The President’s Letter

The American Law Institute is a prized institution in the life of our country. Why? Our work product is constructive, balanced, and clear. Our process is thorough, scholarly, and fair. Our membership is distinguished, dedicated, and diverse. These three attributes, work product, process, and membership, are strengthened by the leadership of the Council, Director Lance Liebman, Deputy Directors Elena Cappella and Michael Greenwald, ALI-ABA Director Richard Carter, and a superb staff. Like the points of a triangle, these three attributes are also connected and interdependent. I will review each briefly and identify opportunities to strengthen our Institute.

Work Product

Our work product has two dimensions, (1) the Restatements and other projects, such as Principles of the Law of Family Dissolution and the Transnational Insolvency Project, that the Institute undertakes independently, or, in the case of the Uniform Commercial Code, in cooperation with another institution such as the National Conference of Commissioners on Uniform State Laws, and (2) the educational programs and materials that we offer through ALI-ABA.

Under the leadership of Director Liebman, we are currently working on agency, torts, restitution, trusts, wills, federal jurisdiction, transnational civil procedure, and the Uniform Commercial Code. We are working to initiate projects in employment law, the law of nonprofit corporations, and criminal sentencing. We are also exploring a number of other possible subjects and welcome your suggestions.

Given the strength of the Institute’s work product and our Director and the Council, the principal responsibilities of the Institute’s President and officers include presiding at key meetings; suggesting ideas for projects and Advisers; helping resolve issues of substance or procedure when they arise; and facilitating the movement of good ideas and projects from incubation through drafting stages through realization of a product that is worthy of consideration and approval by our members.

Under the leadership of Director Carter, ALI-ABA offers many informative and current continuing legal education programs on various subjects, including skills training, books and audiovisual materials, distance learning via satellite through the American Law Network, and no fewer than 11 different periodicals. We expect soon to initiate new pro bono programs and are considering whether soon to initiate a program addressing trial, appeal, and post-conviction issues in capital cases.

Within ALI-ABA, the President of the ALI and the President of the ABA, who alternate each year as Chair of the ALI-ABA Committee, can each reinforce the commitment of our organizations to the crucial and continuing effort to improve diversity and to reach out to qualified men and women to serve as faculty members in various programs. As Chair this year, for example, I have met with the ALI-ABA program chairs and the ALI-ABA Committee and its subcommittees and have urged a special effort in this direction as programs and faculties are being assembled for future years. I plan to monitor closely the progress I hope and expect we will continue to make.

Process

The Institute’s rigorous process is intended to yield an excellent product that clarifies and simplifies the law. To this end, we choose Reporters who are eminent in their fields and expert Advisers who represent diverse points of view. Our members in Consultative Groups oriented to their interests review and comment in detail on the drafts. Additionally, the Director and Deputy Directors review the drafts as does the Council, a process that brings to bear a wide range of experience, an acute sense of policy, and a disciplined sense of quality in drafting. Finally, and crucially, our membership as a whole considers and debates the drafts and only approves them when there is a broad consensus that they are indeed ready to emerge from this crucible.

Although this process is an effective one, we face three key challenges: how to make even better use of our time, how to maintain the integrity of our process and product, and how to address the growing international implications of our work.

Among the ideas that some members have suggested for making better use of our time are shorter but highly productive Annual Meetings, including some weekend time; concentration of debate on identified key issues and motions; occasional bifurcated sessions on selected topics followed by a plenary session before final approval; expanded use of email and communications via our website; and occasional regional meetings of interested members between Annual Meetings. For example, next year, in addition to meetings of Advisers and Members Consultative Groups to be scheduled in Philadelphia, we are tentatively planning meetings of Advisers, Members Consultative Groups, and other interested members in September in the Phoenix area to consider Agency and Restitution and in Minneapolis to consider Torts.

As we further modernize our process, we must strive also to maintain the integrity of our discussions and drafting and to withstand undue influence. The importance of our work is demonstrated not only by the independence and wide use of our work product but also by the less than independent views we sometimes receive that reflect lobbying for a particular result rather than contributing to an unbiased improvement of the law. We ask each member to leave clients at the door and to exercise independent judgment. Although we have a Council rule on the subject, it is useful to remind ourselves that we also have a custom that can be far more powerful than any rule. The persuasiveness of our work product depends on each member’s observance of this custom.

Our process must also accommodate the growing international reach of our work. Along with expanding the numbers of our members from foreign countries, we are involving them increasingly in the drafting and deliberation process. We are asking our Reporters where appropriate to expand their analysis of comparative law and include foreign references in their Reporters’ Notes. These efforts require dedicated time, leadership, and money. They also call for an approach that is not parochial, that is tactful and considerate of the views of others, and that reflects a willingness to take into account the work of international institutions such as Unidroit and UNCITRAL, and to cooperate with them in fields of mutual interest.

Membership

Although our membership is strong, diverse, and active, we can not afford to be complacent. There are certain categories of members that need to be strengthened in number, in particular, members from state courts, from large law firms, and from states where there are only a few members. We have madesub stantial progress in recruiting able members who also are women or minorities, but further progress is essential to our well-being. For example, from 1994 to 2000, we have increased the number of women members from 350 to 515 (a 47% increase), of African-American members from 46 to 119 (a 159% increase), of Hispanic members from 12 to 57 (a 375% increase), and of Asian-American members from 8 to 31 (a 288% increase). We must do even better over the next few years, and I hope all of us will pitch in to help.

I have recently added the following members to the Committee on Institute Size with a view to increasing our capacity under Allen Black’s extraordinary leadership as Chair: Carolyn Lamm, a partner in White & Case in Washington, D. C.; Ellen Peters, former Chief Justice of Connecticut; Yvonne Gonzalez Rogers, my partner at Cooley Godward in San Francisco, and a leader in the Hispanic National Bar Association; and Myra Selby, a partner in Ice Miller in Indianapolis and a former member of the Supreme Court of Indiana. I will be making other appointments over the next few months. In addition, the Committee on Membership, under the great leadership of Sherwin Simmons, will be considering ideas for improving communications with our members, for example, via e-mail and our website (http:// www. ali. org).

I am often asked by members, "What can I do to help?" or "How can I be active?" or "Can I participate in a way that will also be relevant to my practice?" These are important questions. Lawyers, scholars, and judges who qualify to be our members are usually also people who face enormous time demands and competing priorities. We need to make your time productive. Please review drafts in your area of interest and comment on them; give us supporting or constructively critical memoranda; participate in Members’ Consultative Groups; volunteer to write or lecture for ALI-ABA; come to Annual Meetings and join in the debates; recruit solid new members; and meet and enjoy as many people as you can while you share your time with us. The relationships you make are likely to be enduring and rewarding ones.

Regrettably, we have a number of members who showed great promise when they joined and who have had successful careers but who have not participated as actively as we and probably they themselves had hoped. In addition to our custom of leaving our clients at the door, I hope that we can cultivate a custom of responsible participation. If each of us at the end of each year can point to at least one contribution to the ALI, we can have the most vibrant and influential legal institution in the world.

I solicit and welcome your comments and suggestions.

With all good wishes.

Michael Traynor

President