were presented by Nominating Committee Chair Diane P. Wood, chief judge of the U.S. Court of Appeals for the Seventh Circuit. The new Council members are John B. Bellinger, III, of Arnold & Porter LLP; Ketanji Brown Jackson of the U.S. District Court for the District of Columbia; Gregory P. Joseph of Joseph Hage Aaronson LLC; Patricia Ann Millett of the U.S. Court of Appeals for the District of Columbia Circuit; Janet Napolitano, president of the University of California; and Stuart Rabner, chief justice of the New Jersey Supreme Court. Short biographies of Council members can be found on the ALI website. THE PRESIDENT’S LETTER Doing America’s Work At a time when the legislative functions in Congress and in some states are in a kind of terrifying traffic jam when so much needs to be done, the ALI, by contrast, met in May as we have since 1923 to think about, debate, modify, and approve segments of our important projects. This Annual Meeting had the highest registration and participation we have seen in many years. Our survey of those who attended found that 100 percent of them plan on returning to the Annual Meeting. The feeling throughout the Meeting was one of enthusiastic participation and appreciation for the quality of the conversation. If you were not able to attend this year, and even if you did, you will find the thought-provoking remarks of our speakers on the website. We heard the perspectives of Justice Stevens, agile in his thinking and sharing with us remarkably candid views and those of Justice Sotomayor with insights into her views of matters from the role of dissents in the certiorari process to how her various experiences as a lawyer and a student affect how she shapes her thoughts. Our members had the advantage of hearing views of life and justice from members of our highest Court. Larry Kramer spoke about his work to end gridlock in Congress, Judge William Pryor about sentencing in the federal system, and Geof Stone about free speech on university campuses. And those were just the moments when our membership was not engaged directly in reviewing the six projects that came before the Annual Meeting for various stages of approval. Since its inception, our revision of the sexual- assault provisions of the Model Penal Code has generated a spirited debate, especially over the definition of consent. You may have been aware of the tension between those who represent survivors of sexual assault, including prosecutors, and lawyers who represent those charged with sexual assault. Both views and John B. Bellinger, III, Ketanji Brown Jackson, Gregory P. Joseph, Patricia Ann Millett, Janet Napolitano, and Stuart Rabner continued on page 22 VOLUME 38 NUMBER 3 SUMMER 2016 LEARN MORE ABOUT THE ANNUAL MEETING IN THIS ISSUE.
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THE QUARTERLY NEWSLETTER OF THE AMERICAN LAW INSTITUTE
Annual Meeting RecapThe American Law Institute’s 93rd Annual Meeting took place May 16-18, 2016, in Washington, DC. The agenda consisted of six projects with drafts up for approval. The Meeting also featured distinguished speakers on each of the three days, as well as the Henry J. Friendly Medal presentation to Patricia M. Wald, and a memorial service for former ALI Treasurer, Bennett Boskey.
Council ElectionsAt the opening session of the Annual Meeting, membership voted to approve six new Council members for a five-year term, who were presented by Nominating Committee Chair Diane P. Wood, chief judge of the U.S. Court of Appeals for the Seventh Circuit. The new Council members are John B. Bellinger, III, of Arnold & Porter LLP; Ketanji Brown Jackson of the U.S. District Court for the District of Columbia; Gregory P. Joseph of Joseph Hage Aaronson LLC; Patricia Ann Millett of the U.S. Court of Appeals for the District of Columbia Circuit; Janet Napolitano, president of the University of California; and Stuart Rabner, chief justice of the New Jersey Supreme Court. Short biographies of Council members can be found on the ALI website.
THE PRESIDENT’S LETTER
Doing America’s WorkAt a time when the legislative functions in Congress and in some states are in a kind of terrifying traffic jam when so much needs to be done, the ALI, by contrast, met in May as we have since 1923 to think about, debate, modify, and approve segments of our important projects. This Annual Meeting had the highest registration and participation we have seen in many years. Our survey of those who attended found that 100 percent of them plan on returning to the Annual Meeting. The feeling throughout the Meeting was one of enthusiastic participation and appreciation for the quality of the conversation.
If you were not able to attend this year, and even if you did, you will find the thought-provoking remarks of our speakers on the website. We heard the perspectives of Justice Stevens, agile in his thinking and sharing with us remarkably candid views and those of Justice Sotomayor with insights into her views of matters from the role of dissents in the certiorari process to how her various experiences as a lawyer and a student affect how she shapes her thoughts. Our members had the advantage of hearing views of life and justice from members of our highest Court. Larry Kramer spoke about his work to end gridlock in Congress, Judge William Pryor about sentencing in the federal system, and Geof Stone about free speech on university campuses. And those were just the moments when our membership was not engaged directly in reviewing the six projects that came before the Annual Meeting for various stages of approval.
Since its inception, our revision of the sexual-assault provisions of the Model Penal Code has generated a spirited debate, especially over the definition of consent. You may have been aware of the tension between those who represent survivors of sexual assault, including prosecutors, and lawyers who represent those charged with sexual assault. Both views and
John B. Bellinger, III, Ketanji Brown Jackson, Gregory P. Joseph, Patricia Ann Millett, Janet Napolitano, and Stuart Rabner
continued on page 22
VOLUME 38 NUMBER 3 SUMMER 2016
LEARN MORE ABOUT THE ANNUAL MEETING IN THIS ISSUE.
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Police Investigations Philadelphia, March 31 and April 1
Project Advisers gather for the first Principles of the Law, Police Investigations meeting.
Alexandra Natapoff of Loyola Law School, Los Angeles
Brittany Packnett, Campaign Zero activist
ALI Director Richard L. Revesz, project Reporter Barry Friedman of NYU School of Law, and Associate Reporters Rachel A. Harmon of University of Virginia School of Law, Tracey L. Meares of Yale Law School, and Brandon L. Garrett of University of Virginia School of Law
2 THE ALI REPORTER
EDITORJennifer L. Morinigo(215) [email protected]
MANAGING EDITORPauline Toboulidis (215) [email protected]
ASSOCIATE EDITORTodd David Feldman(215) [email protected]
The ALI Reporter (ISSN 0164-5757) is published quarterly by The American Law Institute, 4025 Chestnut Street, Philadelphia, PA 19104-3099. Nonprofit U.S. postage paid at Langhorne, PA.
POSTMASTER: Send address changes and any other communications to 4025 Chestnut Street, Philadelphia, PA 19104-3099.
THE DIRECTOR’S LETTER BY RICHARD L. REVESZ
Principles of the Law, Police Investigations: The AdvisersAdvisers play a key role in each ALI project. They are specialists in the project’s area who meet at least annually with the Reporters to discuss drafts of particular Sections. Although the Advisers have no formal voting role, their advice is quite influential. Advisers are typically judges, academics, and lawyers in private practice, or representing government agencies or public interest organizations. But one of our seven new projects—Principles of Police Investigations—has a quite different lineup, reflecting its subject matter. I thought that telling you a bit about these Advisers would give you an informative perspective on this project, which had its first Advisers meeting in March 2016.
The Principles of Police Investigations is somewhat of an unusual undertaking for the ALI. Anyone watching the news over the past two years realizes how important this project is, and yet how sensitive the topic and thus how difficult it might be to obtain widespread consensus. In addition, because it is a “Principles” project, the goal is not to synthesize judicial precedent. Rather, the Reporters are working to develop best practices for issues concerning policing that have significant legal underpinnings. Our work is informed by a variety of sources including existing policies and practices in various jurisdictions, social science research, and constitutional norms. Finally, the audience for the project is quite broad, including legislatures, policing agencies, bodies that regulate or conduct oversight on policing, the public, and also, in some instances, the courts.
Given the nature of the Principles of Police Investigations project, we selected a slate of Advisers with wide experience in and around law enforcement, on all sides of these sometimes contentious issues. They range from police chiefs and prosecutors, to activists, public interest leaders, and experts on the technology of policing. And, of course, we also have the more traditional complement of prominent judges, academics, and lawyers.
A significant proportion of the Advisers for this project come from law enforcement. This high-profile group of police officials with long experience in the field is invaluable in guiding our efforts. Among the Advisers is Charles H. Ramsey, Co-Chair of the President’s Task Force on 21st Century Policing and former Philadelphia Police Commissioner, who widely is recognized as one of the foremost authorities on community policing. (The other Co-Chair of the Task Force, George Mason University Professor Laurie Robinson, also is an Adviser to the project.) Among our Advisers, we have current and former police chiefs Art Acevedo from Austin, TX; Hassan Aden from Greenville, NC; Jim Bueermann from Redlands, CA; Robert C. Haas from Cambridge, MA; George Gascón from San Francisco, CA (now the District Attorney); Sylvia M. Moir from Tempe, AZ;
Darrel Stephens from Charlotte-Mecklenburg; and Scott Thomson from Camden, NJ. We have the Executive Director of the Washington State Criminal Justice Training Commission (and President’s Task Force member and former Sheriff of King County, Washington), Sue Rahr; Philadelphia Police Department Deputy Commissioner of Organizational Services, Strategy, and Innovation and Chief Administrative Officer, Nola Joyce; and two academy instructors, from Chicago and Sacramento. The Director and Chief Legal Counsel of the Illinois Police Benevolent and Protective Association, Sean Smoot, yet another member of the President’s Task Force, also is an Adviser. We also have leaders from Major Cities Chiefs Police Association, the Police Executive Research Forum, and the Police Foundation.
At the same time, we thought it essential to include individuals from organizations that have expressed concern about policing. Thus, we are fortunate to have among our Advisers the Black Lives Matter activist and one of the founding members of Campaign Zero, Brittany Packnett, and longtime civil rights activist and co-founder of the L.A. Advancement Project, Connie Rice. We have also representatives from major civil liberties organizations, including Christopher Soghoian, the Principal Technologist at the ACLU, and NAACP Legal Defense and Educational Fund President Sherrilyn Ifill. On the defense bar side, we have Norman L. Reimer, Executive Director of the National Association of Criminal Defense Lawyers; Jeff Adachi, San Francisco Public Defender; and Deirdre von Dornum who is the Attorney-in-Charge of the Eastern District office of the Federal Defenders of New York.
That still does not cover all the areas from which we have drawn Advisers. We have Gary, Indiana, Mayor Karen Freeman-Wilson, and former Nashville Mayor, Karl F. Dean. We have a former state Attorney General, a city District Attorney, and a current U.S. Attorney. And we have Advisers from Google, the Heritage Foundation, the Joyce Foundation, and the Criminal Division and the Civil Rights Division of the U.S. Department of Justice.
As one would expect given the high caliber and diversity of the individuals involved, the first Advisers meeting—at which the Reporters presented introductory Principles from various Chapters—was notable for its lively and candid conversation. At the same time, we reached a great deal of consensus on core principles of policing—on matters from consent searches to witness identification—proving a promising start for the project. The Advisers and Reporters came closest to resolution on one of the major issues of the day, dealing with the use of force. This important topic might be the first portion of the project to go to the Council and then to the membership for approval.
SUMMER 2016 3
Actions Taken at the 93rd Annual MeetingMONDAY, MAY 16
Principles of the Law, Election Administration: Non-Precinct Voting and Resolution of Ballot-Counting Disputes
Part I: Principles of Non-Precinct Voting: Early In-Person Voting and Open Absentee Voting and Part III: Procedures for the Resolution of a Disputed Presidential Election were presented for approval. After the Reporters fielded comments from the floor, the membership voted to approve both parts subject to the discussion at the Annual Meeting and to the usual editorial prerogative, including a proposed amendment to Part III, § 304.
Restatement of the Law, Liability Insurance
Membership was presented with Tentative Draft No. 1, which included Chapter 1: Basic Liability Insurance Contract Rules, Chapter 2: Management of Potentially Insured Liability Claims, and Chapter 3: General Principles Regarding the Risks Insured. In response to motions, the Reporters agreed to revise §§ 13(3) and 34, and withdrew § 37 for redrafting. There was insufficient time to discuss §§ 44 and 45. Subject to the Meeting’s discussion and the usual editorial prerogative, the membership approved §§ 1-36 and 38-43 of Tentative Draft No. 1.
TUESDAY, MAY 17
Model Penal Code: Sexual Assault and Related Offenses
The draft presented included §§ 213.0(3) and 213.2. After an extensive discussion, the membership approved an amended version of § 213.0(3) (definition of consent), which was presented by motion. There was insufficient time to discuss § 213.2 (sexual penetration without consent).
Restatement of the Law, Charitable Nonprofit Organizations
Chapter 1: Definition, Choice of Form, and Autonomy (§§ 1.01-1.03); Chapter 2: Governance; and Chapter 3: Changes to Purpose and Organization (§§ 3.01-3.04, 3.06). The membership discussed the draft and approved all Sections subject to the discussion at the Meeting and to the usual editorial prerogative.
Council member Derek P. Langhauser leads the project discussion with Reporter Edward B. Foley and Associate Reporter Steven F. Huefner.
ALI President Roberta Cooper Ramo moderated as Reporters Marion R. Fremont-Smith and Jill R. Horwitz responded to questions from the floor.
Reporters Tom Baker and Kyle D. Logue respond to membership comments.
This year’s Sexual Assault project session in progress
Associate Reporter Erin E. Murphy and Reporter Stephen J. Schulhofer after the project session
4 THE ALI REPORTER
WEDNESDAY, MAY 18
Model Penal Code: Sentencing
Sections 1.02(2) (Purposes; Principles of Construction); 6.04A (Victim Restitution); 6.07 (Credit Against the Sentence for Time Spent in Custody); 6.14 (Restorative Justice Practices); and 6B.07 (Use of Criminal History) were presented to the membership. Motions to amend §§ 6.04A and 6B.07 were approved during the discussion. The membership then approved all presented Sections, including amended versions of §§ 6.04A and 6B.07, subject to the discussion at the Meeting and to the usual editorial prerogative. In view of the discussion, § 6.14 was approved by the membership with the understanding that if recommended edits result in substantive changes, § 6.14 will be reintroduced to the membership for further vote.
Restatement of the Law Fourth, The Foreign Relations Law of the United States – Jurisdiction, Treaties, and Sovereign Immunity.
Members discussed Jurisdiction: Part II. Prescription. Chapter 1, §§ 201-203; 205 (Exercise of Prescriptive Jurisdiction by the United States); Chapter 2, §§ 211-217 (Customary International Law Governing Jurisdiction to Prescribe); Chapter 3, §§ 221-222 (Effect of Foreign Exercises of Prescriptive Jurisdiction); Part III. Adjudication. Chapter 1, §§ 301-306 (Jurisdiction to Adjudicate in Civil Cases); Treaties: Chapter 2, §§ 101, 103, 107-109 (Status of Treaties in United States Law), and Sovereign Immunity: Chapter 5, §§ 455-456, 459, 461-463 (Immunity of States from Jurisdiction).
Subject to the discussion at the Meeting and to the usual editorial prerogative, the members voted to approve all Sections of the drafts with the exception of § 204 of the Jurisdiction draft, in Part II, Chapter 1, which was presented to the membership for discussion only.
WITH THIS YEAR’S DRAFT APPROVAL, THE SENTENCING PROJECT IS ON TRACK TO BE COMPLETED AT NEXT YEAR’S ANNUAL MEETING.
ALI Treasurer Wallace B. Jefferson joins Reporter Kevin R. Reitz and Associate Reporter Cecelia M. Klingele at the project session.
Miriam A. Krinsky, Los Angeles Sheriff’s Department
James E. Felman, Kynes, Markman & Felman, PA Conrad K. Harper, Council Emeritus
Members voting on a draft
Coordinating Reporters Sarah H. Cleveland and Paul B. Stephan, Jurisdiction Reporter William S. Dodge, Treaties Reporters Curtis A. Bradley and Edward T. Swaine, and Sovereign Immunity Reporter David P. Stewart
SUMMER 2016 5
On Monday, May 16, ABA President Paulette Brown of Locke Lord LLP addressed the audience on “Reclaiming the Promise of ‘And Justice for All.’” She praised the legal community’s efforts in increasing diversity and inclusion in the legal profession, and encouraged the lawyers in the room to continue efforts confronting implicit bias in the legal system. “As lawyers,” she maintained, “we must not only be up to the challenges of improving diversity and inclusion in the legal profession and confronting implicit bias in the justice system, but we must also lead the effort.”
In his speech “The Rule of Law: The Path to Exceptionalism,” Sundaresh Menon, Chief Justice of the Supreme Court of Singapore and the President of the Singapore Academy of Law, discussed the instrumental role the courts play in upholding the rule of law, as well as Singapore’s and the United States’ journey and commitment to the rule of law.
“Despite the vast differences in our legal systems and the variations in the length, the color, and the character of our history and culture,” he said, “it is that same commitment to the rule of law that brings us here today, and this should be a heartening thought for all of us who have made it nothing less than our life’s work.”
Noting that a court that is respected by other government branches can effectively shape a debate “and ensure the legality of government actions by setting out its concerns openly and potentially obviating a binary clash between the judiciary and the executive,” he implored lawyers to “do all we can to advance the fight against corruption in nations that continue to labor under its yoke,” and asserted that lawyers, judges, and the academy “are specially placed to combat corruption from the ground up.”
ABA President Paulette Brown Chief Justice Sundaresh Menon
WATCH THE SPEAKERS’ REMARKS ONLINE AT WWW.ALI.ORG/ANNUAL-MEETING-2016/VIDEOS.
ALI Director Richard L. Revesz and ALI President Roberta Cooper Ramo with Justice Sonia Sotomayor
Speakers at the Annual MeetingDuring a break from the Liability Insurance project session, the ALI had the honor of welcoming U.S. Supreme Court Associate Justice Sonia Sotomayor to the stage. She was joined by ALI President Roberta Cooper Ramo and ALI Director Richard L. Revesz. They engaged in a thought-provoking discussion on several topics, including the collegiality and passion involved in conserving the integrity of the rule of law.
On Tuesday, May 17, the Model Penal Code: Sexual Assault and Related Offenses project took a brief break as the ALI welcomed retired U.S. Supreme Court Associate Justice John Paul Stevens, who was joined by and engaged in a spirited conversation with his former clerk, Council member Carol F. Lee. They reminisced about his time on the bench, and discussed the evolution of the Supreme Court, as well as life after the Court.
Members who attended the Members Luncheon Honoring New Life Members (Class of 1991) and New 50-Year Members (Class of 1966) heard remarks from Larry Kramer, president of The William and Flora Hewlett Foundation and former dean of Stanford Law School. Mr. Kramer highlighted present and past congressional obstacles to achieving consensus through negotiation and compromise and discussed potential solutions to these ongoing problems.
6 THE ALI REPORTER
Carol F. Lee with Justice John Paul Stevens
Panelists Rachel E. Barkow, Richard F. Boulware II, Michael R. Dreeben, and Gerard E. Lynch
Gail K. Hillebrand of the Consumer Financial Protection Bureau, and Samuel W. Buell of Duke Law School
Life member Edwin E. Huddleson Larry Kramer
William H. Pryor Jr.
Michael N. Simkovic
On Wednesday, May 18, during a break from project sessions, Young Scholar Medal Co-Recipient Michael N. Simkovic of Seton Hall University School of Law presented “What Can We Learn from Credit Markets?” He opened with a quote from Oliver Wendell Holmes, from his address entitled “The Path of the Law”: “For the rational study of the law, the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” Professor Simkovic presented evidence that “Holmes’ vision of a legal system informed by economic and statistical analysis continues to inspire a new generation of legal scholars.”
Wednesday’s Members Luncheon featured speaker Judge William H. Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit. In his speech, “The Future of Federal Sentencing Guidelines,” Judge Pryor examined the history and complications of federal sentencing guidelines and offered his thoughts on potential solutions.
Panel Discussion: Federal Role in Law Enforcement Each year, ALI hosts a smaller breakfast session featuring a topic relevant to current ALI projects. This year’s breakfast was a panel discussion followed by some Q and A on “The Federal Role in Law Enforcement.” Members who were invited included project participants on both Model Penal Code projects, Sentencing and Sexual Assault and Related Offenses, and on Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations. The panelists were Professor Rachel E. Barkow of NYU School of Law; Judge Richard F. Boulware II of the U.S. District Court, District of Nevada; Michael R. Dreeben, Deputy Solicitor General at the U.S. Department of Justice; and Judge Gerard E. Lynch of the U.S. Court of Appeals, Second Circuit.
SUMMER 2016 7
Henry J. Friendly Medal: Patricia M. Wald
Patricia M. Wald was presented the Henry J. Friendly Medal at this year’s Annual Meeting. The Medal recognizes contributions to the law in the tradition of Judge Friendly and the Institute.
When presenting the Medal to Judge Wald, Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit noted that the Medal “is a fitting tribute to one of the greatest jurists in American history, and . . . appropriately reserved for those who can be described as truly distinguished in the tradition of Judge Friendly and the ALI. Patricia M. Wald easily meets the standard.”
During her speech, Judge Wald discussed the challenges facing courts as a result of a perennially changing world. She applauded the Institute’s efforts in keeping pace with societal changes and increasing the involvement of a more diverse body of legal scholars. “Nobody can doubt that the ALI’s welcoming of a more diversely gendered leadership has contributed mightily to its growth and ability to confront the burning legal issues of the last three decades. One has only to look at the agenda of this Annual Meeting to validate that conclusion.”
In her speech, Judge Wald reminisced about the lessons she learned from her interactions with Judge Friendly and clerking for Judge Jerome N. Frank of the U.S. Court of Appeals for the Second Circuit. She noted that while Judge Friendly was an “unchallenged paragon of judicial restraint,” which differed from Judge Frank’s desire to continue discussions of fascinating issues despite their relevancy, the judicial system needs both. “We need diversity on our courts, not just racial, gender, or ethnic diversity but diversity of experience, outlook, and even temperament . . . the judiciary must as well capture the diversity of our nation’s best legal leaders.”
Judge Wald served for 20 years on the U.S. Court of Appeals for the District of Columbia Circuit, from 1979 to 1999, including five years as Chief Judge. She is currently a member of the Privacy and Civil Liberties Oversight Board.
Judge Wald has had an enormously distinguished career and is known for her modesty, humanitarianism, and great wisdom. She is a respected leader in the legal community, recognized for the manner in which she handled cases involving the rights of women and children in the U.S. and abroad. She was the first woman appointed to the D.C. Circuit and the first woman to serve as Chief Judge of a Circuit; she also was the first woman to serve on ALI’s Executive Committee and the first woman officer, holding the offices of Second Vice President and First Vice President.
She has received innumerable honors and awards, including the ABA Medal and perhaps, most notably, the Presidential Medal of Freedom, the nation’s highest civilian honor.
Judge Wald has been a dedicated member of ALI for 43 years. She served on the Council for 31 years, and on the Nominating Committee, which identifies candidates for ALI’s Council and other leadership positions, for 26 years. She is currently an Adviser on the Sentencing and Election Administration projects.
To read Judge Wald’s complete biography, please visit ALI’s Annual Meeting website at www.ali.org/annual-meeting-2016/speakers.
ALI President Roberta Cooper Ramo, Patricia M. Wald, and Harry T. Edwards
Patricia M. Wald
8 THE ALI REPORTER
Class of 1991 Gift PresentationThe Institute celebrated its new Life members and 50-year members—the Classes of 1991 and 1966, respectively—at a luncheon held in their honor on Tuesday, May 17, during the 93rd Annual Meeting in Washington, DC. Additional cause for celebration was prompted by the 1991 Class exceeding its goal of raising $150,000 to support the Institute.
ALI President Roberta Cooper Ramo, a member of the 1991 Class herself, introduced 1991 Class Co-Chairs Linda Sheryl Greene of University of Wisconsin Law School; John J. “Mike” McKetta, III, of Graves, Dougherty, Hearon & Moody, P.C.; Michael Alexander Kahn of Crowell & Moring LLP; and Henrietta Wright of Goldberg, Godles, Wiener & Wright LLP; as well as Donald B. Ayer of Jones Day, who was not in attendance.
Mr. McKetta then presented the 1991 Class Gift to the Institute, enthusiastically noting that nearly two-thirds of the Class participated in raising $159,630, making this one of the most successful Class Gift campaigns yet. That total has since increased to $162,130, and contributions are still being accepted through June 30, 2016.
The Class Gift, Mr. McKetta explained, will assist the Institute by financially supporting its important work, removing barriers to participation (through the Judges and Public-Sector Lawyers Expense Reimbursement program and the Members Consultative Group Travel Assistance program), and supporting the future through the Young Scholars program.
Mr. McKetta spoke of the great joy he and all of the Co-Chairs found in visiting with fellow members of the Class—who in addition to President Ramo include ALI Director Richard L. Revesz and ALI President Designate David F. Levi—and recounted a particularly touching conversation he had with a
Class member reflecting on what the Institute meant to him. In closing, Mr. McKetta sincerely thanked the Class members for their “generosity and for [their] participation in the work of the Institute.”
Representing the Class of 1966 was Boris Auerbach of the Uniform Law Commission; Paul DeWitt Carrington, a Harry R. Chadwick, Sr. Professor Emeritus of Law at Duke University; and Samuel A. Stern, a retired partner at Hills Stern & Morley LLP. President Designate Levi presented to each a medallion honoring their 50 years as a member of the Institute. Also in attendance to accept the medallion of her late father, 1966 Class member Carl A. Auerbach, was ALI member Linda Auerbach Allderdice.
Larry Kramer, the president of The William and Flora Hewlett Foundation and a member of the 1991 Class, was the luncheon speaker. Mr. Kramer, who prior to his current position served as the Richard E. Lang Professor of Law and Dean of Stanford Law School, spoke on the Foundation’s “Madison Initiative,” an effort to fix the problems of political polarization and hyper-partisanship that are particularly prominent in Congress.
Mr. Kramer described several developments that led to “the process of compromising differences”—an essential element to a republican government in his view—having “become something impossible to achieve in our political system.” Through the Madison Initiative, he explained, the Foundation is taking steps to “nudge the system in the right direction.” Mr. Kramer’s remarks can be viewed at www.ali.org/kramer-remarks.
The Institute’s Class Gift program will continue with the 1992 Life Member Class that will be honored at the Institute’s 94th Annual Meeting.
1991 and 1966 Class members gathered to celebrate 25 and 50 years with the Institute.
SUMMER 2016 9
The 1991 Life Member Class Gift
The 1991 Life Member Class Gift will be used to fund important aspects of the Institute’s mission, including the Members Consultative Group Travel Assistance program, the Judges and Public-Sector Lawyers Expense Reimbursement program, the Young Scholars Medal and annual symposia, and ALI’s influential law-reform projects.
The American Law Institute is grateful to everyone who contributed to the 1991 Life Member Class Gift campaign. We appreciate your generosity.
GIVING CIRCLE DONORS
Learned Hand Circle ($15,000 – $24,999)Michael Alexander Kahn, San Francisco, CA
(Three-year pledge) In memory of Bennett Boskey
Charles Alan Wright Circle ($10,000 – $14,999)Jerald David August, New York, NY
(Five-year pledge)Donald B. Ayer, Washington, DC
(Five-year pledge)David F. Levi, Durham, NC
(Five-year pledge) In memory of Daniel J. MeltzerJohn J. McKetta, III, Austin, TX
In memory of Charles Alan WrightRoberta Cooper Ramo and Barry Ramo, Albuquerque, NMRichard L. Revesz, New York, NY
(Five-year pledge)
Herbert Wechsler Circle ($5,000 – $9,999)Roger J. Dennis, Philadelphia, PA
(Five-year pledge) In honor of Amelia H. Boss and Roger S. Clark
Bryant G. Garth, Irvine, CA Kenneth and Harle Montgomery Foundation
Richard E. V. Harris, Piedmont, CA In honor of Deborah A. DeMott; Geoffrey C. Hazard, Jr.; Thomas D. Morgan; Roswell B. Perkins; Charles W. Wolfram; and in memory of Charles Alan Wright
Richard S. Kinyon, San Francisco, CALarry Kramer, Menlo Park, CAPeter Linzer, Houston, TX
(Five-year pledge)David G. Owen, Columbia, SC
The Owen FoundationSteven S. Rosenthal, Washington, DC
Soia Mentschikoff Circle ($2,000 – $4,999)R Gordon Appleman, Fort Worth, TX
(Four-year pledge)Bruce H. Bokor, Clearwater, FLPatricia A. Cain, Santa Clara, CA
(Five-year pledge)Wayne Dale Collins, New York, NYLinda Sheryl Greene, Madison, WI
(Five-year pledge)Myles V. Lynk, Tempe, AZ
(Five-year pledge)John F. Olson, Washington, DCBurnele Venable Powell, Columbia, SC
(Five-year pledge)Charles W. Schwartz, Houston, TXStephen E. Shay and Wendy A. Weiss, Cambridge, MATheodore S. Sims, Boston, MASarah S. Vance and Robert Patrick Vance, New Orleans, LAVaughn R. Walker, San Francisco, CAHenny Wright and Ed Stead, Dallas, TX
In memory of Charles Alan Wright
DONORS
Sustaining Life-Plus Donors ($500 – $1,999)Jayne W. Barnard, Williamsburg, VALouis F. Bonacorsi, St. Louis, MORichard A. Booth, Villanova, PA
(Five-year pledge)Stephen S. Dunham, University Park, PAGail Erickson, Brooklyn, NYArthur Norman Field, New York, NYMartin L. Fried, Sarasota, FL
(Four-year pledge)Jerome A. Geis, St. Paul, MNRichard W. Hulbert, New York, NYKenneth N. Klee, Los Angeles, CAJohn J. McGregor, Fresno, CABarry R. Ostrager, New York, NYPeter M. Panken, New York, NYKeith E. Rounsaville, Belle Isle, FLHarold F. See, Hendersonville, TNKarla W. Simon, Washington, DC
(Five-year pledge)Manning Gilbert Warren III, Louisville, KY
In memory of William Douglas Arant
ALI President and 1991 Class Member Roberta Cooper Ramo with 1991 Class Co-Chairs Linda Sheryl Greene, Henrietta Wright, Michael Alexander Kahn, and John J. “Mike” McKetta, III, during the 1991 Class Gift presentation
10 THE ALI REPORTER
continued on page 12
Sustaining Life Donors ($125 – $250)David L. Callies, Honolulu, HIRochelle C. Dreyfuss, New York, NYWendy J. Gordon, Boston, MASheila Slocum Hollis, Washington, DCJoan K. Irion, San Diego, CAWilliam F. Kroener, III, Washington, DCDon G. Lents, St. Louis, MOJames A. Medford, Greensboro, NCKatherine Shaw Spaht, Baton Rouge, LAJohn C. Unkovic, Pittsburgh, PAWilliam M. Wiecek, Syracuse, NY
In memory of Paul A. Freund
Friends of ALI Barry N. Breen, Washington, DCPeter B Kutner, Norman, OKWilliam C. Lance, Sudbury, MACatherine Tift Porter, Washington, DC
In memory of Gray ThoronRoberta Casper Watson, Tampa, FL
Giving Circle Donors, Sustaining Life-Plus Donors, and Sustaining Life Donors are Sustaining Life Members for the 2016–2017 fiscal year. Donors as of June 1, 2016. The ALI Development Office has made every attempt to publish an accurate list of donors for the 1991 Life Member Class Gift campaign. In the event of an error or omission, please contact Kyle Jakob at (215) 243-1660 or [email protected]. This report is produced exclusively for the ALI community. The Institute prohibits the distribution of this booklet to other commercial or philanthropic organizations.
CLASS OF 1966Boris Auerbach Indianapolis, INAlbert I. Borowitz Cleveland, OHWayne Boyce Newport, ARPaul DeWitt Carrington Mitchellville, MDNorman Dorsen New York, NYRichard William Duesenberg St. Louis, MOB. J. George, Jr. Littleton, COYale Kamisar Ann Arbor, MIWilliam W. Karatz New York, NYM. Minnette Massey Coral Gables, FLRichard Sherman Milstein Boston, MASamuel A. Stern Washington, DC
CLASS OF 1991William T. Allen New York, NYR Gordon Appleman Fort Worth, TXJerald David August New York, NYDonald B. Ayer Washington, DCC. Randall Bain Phoenix, AZ
Jayne W. Barnard Williamsburg, VABruce H. Bokor Clearwater, FLLouis F. Bonacorsi St. Louis, MORichard A. Booth Villanova, PADavid M. Borden Hartford, CTBarry N. Breen Washington, DCRoy L. Brooks San Diego, CAPatricia A. Cain Santa Clara, CADavid L. Callies Honolulu, HIAlfred P. Carlton, Jr. Raleigh, NCGeorge J. Caspar, III Avon, CTWilliam R. Charyk Washington, DCWayne Dale Collins New York, NYJohn Cornyn Austin, TXDennis E. Curtis New Haven, CTRoger J. Dennis Philadelphia, PAWilliam V. Dorsaneo, III Dallas, TXRochelle C. Dreyfuss New York, NYStephen S. Dunham University Park, PAGail Erickson Brooklyn, NYArthur Norman Field New York, NYMartin L. Fried Sarasota, FLMarsha Garrison Brooklyn, NYBryant G. Garth Irvine, CAJerome A. Geis St. Paul, MNJoseph R. Gladden, Jr. Afton, VAWendy J. Gordon Boston, MAHervé Gouraige Newark, NJLinda Sheryl Greene Madison, WILinda Boyd Griffey Los Angeles, CARichard E. V. Harris Piedmont, CAJohn D. Hastie Norman, OKSheila Slocum Hollis Washington, DCHenry T. C. Hu Austin, TXRichard W. Hulbert New York, NYJoan K. Irion San Diego, CAVernon E. Jordan, Jr. Washington, DCMichael Alexander Kahn San Francisco, CARichard S. Kinyon San Francisco, CAKenneth N. Klee Los Angeles, CAHarvey C. Koch New Orleans, LALarry Kramer Menlo Park, CAWilliam F. Kroener, III Washington, DCPeter B Kutner Norman, OKWilliam C. Lance Sudbury, MADon G. Lents St. Louis, MODavid F. Levi Durham, NCBarbara B. Lewis Louisville, KYPeter Linzer Houston, TXMyles V. Lynk Tempe, AZNora M. Manella Los Angeles, CADiana Elizabeth Marshall Houston, TXArvin Maskin New York, NYRichard A. Matasar New Orleans, LA
SUMMER 2016 11
John J. McGregor Fresno, CAJohn J. McKetta, III Austin, TXJames A. Medford Greensboro, NCJohn F. Olson Washington, DCBarry R. Ostrager New York, NYDavid G. Owen Columbia, SCPeter M. Panken New York, NYCatherine Tift Porter Washington, DCNorman S. Poser Brooklyn, NYRobert C. Post New Haven, CTBurnele Venable Powell Columbia, SCRoberta Cooper Ramo Albuquerque, NMRichard L. Revesz New York, NYHugh E. Reynolds, Jr. Lake Worth, FLMary Robinson Dublin, IrelandSteven S. Rosenthal Washington, DCKeith E. Rounsaville Belle Isle, FLCharles W. Schwartz Houston, TX
Harold F. See Hendersonville, TNStephen E. Shay Cambridge, MAKarla W. Simon Washington, DCTheodore S. Sims Boston, MAAlison L. Smith Houston, TXSusan K. Smith Phoenix, AZKatherine Shaw Spaht Baton Rouge, LACharles Henry Still Houston, TXWillard B. Taylor New York, NYJohn C. Unkovic Pittsburgh, PADebra A. Valentine London, EnglandRobert Patrick Vance New Orleans, LAVaughn R. Walker San Francisco, CAManning Gilbert Warren III Louisville, KYRoberta Casper Watson Tampa, FLWilliam M. Wiecek Syracuse, NYSharon M. Woods Detroit, MIHenrietta Wright Dallas, TX
93rd Annual Meeting Members Reception and BuffetALI hosted a Members Reception at the Smithsonian National Air and Space Museum. The museum holds the world’s largest and most significant aviation and space artifact exhibition, encompassing all aspects of human flight, as well as related works of art and archival materials. This site is one of two landmark facilities that, together, welcome more than eight million visitors a year, making it the most visited museum in the country.
Members and guests gathered at the Smithsonian National Air and Space Museum for the annual Members Reception.
Carla and Stephen John Gageler of the High Court of Australia
CLASS OF 1991 CONTINUED FROM PAGE 11
12 THE ALI REPORTER
Annual DinnerMembers attended the Annual Dinner on the second night of the Annual Meeting. In addition to networking with new and old friends, members were treated to a speech from Geoffrey R. Stone of the University of Chicago Law School, who discussed the topic “Free Speech on Campus.”
Mary M. Schroeder of the U.S. Court of Appeals, Ninth Circuit; Kimberly J. Mueller of the U.S. District Court, Eastern District of California; and Marsha E. Simms of Weil, Gotshal & Manges LLP
Linda Sheryl Greene of University of Wisconsin Law School and Kim J. Askew of K&L Gates LLP
Geoffrey R. Stone
Martha Hill Jamison of the Texas Court of Appeals, Fourteenth District, and Matthew Christopher Powers of Graves, Dougherty, Hearon & Moody, PC
Steve Y. Koh of Perkins Coie LLP, Henry Weissmann of Munger Tolles & Olson LLP, and George T. Conway III of Wachtell, Lipton, Rosen & Katz
Douglas F. Gansler of Buckley Sandler LLP, Erik D. Bolog and C. Allen Foster, both of Whiteford Taylor Preston, LLP, and Mark D. Schneider of the International Association of Machinists and Aerospace Workers
Rueben C. Casarez of Wells Fargo & Co. and David M. Brodsky of Brodsky ADR LLC
VIEW MORE PHOTOS OF THE ANNUAL MEETING ONLINE AT WWW.ALI.ORG/ANNUAL-MEETING-2016/SLIDESHOW.
SUMMER 2016 13
Kevin J. Hamilton of Perkins Coie LLP greets dinner guests.
John Cruse Merchant of Dinsmore & Shohl LLP, Jennett Hill of Citizens Energy Group, and David D. Powell, Jr., of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Donald B. Verrilli, Jr., of the U.S. Department of Justice, Sally Katzen of NYU School of Law, and Robert M. Dow, Jr., of the U.S. District Court, Northern District of Illinois
Cheryl A. Krause of the U.S. Court of Appeals, Third Circuit, Abbe R. Gluck of Yale Law School, and Ilana H. Eisenstein of the U.S. Department of Justice
Linda Lea M. Viken of Viken & Riggins Law Firm, and Kristi Bowman of Michigan State University College of Law
Douglas K. Moll of the University of Houston Law Center, Jonathan G. Cedarbaum and Mark C. Fleming, both of Wilmer Cutler Pickering Hale and Dorr LLP, and Miles N. Ruthberg of Latham & Watkins LLP
Welcome to the Institute’s Newest MembersALI welcomed its newest members at two special events at this year’s Annual Meeting. New members gathered at a dinner the evening before the Annual Meeting kicked off, as well as at a luncheon the first day. Photos of the events can be found on these two pages.
14 THE ALI REPORTER
President Roberta Cooper Ramo and Secretary Paul L. Friedman talk to new members during Monday’s New Member Luncheon.
Edward J. Currie, Jr., of Currie Johnson Griffin & Myers, PA, Joy Lambert Phillips of the Hancock Holding Company, Shannon Raleigh, and Richard J.R. Raleigh, Jr., of Wilmer & Lee, P.A. Lloyd H. Mayer of Notre Dame Law School
Brent O. E. Clinkscale of Womble Carlyle Sandridge & Rice, LLP, and Paul Mogin of Williams & Connolly LLP
New members elected in October 2015 and January 2016
SUMMER 2016 15
There is a fine line between over-penalizing actions in an attempt to regulate behavior and not protecting victims of criminal abuse. As legal reformists, what actions can we take in order to maintain a fair balance?
We can include experienced, knowledgeable voices from both sides of the aisle. This is what makes our discussions at our project meetings both informative and interesting. The expression of often strong viewpoints from different perspectives facilitates thinking outside the box, encourages spirited discussion, and ultimately enhances our ability to propose intelligent, workable resolutions to the legal issues we discuss.
How long have you been playing the violin? Do you have a favorite piece; a favorite venue where you have performed? What excites you most about playing music?
I have been playing the violin since I was three years old. I have performed around the world, including everything from touring Europe with a classical symphony, to playing the electric violin with my rock band in Hollywood. Music provides a much-needed reprieve from practicing law.
Member Spotlight: Wendy L. PatrickDr. Wendy L. Patrick is a career trial attorney recognized by her peers as one of the 2015 Top Ten criminal attorneys in San Diego by the San Diego Daily Transcript, business-ethics professor, and rock violinist bringing a unique perspective to media commentary. She has completed over 160 trials ranging from hate crimes, to domestic violence, to first-degree murder.
She serves as an Adviser for the Model Penal Code: Sexual Assault and Related Offenses project and on the Members Consultative Group for the Project on Sexual and Gender-Based Misconduct on Campus: Procedural Frameworks and Analysis.
Where do you feel the MPC updates can be most helpful in clarifying current disputes in sexual-assault cases?
The highly researched intelligent discussion in the MPC updates highlights the tension within the laws of different states, and presents some of the unintended consequences of certain laws—which is highly persuasive evidence that some of the legal language needs to be changed. The updates are also helpful because they reveal both similarities and inconsistencies between laws governing different types of sexual assaults, which spurs useful discussion regarding how legal wording might be changed to both enhance and promote consistent application of the law.
What impresses you the most about the discussions you have participated in during the project meetings?
One of the most impressive aspects of the discussions at the project meetings is the level of knowledge and preparation among the participants. Everyone is so familiar with the material that discussion flows easily and at a high level of detail as we share perspective, experience, and practical experience. On this last point, practical experience and prospective application of the laws at issue is one of the most powerful components of the MPC discussion, as it showcases the reality of how specific fact patterns might produce unintended consequences under the current wording of some of the statutes at issue.
Do sentencing guidelines affect how you prosecute cases?
Absolutely.
If so, how does this affect the way sexual-assault crimes are graded in the MPC project?
One of the long-standing sentiments in the criminal law is that the punishment should fit the crime. Lady Justice may be blind, but she is also fair. Sentencing guidelines are useful in examining and discussing the level of punishment that corresponds with the behavior at issue.
As society’s behavior changes, so must the laws that regulate its behavior. In what ways can ALI’s projects (campus assault and sexual assault) help clarify the law in an ever-changing society?
By including the voices of a wide range of participants (academics, researchers, different types of lawyers, prosecutors) we can share our collective knowledge regarding how societal behavioral changes manifest themselves—as viewed through the lens of our professional experience.
16 THE ALI REPORTER
Sexual Assault New York, March 23
Torts: Intentional Torts to Persons Philadelphia, April 8
Government Ethics Philadelphia, March 24
Reporter Richard Briffault of Columbia Law School, and Associate Reporters Kathleen Clark of Washington University School of Law and Richard W. Painter of University of Minnesota Law School
ALI Director Richard L. Revesz with project Reporters Stephen J. Schulhofer and Erin E. Murphy, both of NYU School of Law
Reporter Kenneth W. Simons of University of California, Irvine School of Law, and Associate Reporter W. Jonathan Cardi of Wake Forest University School of Law
Ronald D. Lee of Arnold & Porter LLP shares his comments with fellow project participants.
Project participants engaged in discussion during the joint meeting
Richard W. Wright of IIT Chicago-Kent College of Law shares his remarks.
Nancy J. Moore of Boston University School of Law comments during the project meeting.
SUMMER 2016 17
Young Scholars Conference Examines the State of Aggregate Litigation Now and for the Future
The American Law Institute, together with NYU School of Law, recently hosted the ALI Young Scholars Medal Conference “The Future of Aggregate Litigation.” Organized by Elizabeth Chamblee Burch, a 2015 ALI Young Scholars Medal recipient and a professor at the University of Georgia School of Law, the conference featured leading scholars, as well as experienced class-action attorneys and judges.
Professor Burch, whose teaching and research interests include class actions and mass torts, assembled four panels to discuss the current state of aggregate litigation, which she considers to be in a state of flux. Over the last 15 years, the class-action landscape has shifted steadily, with Congress and the appellate courts making class certification more difficult through federal jurisdiction and a series of appellate decisions. Alongside other developments in arbitration, multidistrict litigation, and administrative agencies, these changes have pushed group litigation in new directions.
The conference addressed questions that courts and scholars are now grappling with about appropriate fora outside of Article III courts; how to coordinate litigants and resolve principal–agent problems without Rule 23’s judicial quality-control measures; how to square individuals’ participation opportunities with group decisionmaking; and what the future holds for aggregate litigation.
THE CONFERENCE DISCUSSION WAS STRUCTURED AROUND FOUR PANELS:
PANEL 1: AGGREGATE LITIGATION OUTSIDE OF ARTICLE III COURTS
Moderator: Alvin K. Hellerstein of U.S. District Court, Southern District of New York
Panelists: Kenneth R. Feinberg of Feinberg Rozen LLP; Deepak Gupta of Gupta Wessler PLLC; Robert L. Rabin of Stanford Law School; Catherine M. Sharkey of NYU School of Law
PANEL 2: JUDICIAL POWER AND ITS LIMITS IN MULTIDISTRICT LITIGATION
Moderator: Lee H. Rosenthal of U.S. District Court, Southern District of Texas, ALI Second Vice President
Panelists: John H. Beisner of Skadden Arps; Eduardo C. Robreno of U.S. District Court, Eastern District of Pennsylvania; William B. Rubenstein of Harvard Law School; Sarah S. Vance of U.S. District Court, Eastern District of Louisiana
PANEL 3: INDIVIDUALS WITHIN THE AGGREGATE
Moderator: Arthur Raphael Miller of NYU School of Law
Panelists: Robert G. Bone of University of Texas School of Law; Howard M. Erichson of Fordham University School of Law; Alvin K. Hellerstein of U.S. District Court, Southern District of New York; Jay Tidmarsh of Notre Dame Law School; Tom R. Tyler of Yale Law School
PANEL 4: THE FUTURE OF GROUP LITIGATION
Moderator: John C. Coffee, Jr., of Columbia Law School
Panelists: Elizabeth J. Cabraser of Lieff Cabraser; Samuel Issacharoff of NYU School of Law; Margaret H. Lemos of Duke Law School; Judith Resnik of Yale Law School
ADDITIONAL ATTENDEES
John M. Barkett – Shook, Hardy & Bacon LLPSheila L. Birnbaum – Quinn Emanuel Urquhart & Sullivan, LLPAllen D. Black – Fine, Kaplan and Black, RPCOrran Brown, Sr. – BrownGreer PLCOrran Brown, Jr. – BrownGreer PLCRoberta Cooper Ramo – ALI PresidentRobert M. Dow, Jr. – U.S. District Court, Northern District
of IllinoisThomasenia P. Duncan – Judicial Panel on Multidistrict
LitigationEldon E. Fallon – U.S. District Court, Eastern District
of Louisiana
Elizabeth Chamblee Burch
18 THE ALI REPORTER
The Institute in the Courts: State Supreme Courts Adopt Sections of Torts ThirdThe highest courts of two states recently adopted sections of the Third Restatements of Torts. Summaries of those cases are provided below.
In Nielsen ex rel. C.N. v. Bell ex rel. B.B., 2016 WL 1178392 (March 24, 2016), the Supreme Court of Utah adopted Restatement Third of Torts: Liability for Physical and Emotional Harm § 10. The case was brought by a babysitter who was blinded in one eye when her four-year-old charge threw a rubber toy at her. The plaintiff brought a negligent-supervision claim against the child’s parents and a negligence claim against the child. The trial court granted the parents’ motion for summary judgment but denied the child’s motion for summary judgment, concluding that “it could not find as a matter of law that the boy was incapable of negligence.” On interlocutory review, the Supreme Court of Utah reversed the order denying summary judgment for the child and adopted the rule of § 10 that children under the age of five could not be held liable for negligence. The court stated that “the [R]estatement rule is consistent with the rule adopted by the majority of states, which holds that children under the age of at least five (several states have a higher age limit) may not be held liable for negligence.” It also observed that a “number of policy considerations support the [R]estatement rule,” noting, among other things, that “[c]hildren under the age of five have a limited capacity to appreciate how their actions can cause harm to themselves or others and have an inadequate internal ability to control impulses that may lead to injuries.”
In Safeway, Inc. v. Rooter 2000 Plumbing and Drain SSS, 368 P.3d 389 (2016), the Supreme Court of New Mexico adopted Restatement Third of Torts: Apportionment of Liability § 22. The case arose out of negligence claims brought by a mother and her child who were injured when a changing table collapsed in a Safeway grocery store. The plaintiffs brought negligence claims against both the store and the plumbing company that installed the changing table; they settled their claims with the plumbing company, but the claims against the store went to trial. The trial court entered judgment on a jury verdict for the plaintiffs and awarded damages, but found the store to be only 40 percent negligent and the plumbing company to be 60 percent negligent. Consequently, the store brought a cross-claim for, among other things, traditional indemnification against the plumbing company. The trial court granted the plumbing company’s motion for summary judgment and dismissed that claim. The court of appeals reversed. Reversing the decision of the court of appeals and affirming the trial court’s dismissal of the cross-claim, the Supreme Court of New Mexico held that “traditional indemnity [was] not applicable in this case because Plaintiffs clearly advanced, and the jury found, theories of liability that alleged Safeway to be an active tortfeasor.” The court explained that it would adopt § 22 of the Restatement “because it correctly limits the application of traditional indemnity to cases truly premised on vicarious or derivative liability.”
The Institute is currently working on other portions of the Restatement Third of Torts—Restatement Third, Torts: Intentional Torts to Persons, and Restatement Third, Torts: Liability for Economic Harm. To join the Members Consultative Group for these or other projects, visit the projects page on the ALI website at www.ali.org/projects.
Brian T. Fitzpatrick – Vanderbilt University Law School
Tracey E. George – Vanderbilt University Law School
J. Maria Glover – Georgetown Law CenterWilliam F. Highberger – Superior Court of
California, County of Los AngelesLaura J. Hines – University of Kansas
School of LawEllen Segal Huvelle – U.S. District Court,
District of ColumbiaMary Kay Kane – University of California,
Hastings College of the LawCarolyn B. Kuhl – Superior Court of California,
County of Los AngelesEmery G. Lee – Federal Judicial CenterRichard L. Marcus – University of California,
Hastings College of the LawFrancis E. McGovern – Duke Law School Troy A. McKenzie – U.S. Department of Justice,
Office of Legal CounselStephanie A. Middleton – ALI Deputy DirectorAlan B. Morrison – George Washington
University Law SchoolLinda S. Mullenix – University of Texas
School of LawCatherine D. Perry – U.S. District Court, Eastern
District of MissouriAndrew J. Pincus – Mayer BrownR. David Proctor – U.S. District Court, Northern
District of AlabamaD. Theodore Rave – University of Houston
Law CenterRichard L. Revesz – ALI DirectorShira A. Scheindlin – U.S. District Court,
Southern District of New YorkAnthony J. Scirica – U.S. Court of Appeals,
Third CircuitMichael N. Simkovic – Seton Hall Law SchoolThomas W. Thrash – U.S. District Court,
Northern District of GeorgiaJohn M. Vittone – Foreign Service
Grievance BoardMargaret S. Williams – Federal Judicial CenterPatrick Woolley – University of Texas
School of LawJoel O. Wooten, Jr. – Butler Wooten Cheeley
& Peak LLPAdam Zimmerman – Loyola Law School,
Los AngelesBenjamin C. Zipursky – Fordham University
School of Law
NOTICE TO DEANS: YOUNG SCHOLARS MEDAL NOMINATIONS NOW OPEN
SUMMER 2016 19
George Bermann, Reporter of the International Commercial Arbitration Restatement Project, Speaks in Atlanta and New York By Life Member Dorothy Toth Beasley
On the morning of Friday, February 26, Professor George A. Bermann of Columbia Law School walked from his hotel to the sparkling new building of Georgia State University College of Law in Atlanta. Waiting for him was a group of some 42 people who had assembled for breakfast to hear his presentation on the current Restatement of the Law, The U.S. Law of International Commercial Arbitration.
The event was jointly sponsored by The American Law Institute, the Atlanta International Arbitration Society, the Atlanta Center for International Arbitration and Mediation, and the State Bar of Georgia Sections on Dispute Resolution and International Law as well as its Standing Committee on Judicial Procedure and Administration/Uniform Rules. The venue was sponsored by the Jones Day law firm. Thanks to ALI President Roberta Cooper Ramo and ALI Deputy Director Stephanie A. Middleton, the ALI generously sponsored Professor Bermann. Each sponsoring organization was represented on the event committee; the ALI members were Dorothy Toth Beasley, Chair, James Cecil Nobles, Jr., Stephanie E. Parker, and Richard Blum Herzog, Jr. Other members were State Bar representatives Foy R. Devine, Adam Sutton, and Gregg Notte. Assisting in organizing and carrying out the event were Derrick Stanley (State Bar); Shelby R. Grubbs, Magaly Cobian, and Grace Ha (ACIAM and AtlAS); Ben Greer (AtlAS); and Beth Goldstein and Jane E. Giacinto (ALI).
The presentation began with an introduction to the Restatement, including the reasons for its being commissioned, its coverage, its architecture, and its time line. Professor
Bermann pointed out that a particularly interesting aspect of the project is its attempt to achieve a balance between fidelity to basic existing principles and strategic elements of innovation.
As described by Professor Bermann, the Restatement (composed of black letter, Comments, and Reporters’ Notes, which were sent in advance to registrants) consists of five Chapters dealing with definitions, enforcement of the arbitration agreement, judicial assistance to the arbitral proceedings, post-award relief—notably set aside, recognition, and enforcement—and investor–State arbitration.
The focus across the Chapters, Professor Bermann said, is the role of U.S. courts in all circumstances in which they are confronted with international arbitration agreements, proceedings, and awards, that is, the judicial role in the international arbitration life-cycle.
Given the magnitude of the project and the exceptionally large number of matters covered in it, Professor Bermann focused on two sets of issues: (1) those that generated considerable debate and on occasion controversy, and (2) those on which the Restatement position deviates to some extent from prevailing law.
Questions were raised from the floor, and afterwards a number of people discussed the project further with Professor Bermann before he was given a tour of the new Center, which is housed at the law school. He then also visited Emory University School of Law before returning to New York.
Thereafter, Stephanie Parker, a partner at Jones Day in Atlanta and Practice Leader in Business and Tort Litigation, proposed that the program be repeated for the benefit of ALI members and others interested in the field in New York. Her suggestion was received with
ALI members George A. Bermann, Dorothy Toth Beasley, and event organizer Charles R.A. Morse at the NYC event held on April 14
20 THE ALI REPORTER
ALI Spring Events – Thank You.The American Law Institute recently held members receptions in Dallas, Miami, Tampa, Burlington, Boston, and San Francisco to give our members an opportunity to connect with other members in their regions and to hear remarks from esteemed judges who have been involved with ALI’s work for many years.
These receptions are terrific events that combine socializing, networking, and good food and drink with a substantive discussion about ALI’s work and the exciting new projects launched this year.
ALI President Roberta Cooper Ramo and Director Richard L. Revesz attended the receptions and appreciated the opportunity to meet and talk with members around the country. As Director Revesz stated,
“ALI is extremely grateful for the generosity of our members and their firms for hosting these gatherings and engaging such wonderful speakers. At each reception, I had the opportunity to participate in thoughtful discussions about the Institute’s work and was deeply impressed with the commitment of our members to our mission.”
THE INSTITUTE WISHES TO THANK EVERYONE WHO HELPED TO MAKE THESE IMPORTANT EVENTS A SUCCESS, PARTICULARLY THE HOSTS AND SPEAKERS:
K&L Gates LLP in Dallas, especially partner Kim J. Askew, and our speaker Judge David C. Godbey of the U.S. District Court, Northern District of Texas.
Astigarraga Davis in Miami, especially partner José I. Astigarraga and our speakers, Judge Kathleen M. Williams of the U.S. District Court, Southern District of Florida, and Judge Adalberto J. Jordan of the U.S. Court of Appeals, Eleventh Circuit.
Carlton Fields Jorden Burt, P.A., in Tampa, especially partner Gary L. Sasso, and our speakers, Judge James S. Moody, Jr., of the U.S. District Court, Middle District of Florida, and Judge Nelly N. Khouzam of the Florida Second District Court of Appeal.
University of Vermont in Burlington, especially President E. Thomas Sullivan, and our speaker ALI Director Richard L. Revesz of NYU School of Law.
Choate, Hall & Stewart LLP in Boston, especially chairman John A. Nadas, and speakers Judge Patti B. Saris of the U.S. District Court, District of Massachusetts, and Chief Justice Ralph D. Gants of the Massachusetts Supreme Judicial Court.
JAMS in San Francisco, especially Steven A. Brick (Ret. Judge), and speakers Justice Leondra R. Kruger and Justice Goodwin Liu, both of the Supreme Court of California.
IF YOU ARE INTERESTED IN HOSTING A RECEPTION OR LUNCHEON, PLEASE CONTACT MEMBERSHIP DIRECTOR BETH GOLDSTEIN AT [email protected].
enthusiasm by Stephanie Middleton. So, with the gracious acceptance of Professor Bermann and led by New York Jones Day partner Charles R.A. Morse, a member of ALI, the program was held at Jones Day’s offices on the late afternoon of April 14. Mr. Morse was assisted by Jones Day business development and communications coordinator William Sleight IV. Jane Giacinto of ALI provided written ALI materials for distribution, as in Atlanta. Other organizations involved were the New York International Arbitration Center, the International Arbitration Club of New York, the Columbia Law School’s Center for International Commercial and Investment Arbitration, and NYU School of Law’s Center for Transnational Litigation, Arbitration, and Commercial Law.
About 100 reservations were made and, although some folks had to cancel, 65 attended, including both domestic and foreign practitioners, academics, judges, and law students.
Professor Bermann, who had just returned from consulting in Bangkok, again presented a lively, clear and concise, thought-provoking picture of the Restatement project, as evidenced by the attentiveness of the audience and questions and comments afterwards. He focused on certain portions of the Restatement that were particularly controversial or of special significance.
Since Stephanie Parker was in Tennessee to receive a Distinguished Alumna Award from Vanderbilt Law School, I was thrilled to have the honor of representing the ALI at the event. It was a joy to introduce Professor Bermann and to first set the stage by describing the ALI’s mission, the scope of its work, and some of its current projects.
THE NEXT PROJECT MEETING FOR RESTATEMENT OF THE LAW, THE U.S. LAW OF INTERNATIONAL COMMERCIAL ARBITRATION, WILL BE HELD ON OCTOBER 26, 2016.
Visit www.ali.org/projects to access drafts and comments or to join the project’s Members Consultative Group.
SUMMER 2016 21
those in between were expressed eloquently during our debate. This project demonstrates how we use the best thinking on all sides in coming to approve language that becomes the official position of the ALI, as opposed to the language in our drafts. There has been significant work for years by the Reporters, the Advisers to the project, the Members Consultative Group, and by the Council in trying to come to consensus about just what constitutes consent when there are allegations of sexual assault. (You can go to the website at www.ali.org/projects for the actual language that was passed with a Boskey motion.) In all of our projects the drafts improve after each meeting, as I think is true in this case.
We are a bicameral institution and the language on sexual assault presented to the members with the Council’s approval was revised on the floor during the Annual Meeting in response to a number of amendments to reach the language that passed. Thus the language approved will come back to the Council at the October meeting for its discussion and vote. I believe that the thoughts of both sides are represented in language that rejected affirmative consent, but approved contextual consent. Importantly, the members did not reject moving forward with this project, which would have left us in the position of having nothing to replace the completely inappropriate language of the 1962 MPC. As we undertook this project, no one thought it would be easy, but true to our mission we are on the way toward a great improvement in the sexual-assault portions of the MPC. The black letter and the entire work will be an important help to our state and federal legal systems as they grapple with this important social-justice issue.
Hard as the discussion was, many of our new members told us that they were inspired by the spirited, informed discussion and the civility with which the debate was carried on. Everyone there, whether they went to the microphone or not, left with a far better understanding of the issues in this area after hearing the varying points of view.
The Membership Committee just completed the first round of reviews for this new fiscal year. We still have some geographic and diversity challenges that we are working on with our Regional Committees. Remember that the next deadline for nomination is September 15, 2016. We continue to find that our confidential process is working splendidly and that the nominees, when called, are honored and delighted to become members of the ALI. Also, remember when thinking about a nomination that we want people who will engage in one or more of the projects and come to the Annual Meeting to join in our review and debate of each of the projects presented. If you have any questions about how to nominate or who to nominate, please email Beth Goldstein at [email protected] and she will be happy to help.
This paragraph originally written a few days ago began, “Finally.” But terrible events have intervened. I still want to note the importance to our country of each of us standing up for the independence of the judiciary and against attacks on any judge because of race, religion, or gender. As members of the bar, we know that judges simply cannot in any way defend themselves when publically attacked. As officers of the court, each of us is responsible for responding when there are erroneous charges against a judicial officer or the system itself. What is currently deeply troubling to me is that the constant drumbeat of attacks on judges with the idea that any judge cannot be neutral because of their race, religion, or gender undermines respect for the American legal system. Our fellow citizens, if they hear nothing else, will lose sight of what the Constitution really says and what our history demands of the judicial branch. Our founders were brilliant as they designed the architecture of a democracy for a country with many people from different religious and geographic backgrounds. The third branch of government, the judiciary, right from the beginning was to offer all people, no matter who they were, a civil, neutral forum in which to have their disputes heard. The American Law Institute was designed to improve and modernize the law in the same spirit. Those of us honored with ALI membership must do our part every day to educate and combat misinformation, even if that is an uncomfortable act in some settings.
Our civil and learned conversation about difficult matters and our coming to consensus stand as a template for what is needed now to solve whatever problems we have as a nation. Our privilege of profession and of our learned membership require that we not be silent citizens in the conversations around us.
Today, I write against the destructive act of terror inflicted upon so very many simply ending a weekend night of happy relaxation. In shock and horror, we must not let people look for or make up answers that undermine the most basic tenets of our Constitution and Bill of Rights. Here too we need not only moments of silence, but also moments of speaking in opposition to hate based on religion.
I just drove from Colorado through Northern New Mexico back home. The sky vast and beautiful, the light penetrating everything even hearts, reminds me that our luck at living in the USA must be repaid by daily dedication to American ideals, by actions of citizen lawyers, like those who dreamt up this wonderful country.
Roberta
Roberta Cooper Ramo President
THE PRESIDENT’S LETTER CONTINUED FROM PAGE 1
22 THE ALI REPORTER
Notes About Members and ColleaguesOn April 21, Mark David Agrast, executive director and executive vice president of the American Society of International Law, and Marcia Devins Greenberger, founder and Co-President of the National Women’s Law Center, both received the inaugural Civil Rights Hero Award of the American Bar Association Section of Civil Rights and Social Justice. The award, presented during the Section’s national 50th anniversary celebration, recognizes an individual or group whose sustained commitment to civil rights and social justice has advanced the ABA’s mission of providing leadership to the legal profession in protecting and advancing human rights, civil liberties, and social justice.
Effective August 1, Michelle J. Anderson, dean at the City University of New York School of Law, will become the 10th president of Brooklyn College.
Luke Bierman, dean at Elon University School of Law in North Carolina, wrote an op-ed published in The Wall Street Journal in May. His piece, “Eight Justices Won’t Do—but Six Were Fine for 1789,” examines the current impasse over the next Supreme Court justice.
In April, Boston College Law School professor Mary Sarah Bilder was honored when her book, Madison’s Hand: Revising the Constitutional Convention (Harvard University Press 2015) was awarded the 2016 Bancroft Prize, which is awarded annually by the trustees of Columbia University. The book was deemed an extraordinary work, demonstrating “excellence in research, writing, and thought.” Professor Bilder has also been appointed the Founders Professor of Law; a public lecture and reception marking the appointment will be held this fall.
In April, Amelia H. Boss of Drexel University Thomas R. Kline School of Law received the Homer Kripke Achievement Award. The award, bestowed by the American College of Commercial Finance Lawyers, is given to individuals who have changed the course of commercial finance law and practice.
Curtis A. Bradley of Duke Law School, a Reporter for Restatement of the Law Fourth, The Foreign Relations Law of the United States – Treaties, has been named a 2016 Andrew Carnegie Fellow. He is the first Duke University scholar to receive this honor.
The following ALI members have been elected fellows of the American Academy of Arts and Sciences: Erwin Chemerinsky, dean of the University of California, Irvine School of Law; Antonia Hernandez, president and CEO of the California Community Foundation; M. Elizabeth Magill, dean of Stanford Law School; Trevor W. Morrison, dean of NYU School of Law; and Joel Seligman, president and CEO of the University of Rochester. The new class will be inducted at a ceremony on October 8, in Cambridge, MA.
Christopher R. Drahozal of the University of Kansas School of Law, an Associate Reporter for the Institute’s Restatement of the Law, The U.S. Law of International Commercial Arbitration, gave the inaugural Hendrix lecture, established by the Atlanta International Arbitration Society, at Emory University School of Law.
Michael R. Dreeben, deputy solicitor general of the U.S. Department of Justice, recently presented his 100th oral argument before the Supreme Court of the United States. He is only the second person to reach that milestone in this century.
Bryan K. Fair of the University of Alabama School of Law was the keynote speaker at Alabama State University’s Distinguished Lecture Series, discussing the topic “The Continuing Challenges of Our Democracy: Securing Equality for All.”
Paul L. Friedman, Judge of the U.S. District Court for the District of Columbia and ALI’s Secretary, has been featured in The Washington Post for his involvement in the early release of Byron Lamont McDade, who had been serving a 27-year prison sentence after being convicted in 2002 for his connection to a D.C. drug conspiracy.
Justice Anne Gardner is the 2015 recipient of the Samuel Pessarra Outstanding Jurist Award given by the Texas Bar Foundation. The Foundation established the award in 1987 to honor an active federal or state judge who exhibits an “exceptionally outstanding reputation for competency, efficiency and integrity.”
Amelia H. Boss receives the Homer Kripke Achievement Award.
continued on page 24
Anne Gardner receives the Samuel Pessarra Outstanding Jurist Award.
SUMMER 2016 23
Merrick Brian Garland, Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, has been nominated by President Obama to succeed Associate Justice Antonin Scalia, who died on February 13, to the U.S. Supreme Court.
In May, William C. Hubbard, a partner of Nelson Mullins Riley & Scarborough LLP in Columbia, SC, became the first recipient of the Burton Award for Leadership in Law. The award recognizes his unprecedented leadership to the legal profession and for advancing the rule of law during his service as the immediate past president of the ABA.
In April, ALI Treasurer Wallace B. Jefferson, former chief justice of the Texas Supreme Court and a partner in the Austin office of Alexander Dubose Jefferson & Townsend LLP, received one of the 2016 Presidential Citations from Gregory L. Fenves, the president of the University of Texas at Austin. The citations recognize the extraordinary contributions of individuals who personify the university’s commitment to transforming lives.
Professor Randall L. Kennedy of Harvard Law School spoke at the Presidential Forum on Diversity hosted by Union College in Schenectady, NY, on April 27. His presentation was titled “The Racial Promised Land? Creating a Racially Just Social Order.”
Professor Ronald J. Krotoszynski of the University of Alabama School of Law has authored a new book: Privacy Revisited: A Global Perspective on the Right to Be Left Alone (Oxford University Press 2016).
Presiding Judge Carolyn B. Kuhl of the Los Angeles Superior Court was the keynote speaker at the Fourth Civil Justice Reform Summit, hosted by the Institute for the Advancement of the American Legal System, on the University of Denver campus. She spoke about her court’s experiments in innovative case management.
The Maine Community College System has appointed Derek P. Langhauser
as its next president. Mr. Langhauser, who has served as the system’s lawyer for over 20 years, had been interim president since February 2015.
Nevada Governor Brian Sandoval has appointed Professor Francine J. Lipman of the University of Nevada, Las Vegas, William S. Boyd School of Law to the Nevada Tax Commission, effective immediately, for a term that will expire in October 2019.
Professor Ann M. Lousin of the John Marshall Law School in Chicago was honored by the Illinois State Historical Society for her writing on Illinois constitutional law. This is the fifth year that she has been honored by ISHS.
Gerard E. Lynch with Vilia B. Hayes, President of the Federal Bar Council and a partner at Hughes Hubbard & Reed LLP
Carolyn B. Kuhl speaks at the Fourth Civil Justice Reform Summit.
Margaret Colgate Love has written an op-ed in The New York Times titled “Modify Prison Sentences.” Her letter to the editor responds to an editorial that was previously published titled “Mr. Obama’s Pardon Problem,” which suggests removing the clemency process from the grip of the Justice Department in order to solve the president’s pardon problem.
Gerard E. Lynch of the U.S. Court of Appeals for the Second Circuit has been awarded the Federal Bar Council’s Learned Hand Medal for Excellence in Federal Jurisprudence. The award was presented at the Council’s Annual Law Day Dinner, held on May 3rd in New York City.
In May, Margaret H. Marshall, senior counsel of Choate, Hall & Stewart LLP, the first female chief justice of the Massachusetts Supreme Judicial Court, and the first woman to be general counsel of Harvard University, has been inducted into the Academy of Distinguished Bostonians by the Greater Boston Chamber of Commerce.
At a reception at the U.S. Supreme Court on March 31, in honor of Justice Ruth Bader Ginsburg, Judge M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit presented the 2016 American Bar Association Rule of Law Award to Justice Ginsburg for her commitment to the global advancement of the rule of law.
Professor Melissa E. Murray of the University of California, Berkeley School of Law, an Adviser on the Project on Sexual and Gender-Based Misconduct on Campus: Procedural Frameworks and Analysis, has been named interim dean of the law school.
The Minnesota Vikings have named Karin Nelsen Vice President of Legal and Human Resources. She previously served as Law Vice President and North America General Counsel for Cargill, Inc.
Professor Camille A. Nelson of Suffolk University Law School in Boston has been named dean of American University Washington College of Law. Her appointment begins July 25.
In April, President Obama nominated Kathleen M. O’Sullivan, a partner and
NOTES ABOUT MEMBERS AND COLLEAGUES CONTINUED FROM PAGE 23
24 THE ALI REPORTER
co-chair of the appellate practice at Perkins Coie LLP in Seattle, to serve on the United States District Court for the Western District of Washington.
An article written by Richard W. Painter of the University of Minnesota Law School, an Associate Reporter for Principles of the Law, Government Ethics, has been featured in The New York Times. The piece, “The Conservative Case for Campaign-Finance Reform,” urges Republican candidates to address the topic of campaign-finance reform during this election.
Judge Florence Y. Pan of the District of Columbia Superior Court has been nominated by President Obama to serve on the U.S. District Court for the District of Columbia. If confirmed, she will be the first Asian Pacific American woman to serve as a federal district court judge in the District of Columbia.
In April, during the 2016 Founders Circle Dinner, Stephanie E. Parker, a partner at Jones Day in Atlanta and Practice Leader in Business and Tort Litigation, received the Distinguished Alumna Award from Vanderbilt Law School.
Robert L. Parks, principal and founding partner of The Law Offices of Robert L. Parks in Miami, has become a member of the Board of Trustees for the National Judicial College.
R. Ashby Pate, the youngest justice in the history of the Supreme Court of the Republic of Palau, an island nation located in the western Pacific Ocean, has resigned from the court to return to the firm of Lightfoot, Franklin & White LLC, in Birmingham, Alabama, as Of Counsel. He gave a rousing presentation during the American College of Trial Lawyers Spring Meeting in Maui, Hawaii. In his speech, titled “Be the Light,” he recounted the success of the ACTL symposium in Palau and challenged the College to continue to commit to champion pro bono work of the kind it accomplished there.
In April, ALI President Roberta Cooper Ramo presented keynote remarks at the ABA Criminal Justice Section’s 2016 Spring Meeting in Albuquerque, NM. The topic for the conference was “Neuroscience: Paving the Way for Criminal Justice Reform!” Judge Bernice Bouie Donald of the U.S. Court of Appeals for the Sixth Circuit was the opening and closing speaker. Judge Andre M. Davis of the U.S. Court of Appeals for the Fourth Circuit served as a moderator.
In April, the Anti-Defamation League bestowed upon Vinson & Elkins partner Harry M. Reasoner of Houston the 2016 Karen H. Susman Jurisprudence Award. The award is given to an outstanding member of the legal community who exhibits an exceptional commitment to equality, justice, fairness, and community service.
On March 28, Fred A. Rowley, Jr., of Munger Tolles & Olson LLP delivered oral argument before the U.S. Supreme Court in Betterman v. Montana, No. 14-1457.
Patricia E. Salkin, dean of Touro College Jacob D. Fuchsberg Law Center, has been named Provost for the Graduate and Professional Division at Touro College. She will step down as dean on July 31.
Former United States District Court Judge Shira A. Scheindlin of the Southern District of New York has joined the Litigation Practice Group of Stroock & Stroock & Lavan LLP as Of Counsel to the firm. She also serves as an arbitrator/mediator under the auspices of JAMS, a global panel of retired judges and attorneys who resolve complex disputes.
In May, the Pennsylvania Bar Association Commission on Women in the Profession presented the Anne X. Alpern Award to Senior U.S. District Judge for the Eastern District of Pennsylvania Norma L. Shapiro, who was the first woman to be appointed to that district’s court. The award is given annually to a female lawyer or judge who demonstrates excellence in the legal profession and who makes a significant professional impact on women in the law.
Harvard Law School Professors Robert H. Sitkoff, who serves as an Adviser on Restatement of the Law, Charitable Nonprofit Organizations, and Restatement of the Law Third, Conflict of Laws, and Jeannie Suk, who is an Adviser for
Model Penal Code: Sexual Assault and Related Offenses, took part in Harvard Law School’s “Last Lecture Series.” The series is an opportunity for selected faculty members to impart final words of wisdom on the graduating class.
Professor Christopher Jon Sprigman of NYU School of Law, the Reporter for Restatement of the Law, Copyright, and a team of students at the law school have compiled The Indigo Book: A Manual of Legal Citation (Public Resource 2016)—a free, Creative Commons-dedicated implementation of The Bluebook’s Uniform System of Citation. A PDF version of the book is available at law.resource.org/pub/us/code/blue/IndigoBook.pdf.
Professor Kate Stith of Yale Law School, an Adviser for ALI’s Model Penal Code: Sentencing project, testified before the U.S. Sentencing Commission about the sentence reduction mechanisms that have been endorsed by ALI, focusing in particular on Model Penal Code: Sentencing § 305.7 (Tentative Draft No. 2, 2011), which deals with modification of prison sentences in circumstances of advanced age, physical or mental infirmity, exigent family circumstances, or other compelling reasons.
Professor Geoffrey R. Stone of the University of Chicago Law School, who spoke about free speech on campus at this year’s Annual Dinner and who serves as an Adviser for Principles of the Law, Police Investigations, was featured on a recent episode of “Amicus with Dahlia Lithwick,” a podcast program about the law and the nine Supreme Court justices who interpret it for the rest of America.
Mary-Christine Sungaila, a partner in the Orange County office of Haynes and Boone, LLP has received her second consecutive California Lawyer of the Year Award for her work on a Ninth Circuit asylum appeal for a transgender woman.
If you would like to share any recent events or publications in the next ALI newsletter, please email us at [email protected].
In MemoriamELECTED MEMBER
Ralph I. Knowles, Atlanta, GA
LIFE MEMBERS
Robert Anthoine, New York, NY; Carl A. Auerbach, La Jolla, CA; Bennett Boskey, Washington, DC; Ralph Adam Fine, Milwaukee, WI; Shirley M. Hufstedler, Los Angeles, CA; David M. Lascell, Rochester, NY; Robert MacCrate, New York, NY; J. Eugene Marans, Washington, DC; Arthur W. Murphy, New York, NY; Richard C. Pugh, San Diego, CA; L. David Shear, Tampa, FL; Gray Thoron, Ithaca, NY; Richard C. Wydick, Davis, CA
SUMMER 2016 25
In MemoriamRobert MacCrate
Robert MacCrate, a former president of the American Bar Association, and an emeritus member of ALI’s Council, died on April 6. A senior counsel and retired partner at Sullivan & Cromwell in New York City, he was 94.
As ABA president from 1987 to 1988, he established the Commission on
Women in the Profession to assess the status of women in the profession, identify problems, and recommend action. He later chaired the ABA Task Force on Law Schools and the Profession,
which in 1992 issued a groundbreaking report—known as the MacCrate Report—that recognized the need for a continuum of legal education and professional development throughout a lawyer’s professional life and called for a practice-oriented approach to legal education.
In 2001, Mr. MacCrate received the ABA Medal, the ABA’s highest honor, for exceptionally distinguished service to American jurisprudence. Among other honors, he was also the recipient of the New York State Bar Association’s highest recognition, the State Bar Gold Medal, and the New York Bar Foundation’s inaugural Lifetime Achievement Award.
A member of the ALI since 1968, he was elected to its Council in 1975 and served on ALI’s Executive Committee for 25 years (1977-2002). He took Council emeritus status in 2007.
Bennett Boskey
Harold E. Kahn, husband of Mr. Boskey’s niece, Lisa, and Judge of the Superior Court of California, began the service by talking about Mr. Boskey’s dedication to his family and the law. “Bennett was an A+ man at a time when A+ was reserved for the very few.” Judge Kahn reminisced about watching Mr. Boskey work, surrounded by heaps of various legal documents. “To watch him was to watch a pro at work every bit as much as watching Michael Jordan shoot hoops or Tiger Woods putt golf balls.”
Additional speakers included: ALI President Roberta Cooper Ramo; ALI Director Emeritus Lance Liebman; Professor Ross E. Davies, editor-in-chief of The Green Bag, An Entertaining Journal of Law, and ALI member; Richard G. Kief, senior vice president and chief philanthropy officer of MedStar Washington Hospital Center; and Lisa Ludwig Kahn, Mr. Boskey’s niece.
An ALI member since 1951, Mr. Boskey was elected to the Institute’s Council in 1972. His dedicated service as ALI’s Treasurer for 35 years (1975 to 2010) far exceeds the tenure of any other ALI officer. According to membership records, through 2011, Mr. Boskey had not missed an Annual Meeting in more than 50 years. Since at least 1971, his signature “Boskey motion,” precisely capturing a draft’s procedural status, has concluded the discussion of the draft and set the scene for its approval by the membership at the Annual Meeting.
Please visit ALI’s website to learn more about Mr. Boskey’s career and contribution to ALI, including a video tribute.
ON TUESDAY, MAY 17, DURING THE ANNUAL MEETING, ALI HOSTED A MEMORIAL SERVICE FOR BENNETT BOSKEY, WHO PASSED AWAY ON MAY 12. HE WAS 99.
26 THE ALI REPORTER
Elizabeth GarrettElizabeth Garrett, a distinguished legal scholar and the first woman to be president of Cornell University, died of colon cancer at her home in Manhattan on March 6, just eight months into her presidency. President Garrett, a member of ALI’s Council, was 52.
Born in Oklahoma City in 1963, Helen Elizabeth Garrett received her B.A. in history with special distinction from the University of Oklahoma and her J.D. from the University of Virginia School of Law, where she was chosen for Order of the Coif. She clerked for Justice Thurgood Marshall of the U.S. Supreme Court, and Judge Stephen F. Williams of the U.S. Court of Appeals for the District of Columbia Circuit.
President Garrett served as provost and senior vice president for academic affairs at the University of Southern California from 2010 to 2014. Prior to joining USC, she was a professor of law at the University of Chicago from 1995 to 2003, where she also served as deputy dean for academic affairs. Earlier, she was a legal adviser at the Iran–United States Claims Tribunal at The Hague and legislative director and tax and budget counsel for Senator David L. Boren of Oklahoma. She also taught law as a visiting professor at Harvard Law School, the University of Virginia School of Law, the California Institute of Technology, Central European University in Budapest, and the Interdisciplinary Center Law School in Israel.
An ALI member since 2008, President Garrett was elected to the Institute’s Council in 2014 and was appointed last May to the Governance Committee. She also served as an Adviser for ALI’s Principles of the Law of Government Ethics and its Project on Sexual and Gender-Based Misconduct on Campus: Procedural Frameworks and Analysis.
Shirley HufstedlerJudge Shirley Ann Mount Hufstedler, the first woman to serve on the U.S. Court of Appeals for the Ninth Circuit, passed away on March 30, at the age of 90.
Nominated by President Lyndon B. Johnson, Judge Hufstedler joined the Ninth Circuit in 1968. She was the second woman to be appointed to a federal appellate court and, for most of her 11-year tenure, she was the nation’s only female federal appellate judge.
She left the bench in 1979 and became the nation’s first U.S. Secretary of Education under President Jimmy Carter and later practiced with Morrison & Foerster for more than 20 years.
Born in Denver, Judge Hufstedler completed her undergraduate work at the University of New Mexico and earned her law degree from Stanford Law School in 1949.
She was elected to The American Law Institute in 1969 and served on the Council from 1974 to 1984.
TO READ MORE ON THESE MEMBERS’ CONTRIBUTIONS TO THE PRACTICE OF LAW, VISIT THE IN MEMORIAM FEATURES AT WWW.ALI.ORG/NEWS.
Photo courtesy of Cornell University
SUMMER 2016 27
(ISSN 0164-5757)THE AMERICAN LAW INSTITUTE4025 CHESTNUT STREETPHILADELPHIA, PA 19104-3099
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SEPTEMBER 2016
September 9 (JOINT)Restatement of the Law Third, Conflict of LawsPhiladelphia, PA
September 15–16 (JOINT)Restatement of the Law Fourth, The Foreign Relations Law of the United States – Jurisdiction, Sovereign Immunity, and TreatiesPhiladelphia, PA
September 22 (Advisers) September 23 (MCG)Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other OrganizationsPhiladelphia, PA
September 30 (JOINT)Restatement of the Law Fourth, PropertyPhiladelphia, PA
OCTOBER 2016
October 6 (Advisers) October 7 (MCG)Restatement of the Law, Liability InsurancePhiladelphia, PA
October 20–212016 OCTOBER COUNCIL MEETINGNew York, NY
Get Ready for Fall Project MeetingsWith another successful Annual Meeting completed, we look forward to the beginning of this fall’s project meeting season. The first project meeting, Restatement of the Law Third, Conflict of Laws, is scheduled to commence on Friday, September 9.
To see the current list of scheduled project meetings, visit the Meetings page at www.ali.org/meetings. Project participants can log in to view meeting details or register to attend upcoming meetings.
If you are interested in joining a project as a Members Consultative Group participant, visit the Projects page on the ALI website. Click the project you want to join and select “Join MCG” on the right hand side of the page.
VIEW ALL UPCOMING MEETINGS AND EVENTS ON WWW.ALI.ORG/MEETINGS.
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