The President’s Letter
On Compromise and Civility: American and American Law Institute Values
As an organization, The American Law Institute is in the process of significant change. Our governance reforms have resulted in more change on our Council than at any time since our founding: at the end of the Annual Meeting in May, 14 new members in just the last two years. We will have a new Treasurer for the first time in the modern era; happily, our Treasurer Emeritus to be, Mr. Boskey, will still be a part of the leadership and the life’s blood of our work. Working hard are ad hoc committees focusing on broadening our membership, using technology, and expanding our capital. Some of our most important substantive projects are at an end (Restitution, Property (Wills and Other Donative Transfers)), with important new projects taking shape after May.
Equally important in the midst of these changes are those aspects of our culture that have not changed and must be both celebrated and protected. Because of all of the noise in our political process about what “American” values really are, I have been worrying recently about the vilification of compromise. This made me curious about whether my memories about the Constitutional Convention were correct. So I did some checking and found that the Philadelphia Convention that produced the U.S. Constitution was indeed held with no public transparency, but with great civility and respect that equaled the passion of the debate. Each of the members promised to keep the deliberations confidential until a result was reached. And there is not time in this brief missive to do justice to all of the compromises that were necessary to reach a positive end; they will be familiar to the many of you who are scholars of the Constitution and American history.
Some of the compromises were brilliant political moves, resulting in a Congress in which each state has an equal and steady representation in the U.S. Senate and a changing representation based on population in the House. This year the Census is a matter of huge political moment as our peripatetic population continues to migrate back and forth across America, and the House will reflect the change. Some of the compromises in Philadelphia were necessary to move forward at that time, but they were a kind of pact with the devil, which we paid for in the terrible history of slavery and the Civil War, and from which our society still has wounds.
The importance of compromise as an American value has direct impact on our work. All of our projects—the Restatements, the Principles, and everything else we produce, including the Uniform Commercial Code—are the products of compromise, not only of language, but often of concepts. When defense lawyers and plaintiffs’ lawyers share the same room with scholars who have strong opinions themselves and judges who have to make decisions in these areas every day, there is no shortage of heat in the discussions. Reaching an ALI-authorized position that achieves a fair view of the current state of law or an equally fair position of what the law should be requires good representation from all points of view, a respect for the majority view in the law across the country, and significant agreement on the part of Advisers, Members Consultative Groups, the Council, and ultimately the entire membership.
There could be no more American process than ours, but without compromise as a value there would be no end product modernizing and reflecting the law, just as there would have been no Constitution, and probably no United States of America, without it.
Many people these days try to justify the lack of civility in political discourse. But free discourse that is civil may be the single most important value that allows a diverse society to exist in peace and move forward. Our debate on capital punishment at the last Annual Meeting and in several previous Meetings could not have been a better example of showing respect for divergent, passionately held opinions and finding compromise to reach a conclusion and move forward. While the death-penalty discussion is the most obvious example of a substantively serious but passionate debate about the law, there are many others. Employment lawyers for both management and employees, those who worry about how corporations govern themselves, those who are concerned about how a substantial part of our public and private lives is impacted by nonprofit organizations, and judges worrying about how to apply inconsistent rules about criminal sentencing all have to come to a consensus for the ALI to do its work. Each of us has strong feelings about the areas of the law in which we are involved professionally and those that concern us in broader ways as citizens. At the ALI, we all express our passionate ideas with respect for those who disagree with us.
Those two working themes underlie our success. Civility as our institutional value and the ability to compromise must not be lost, as we make other changes to adapt as the world changes around us.
When I review the nominations of new members and their supporting letters, I note how many come from lawyers who were once on the other side of a matter from the nominee they are supporting. My own law firm was formed after a high-profile and very sensational capital trial in Gallup, New Mexico, from the respect that developed between the prosecutor and the appointed defense lawyer. My introduction to private practice was in a firm in San Antonio, Texas, founded by partners who had diametrically opposing political views. Mr. Goode, a committed Republican, and Mr. Sawtelle, the head of the Bexar County Democratic party, went to lunch together every day. Much of their lunch conversation while I was there, I am sure, was occupied by trying to figure out how to turn me into a serviceable practitioner, a goal on which they apparently could agree and the size of the task a joint challenge for sure.
Our international colleagues are often amazed at the diversity of views at our tables and the fact that judges, lawyers, and scholars talk directly with one another about our projects and air all manner of ideas.
In the midst of the good and interesting change we are undertaking, it is worth remembering how key and how American both compromise and civility are to achieving our work and protecting our democracy. That’s not news, but it is profoundly important to keep in sight what continues to be precious to our success. See you soon.
Roberta
Roberta Cooper Ramo
President