Institute Launches New Projects on Aggregate Litigation, Software Contracts, and Economic Torts

The Institute has undertaken three ambitious new projects dealing with class actions and other forms of aggregate litigation, software contracts, and economic torts. The first of these was approved by the Council at its meeting in October 2003; the project on software contracts was authorized by the Executive Committee in May 2004; and the Council approved the new torts project at its December 2004 meeting in Key Biscayne.

Professor Samuel Issacharoff of Columbia is the Reporter for Principles of the Law of Aggregate Litigation, which aims to develop ways to handle common issues in mass torts and other cases, which will likely include a mechanism for compulsory participation and a right of interlocutory appeal. The Associate Reporters are Professors Richard A. Nagareda of Vanderbilt, Charles Silver of the University of Texas, and Robert H. Klonoff of the University of Missouri-Kansas City. According to Professor Nagareda, "The three Chapters of the aggregate litigation project currently under way pursue three topics: Chapter 1 will present an overview of the methods for aggregation of civil claims and consider questions that cut across the various methods. Chapter 2 discusses judicial treatment of common legal or factual issues across multiple civil claims. Chapter 3 will address questions concerning the settlement of aggregate litigation." At their first meeting in Philadelphia on September 11, 2004, the project’s Advisers discussed a Preliminary Draft covering Chapter 2. The draft for the first meeting of the Members Consultative Group this spring is expected to include a revised version of that Chapter.

That first meeting of the Members Consultative Group for the Aggregate Litigation project is scheduled for 2:00 to 6:00 p.m. on Sunday, May 15, 2005. The hope is that, by holding the meeting on the day before the Institute’s Annual Meeting and at the same hotel, attendance by interested members will be facilitated. The project’s MCG members can expect to receive the printed draft in the mail by late April.

The Institute has also begun to draft Principles of the Law of Software Contracts. The aim of this project is to propound clear and fair rules to help parties to software contracts understand their rights and achieve their goals. The Reporter is Professor Robert A. Hillman of Cornell, and the Associate Reporter is Maureen A. O’Rourke, Interim Dean of Boston University School of Law. The Reporters’ first Preliminary Draft, discussed by the project’s Advisers in Philadelphia in November, deals with definitions, scope, and general terms, and includes sections on federal preemption, public policy, and choice of law and forum. The next Advisers meeting on Friday, September 9, 2005, will be followed on Saturday, September 10, by the first meeting of the project’s Members Consultative Group. Both meetings are currently being planned for the Bay area in Northern California, and ample advance notice will be provided to members of each group.

Finally, the Institute has just initiated its fourth project in the emerging Restatement Third of Torts, under the working subtitle: "Liability for Economic Loss." Professor Mark P. Gergen of the University of Texas is its Reporter. The Advisers group is now being formed, and any persons interested in being considered for one of the few slots in that group should immediately write to ALI Director Lance Liebman (ALI Executive Office, 4025 Chestnut St., Philadelphia, PA 19104-3099; fax: 215-243-1636; e-mail: director@ali.org).

ALI Members are invited to sign up online for the Members Consultative Group for any or all of the three new projects or for any other ALI project (www.ali.org; click on "Membership," then "Join a Members Consultative Group"), or by calling, faxing, or e-mailing ALI’s Membership Office (phone: 215-243-1623; fax: 215-243-1636; e-mail: membership@ali.org). Members who join a project’s Consultative Group receive the Preliminary and Council Drafts in the project and the opportunity to comment upon them in writing and at scheduled Group meetings. Financial assistance is available to assist members who need it with their travel expenses to attend a Members Consultative Group meeting (except for such meetings held in conjunction with the Annual Meeting); check the website or contact the Membership Office for relevant information and for the travel request form. Finally, the names of Advisers and members in the Consultative Group for each of the Institute’s projects are available on the ALI website. (Click "Projects and Participants," then "Current Projects and Participants.")