A transcript of the full episode is available below. Please excuse typos due to inaudible passages or transcription errors.
MikeTraynor: Roberta, you've had a fantastic career in the law, president of the ABA, president of the ALI. What made you want to become a lawyer?
Roberta CooperRamo: Well, unlike you, Mike, because of course, I knew who your dad was from law school, I went to law school not because I wanted to be a lawyer. I was at the University of Colorado at the very beginning of the political upheaval that was civil rights stuff, and women's rights, and all kinds of things were coming up. I decided I wanted to be the president of a public university and that there was no way a woman would ever have a chance to do that in the academy, but that maybe if I made a success of something outside the academy, then maybe I could be the president.
So the president of the University of Colorado was such a hero to me. I thought that's really what I want to be. And then I decided that the only law school I really wanted to go to was the University of Chicago, which I knew about and had always had women, but nobody in my family had been a lawyer. I had no idea what I was doing. I went to law school and it was the height of the civil rights time and I fell in love with what lawyers were doing for the democracy and that's when I decided I really wanted to be a lawyer.
Traynor: Right. But leadership was in your genes.
Ramo: What is true is that growing up in New Mexico was so great in so many ways because nobody... First of all, my father had three daughters, and he didn't know the word at the time, but he was a feminist. It never occurred to him that any of us shouldn't be anything we did, and if you got lower than an A-minus and even an A-minus, there'd be a discussion. It just never occurred to him that we shouldn't do everything, and so that was huge. New Mexico was always a place where they cared could you do the job. They didn't care who you were. So I had the chance to do a lot of things including going to Girls Nation, for example, which was very important to me.
Another insight I had into when the law went bad, because I didn't understand what had happened to the Japanese during World War II, literally, till I went to Girls Nation in Washington. From Washington State, there was a Japanese American girl who brought a scrapbook of her family and I couldn't believe what had happened. I had, early in my life, a chance to see the law do right things and terrible things, and that was why I decided that law school would be a good place for me to start. How about you? I mean, did you reject the law?
Traynor: No, no. I wanted to be a lawyer when I was 10 years old.
Ramo: You had to debate your father.
Traynor: We had discussions. My dad was a judge and we had discussions around the family table and it certainly seemed interesting. Then when I went to Cal Berkeley, I had the great good fortune to be in a freshman, what they called it, Speech. But Jacobus tenBroek, who's a lawyer, was the teacher and it was basically a Socratic class and we included in our class discussions First Amendment cases and the Japanese exclusion cases. At a very young age, I became aware of the power of the law and also the sorriness with which decisions can occur. That's one of the worst decisions in the history of our country, the Korematsu case. And then went into service, and then law school, and another great teacher was Paul Fine and he said in a very sweet way, but a very deep way, "You make a life," and that's what I tried to do.
Ramo: Did you find a lot of difference between the West Coast and then coming to Harvard, especially after being in the service?
Traynor: Yes. I did basic training in the East but had no real experience. I'd had a scholarship to Harvard College, which I eventually decided not to go and I went to Berkeley undergrad, but I was a difference. Sometimes, we're very friendly in the West Coast, at least at that time, and it takes a little bit longer to make friends, but you do. It's a different cultural experience in the East Coast. Of course, the eastern influence is a very big one in the ALI, the New England Corridor. We had the good fortune while I was in law school to be house sitters for MI Cutter. A wonderful New England gentleman, and one of our predecessors as a leader of the ALI, and he liked us and we had a good time. That's when we got a chance to meet him.
Ramo: So how did you get involved in the ALI?
Traynor: I became a member in 1972 and my dad was on the Council and others thought it would be a good fit, which I thought it was. But then going to the first meeting, the discussion, of course, was very intelligent, but it was a room with filled with a really, overwhelming number of white men and it's changed very positively over the years. That's about 20 years, I think, before...
Ramo: So did you notice that or did that feel normal to you?
Traynor: I noticed it. It seemed obvious and not right. The discussion was at a very high level, and a very good level, but I thought the dynamics of the content of the people in the room could be changed. Fortunately, they were.
Ramo: I think of all, you did so many important things as president of the ALI, but maybe the most consequential, I think, for our future, was when you took on governance. So, talk a little bit about what made you decide at that moment that we needed to change the governance and what the impact was.
Traynor: Well, like so many things, they're not singular one-person decisions. A lot of people deserve a lot of credit, including particularly John Subeck and Bob Mundheim. We were then embarked on a nonprofit organization project and John Subeck said, "We ought to take a look at ourselves," and I totally agreed with that. We can't be recommending principles of governance to other nonprofit organizations without taking a deep look at ourselves, including the long-term nature of Council members. They're staying on for years and years, very productively in many cases, but without the room for growth that we have now. So with John Subeck's urging us, we appointed a committee chair by Bob Mundheim, which recommended a change that we are now enjoying the benefit of.
Ramo: Well, you very nicely put me on the committee. That was really my first introduction to a lot of things.
Traynor: So you share the credit of it.
Ramo: The brave part was appointing the committee.
Traynor: But you see it around the room just in the meeting today, all the new voices that are coming forward of new ideas, and of course, getting a widespread group of people and diversity of experience and so forth has been very important to us.
Ramo: Were you surprised that the Council accepted the recommendation that basically put many of them off the Council as voting members?
Traynor: Not really, because, again, it was the ALI process at work. You do a good job thinking through the problem and you come up with a very thoughtful recommendation. As it got a lot of people sponsoring it, it was accepted, not routinely, but with some discussion. But they thought that was a really important thing to do and I'm glad we did it. Part of the thinking behind it was that we weren't just going to send Emeritus members out in the cold. We were going to make it comfortable for them to come back and participate. It's obvious that that's been working because they do participate and they do come. Part of it was to say, "If you'd like to have your expenses reimbursed and want that, we'll do that for you."
Ramo: Yeah, I thought that both in the committee discussion and then in the Council vote, that was so important because we have icons of the profession, who have such incredible wisdom and knowledge, and across the board and you didn't want to lose those voices. I thought that was the perfect way really to allow the Council to be refreshed with new people, but not lose the wisdom, and the breadth, and the richness of people like Pat Wald. I mean, who's going to not want to listen to Pat Wald? I mean, I could name many names, but she just came to mind right away.
Traynor: Pat was a wonderful person, Vice President, we worked together very closely and I'd invited her to be an annual dinner speaker, which she gave a great talk at. I want to go back to another thing. I handed you a hot potato, the death penalty case.
Ramo: Yes, indeed.
Traynor: There's some background to that because in thinking about that, we were talking among ourselves about what was some of the difficult issues that we confronted, and substantively and emotionally, the death penalty is about as tough as they come. I just want to approach it, not so much from the view of the emotions or the substance, but from the challenges to the institution and to the leadership issues that it involved. We had a project, a good project, on sentencing. It was natural that the death penalty would, at some point, come up in that project. There was a lot of strong feeling among some people that the ALI ought to take a position to abolish the death penalty and I listened to them very carefully.
Roger Clark and Ellen Podgor were the sponsors of the motion, I think it was in 2007, to abolish death penalty. It seemed to me that it was a little early to try to do that institutionally. That was a step on the way, that the best thing for us to do would be, if they were to be willing to defer their motion, so we could get the ALI process working, the process of having a special committee, which we did. You've written about this in your wonderful chapter in the ALI history, which is a great contribution. So we formed a committee, Daniel Meltzer, and then Lance Liebman appointed the Steikers as a special project to do a report. We had a very thorough report to the Council, and then the recommendation.
This particular focus of our work was section 210.6 of the Model Penal Code, and that dealt with the circumstances under which the death penalty would be permitted. There was some absolute rules like you can't execute somebody who's under age 18. The categorical rules were working pretty well like that one, but the difficulty with 210.6 was in the discretionary factors that prosecutors could take into account to seek an aggravated sentence of death penalty. There were also mitigating factors, but they were not working. So the death penalty was being administered in a very arbitrary and unequal way across the country. I later wrote an op-ed about it in the LA Times. So we went through this process, and then my term came to an end, and I handed a hot potato to you so you could experience that as a leadership challenge when you came in as a new president as the first thing you did. So you carry on the story from there.
Ramo: Well, just to go back a little bit, what people don't recognize is that the previous Model Penal Code actually was a big leap forward in some ways because it did have the language that said you shouldn't give the death penalty to somebody who's not mentally competent, you shouldn't give the death penalty to somebody who committed the crime when they were, I think it was under 18, I don't remember exactly. Most states had adopted that, and that was much better than what we had had before. What was interesting to me about, first of all, the way you handled the two wonderful people, Ellen Podgor and Roger Clark, who wanted to do this, and their willingness to let it go through the process, I think speaks so much about the culture of the ALI that is so deeply important.
We talk to one another. It's important, I think. If anybody looks at this years from now to understand where we're sitting as a country right now, very hard for people to talk to one another, to have the ability, to have an institution that allows people of varying passionate views to express them and then compromise to come to a solution. I thought that the way you handled it, and Ellen and Roger's willingness to go through the process, spoke volumes about the importance of this kind of process, which we unfortunately don't have working well in our country right now anywhere. I don't want to lose that part of it.
What I hadn't realized, because I also sat in because you knew where this was going to end ultimately, I remember the sparkle in your eye when you said, "Well, we'll do this, and this'll happen this year, and this'll happen next year, and then, Roberta, you'll get to do this." We had a meeting, I'm sure you remember, I think it was in New Orleans, we put together a small group of people to vet this white paper that the Steikers had written, and it was, I remember, a death penalty defense lawyer, a couple of prosecutors, state judges, federal judges, and one or two other academics that were involved. I had not fully appreciated the impact of the race issue until that paper. I mean, I knew it was bad, but I didn't have any idea how truly terrible it was.
On the other hand, as many people said, including during the ultimate debate, the death penalty was legal and constitutional according to our Supreme Court. So how could we possibly take a position about something that the Supreme Court said was constitutional? I mean, there are answers to that, but that's sort of where we were. I took over after you had all of this set up. As you said, what happened is that the Council had taken a position that we should simply remove the death penalty section from the Model Penal Code, period, but we had this white paper that went through why it was being administered in such, I think I felt and you did, kind of a racist way, and that there was no way to fix that in a sense.
As you know, we have a bicameral governance structure, and so the Council, literally, in front of the Annual Meeting was "Should the death penalty section be removed, period?" As I explained in the chapter that I wrote, and as you'll remember, but I'll just say now for the purposes of our conversation, remember we used to meet in the Mayflower Hotel, and it looked like an old-fashioned opera house. There was this little balcony and people were, literally, hanging over the balcony. I don't know that we've ever had more people at a meeting sitting on the stairs. I was just hoping the fire marshal wasn't going to close us down. The conversation was incredibly intense and people said things that I hadn't really even thought about. Somebody, for example, who had been through the Nuremberg Trials got up and said, "I don't understand why we wouldn't have the death penalty for treason." I mean, something that we hadn't talked about.
We had judges who felt that they had presided over death penalty cases and it had been very fair. We had a man who was a public defender, or maybe even just a criminal defense lawyer from a small town somewhere, who was furious that we were having this discussion because there were so few death penalty cases. The real important thing to him was he had all these criminal defendants who didn't have access to anything like expert witnesses for anything, and he just didn't understand why we were spending so much time on this when other areas of the criminal justice system were, he thought, being held at bay. At the end, the motion that passed was a motion that we withdraw the death penalty section, but that we append this white paper to it. We had to go back to the Council to get their approval. Of course, they approved it, and that's how we ended up where we were.
But it was a wonderful example, I think, of how you take something in which people feel so passionately and deal with it in a way that allows people to appropriately express all of their views, but in ways that are respectful and not demeaning of anybody else. And then we took a vote. And then as in all cases with the ALI, there had to be a compromise. The compromise was not that we opposed the death penalty, which some people in that discussion thought we ought to do, that motion failed, but rather we withdraw it and append the paper that explained what the impact was.
Traynor: And that was a good solution. Part of the background here too is Susan Appleton's running the internet, we had all sorts of opportunities for people to comment in addition to the usual processes that we have. One of the leadership things that I felt at least confronted with, was, and it goes on in our society today, sometimes people see things very clearly in their terms and think that institutions should act accordingly to their strong beliefs, and yet the institution may not be ready for that yet. I mean, we had one Reporter resign, for example, from the Sentencing project because he felt so strongly that the ALI was not taking a position against the death penalty. I felt it was important to listen to those viewpoints, but, to say, appreciate the process.
It's really worth the extra year or two that it took, even though it was a hot potato in your first year, which was handed to you, but to let the process work rather than just say "A few of us have such a clear view of what the outcome should be that we ought to decide it right now and put the institutional imprimatur behind that."
The process worked and it was an example of the ALI being a wonderful forum for people to share really different points of view and come to an understanding of what the law should be and that it should be simple, and practical, and workable for the rest of our citizens.
Ramo: I think the other thing that I was so grateful that, this was my first meeting, but it didn't happen until after lunch. I at least got to get my sea legs and I figured well have lunch and, who knows, some of them maybe will go have a glass of wine and it'll be a little bit more mellow, but it didn't work out that way.
Traynor: Well, that's a lead into, I think it was principle, but the one arbitrary decision I made without any process at all was to not have liquor at lunch at Council meetings.
Ramo: I remember.
Traynor: I mean, I got one actually handwritten note by a dear friend, John Frank, who didn't like it. I said, "John, we'll always have a glass of bourbon for you if you want it." But I thought it would improve the discussion in the afternoons if we didn't have liquor at lunch. Of course, the styles have changed over the years. People don't drink that much at lunch anymore, I don't think.
Ramo:I remember it well because I was astonished when I came and saw there was a drink at lunch. Let me ask you though, first of all, is there a project that you thought other than the death penalty?
Traynor: I mean, there were many projects that I had the luck to be involved in, and currently involved in, as an Adviser on the Conflict of Laws project, Geoff got me involved in the 87 revisions to that project. One I think of as singular importance to the common law is the Restitution and Unjust Enrichment project. We had a project that didn't go forward in the Second Restatement, and then we had a lot of discussion about remedies and restitution and so forth. Then we were fortunate to have Andrew Kull, just enormous capacity to master the entire subject of the common law, with the help of the great group of Advisers and the help of the Institute and all the discussions that we had.
There's now a Restatement Third of Restitution and Unjust Enrichment, which is a tremendous contribution to the common law and a source of great ideas for lawyers. I think overall, I mean, I don't want to single that out, but that's one that comes to mind as an important thing. Let me ask you, because you were the first woman to be president of the ABA, and the first to become president of the ALI, what that experience meant to you and meant to the country?
Ramo: I think, again, growing up in New Mexico and in my family, it just never occurred to me there were things that I couldn't do. I got to be the president of the ABA on the second, the first round after 88 ballots, I lost. Again, I think part of what's interesting to me is being from New Mexico, because lawyers who practice in New Mexico tease sometimes, a little different now because people practice across state borders, but you get a call from some lawyer in a big firm, in a big city, on either coast and you can hear behind their voice, "How smart can she be if she's practicing in New Mexico?" Of course, then I know I've got them.
The reason I was able to be successful at that, though, was not because of my superior qualities. I was lucky enough to be from New Mexico and we had both a senator and my own representative, both Republicans, Pete Domenici and Steve Schiff, who were lawyers who believed in legal services. They stood up to the prevailing right-wing desire to get rid of the National Legal Services Corporation. So that was an example of a time when being from New Mexico, it was not my superior leadership ability, it was my ability to stand really beside these two giants who were willing to go toe-to-toe with people in their own party because they genuinely believed that poor people deserved legal services.
I had been through that, and it made me appreciate even more a group like the ALI, which I had just gotten into that was able to have these conversations in such a productive and important way. It never occurred to me that I would be the president of the ALI. I remember when I was asked to be on the Council, which was just such a huge honor to me, we don't have seats anymore, but Ruth Ginsburg had left the ALI Council because of the flimsy excuse of going on the Supreme Court of the United States. You may remember that her seat was taken by Judith Kay, who was then the chief justice of what is the New York Supreme Court, but they don't call it that, and she was overwhelmed with work and some other things, and so she had to resign from the Council. This is when you were there, and they invited me to take her seat.
I was just really so amazed that anyone would think of me about that and to see how carefully everybody approached every project and also understood that some of the most important questions came from people who were not experts who were just reading it and Bennett Boskey was the master of that, but a lot of other people would say, "This is not my area, but this sentence doesn't make sense," and it didn't make sense. That kind of understanding about who the ultimate audience was it's not just judges, it's lawyers and it's people who don't know about the subject and that's why it has to make so much sense and that's in part why it takes so long, I think, to get the projects in exactly the right place.
But I remember when Lance came to speak to me, at your behest really, to say, "Would you consider being the president?" I don't recall that I even said anything for a few weeks because I just couldn't imagine doing that. Finally, I think maybe Lance called me or you called me and said, "Well, it's been three weeks or four weeks. What do you say?" and I thought I'd have a go at it.
I wasn't worried about it because the way, especially you, Mike, at your enormous kindness, had produced not just the culture that we're talking about, but no one would let me fail. So I wasn't really worried about failing because I knew that you guys would never let that happen. It was an enormous lucky break for me. I think maybe other than one case that I had personally, I think the most important contribution I've made myself was to have this chance to be the president of the ALI.
I am proud. You talked about Restitution. I would say there are two projects that I think, one, I know would not have happened without me, and the other I think I, with other people, helped resuscitate. The one that I think is important is the Nonprofit Organizations, which as you know, we worked out for like a thousand years and it just was never going anywhere and finally we closed it down and then we found exactly the right Reporters and started up again. As Tocqueville said right from the beginning, "So much of American life is governed by nonprofit organizations." It was very important for us to have that Restatement.
But when I was going to be the president of the ALI, I took a couple of my partners out for lunch one day in two areas that we weren't working in. Our firm does a lot of work both in water law, not surprising, and Indian law. The water lawyers explained to me that that would not be a good thing for a Restatement because there's East water law and West water law and, apparently, never the twain or the stream will meet.
As we talked about Indian law, what I recognized, living in New Mexico, again, this is part of how important it is to have people from different places. I grew up in New Mexico. I understood all about the tribes. We have many Pueblos. They speak different languages that people don't understand. Two of them, Tiwa, which is not the same language. I went to school with all kinds of kids, including people from many of the tribes and Navajo kids who, for one reason or another, were in Albuquerque at the time. What had happened that was different, is that the tribes had gaming money, and I knew that that meant that they now had the money to start litigating about tribal rights, that they'd had these rights all along, but no one was going to be litigating about it.
I remember calling Lance after this lunch and saying, "Lance, I want to talk to you because I really think we should think about doing Indian law." He said, "It's not Indian law, it's Native American law." I said, "No, it's actually called Indian law." He agreed that we would have a meeting, at least. I said, "Let's just have a meeting to discuss it, and if this is a stupid idea, I will go away and not bother you." We invited, one of my partner's suggested, and we helped find Matthew Fletcher and his wife, both two Native Americans from different tribes who were teaching at Michigan State and I said, "Well, let's just have a meeting and have a discussion about what Indian law means."
We invited several federal judges, including Diane Wood, now our director, and lawyers who represented both tribes, and one of my partners who represented people that did work with tribes, and a lot of Native Americans on faculties of law school and who practiced law, just to have a discussion. What came out of it was everybody there convinced Lance that we absolutely had to do something, and especially the federal judges and the state court judges, because these cases were starting to trickle in then. I'm just very proud of that piece of things.
I remember just one other thing about it, you may remember this. When we were just first starting to talk about it, we had that first meeting and then we thought, "Well, let's see if anybody besides Roberta is interested in this." We had a breakfast one morning at the Annual Meeting and we just said, "Anybody who wants to come and Matthew was going to give a little talk." I thought we'd get 30 people. It was early in the morning. The room was filled, and then we knew that this was really an important project. So I would say those are the projects that I'm really proud we did.
Traynor: There's one question that was suggested to us, I'll let you think about it and I'll comment on it, "Is there an area outside of the ALI and the ABA that has been a particular interest or influence on you?" We share a very fond memory of Ruth Ginsburg. I remember when I became second vice president, I was sitting next to Ruth at the Council and we're both lefties, left-handed, I mean. Ruth penciled a little note to me saying, "That's nice." And then we got to know, work with Sandra Day O'Connor, who was just a wonderfully authentic and a wonderful leader on a conference we started with Georgetown on the state of the judiciary, which led to her really important project about civic education and the judiciary.
But just let me pick up on the suggestion. The one area outside the ALI that has been really important to me is the environment. I was involved in the early beginnings of what is now Earthjustice, which is a leading organization bringing lawsuits now in the country and the world. It's got over 200 lawyers in different locations fighting battles for the environment. It started off as a volunteer lawyers committee in San Francisco being run out of a law firm with Fred Fisher and Don Harris, Phil Barry. Maybe 20 or 30 lawyers on the volunteer committee became the Sierra Club Legal Defense Fund, which I chaired the board of, and now Earthjustice when we changed our name, rightly, doing battles for people affected by the environment and heavily now involved in the whole fossil fuel, clean energy, and climate change disruption stuff. So let me ask you about an area outside the ALI and the ABA.
Ramo: Let me talk about three. One is that I believe passionately in the arts. I'm very proud to be on the board of the Santa Fe Opera and also feel that the arts are so important in the democracy for a whole variety of reasons. It gives people the ability to express themselves in ways that people who are not the same as they are can suddenly have insights into what life is like through their eyes. But today I want to talk about something that combines two things. I'm deeply worried today about antisemitism, Mike. I grew up as a Jew in New Mexico. I didn't experience antisemitism until I went to college. I didn't really know. When the first Chinese restaurant opened in Albuquerque, it was owned by people named Jew, and they spelled it J-E-W. I remember as a kid saying to Mrs. Jew, one day as we were having dinner, my folks there, I said, "Well, I'm a Jew too," and she said, "Well, we're cousins." I think we are all cousins.
As we have this conversation today, it's a matter of such pain to me that antisemitism, which I didn't experience as a child, even in my own New Mexico, has, a little bit, raised its ugly head. our democracy has a hole in it, Mike, that we have to, each one of us, work to fill. Part of it is the hatred of people who are different than we are.
This relates, to me, to education because public education is the other thing I care deeply about, as you do about the environment. I think the failure of public education in our country, including civic education, which Justice O'Connor 30 years ago so presciently understood, I think that is something we have to fix or we can't have a democracy. For all the pride I take in the ALI, I feel a lot of failure on my own part that somehow I have not helped to produce a better democracy. So in my last chapter, or act, or whatever it is, I want to work very hard to change that. I think each one of us, everywhere we are, have to stop when we hear hatred, hard as it is, and say to somebody, "Let me stop you," and "Let's talk about this a little bit." I told you earlier, we went last night to see some singing at the Carlisle and they sang the song from South Pacific, "You have to be taught to hate." When you're seven and eight, and I think each American citizen now has to understand that we have people who've been taught to hate, and now we have to be, each one of us, the people who teach them to learn to love instead.
Traynor: Let's talk a little bit about some people we remember. Both of us have very strong and good memories of Rod Perkins, for example, who proceeded Charlie Wright. You were there during Charlie's term. They're very different leaders and yet dear friends, different styles of leadership and so forth. Looking back on their leadership of the ALI, what are some of your recollections?
Ramo: One of the things, I think it was good that we capped the ability of a president to serve three, three-year terms, but I think having a length of service in a president of this organization is enormously important because the projects take so long and you can't really see things through. As you may remember, Rod went to establish an office in Russia for his law firm, I think, during his term, which I thought was such a brave thing for him to do. Now, tragically, that would be impossible right now. Of course, I knew Charlie better because I was practicing in New Mexico and he was, obviously, a Supreme Court icon really because of his many cases in front of the Court, whereas Rod was a very famous East Coast lawyer. I knew the firm, but I didn't know him. I thought what was interesting about both of them... It was interesting to watch Charlie, who I saw more in action than Rod. What I appreciated about Rod was his broad view of the world outside the law almost. I think that really helped him appreciate the kind of full human beings that we needed to have on our Council and in our membership. He was interested in the ballet, he had all kinds of other interests, and so he appreciated people in a very broad way.
Charlie, of course, whole life was really appearing in front of the Supreme Court in major cases. That gave a kind of precision to his view of what we ought to do. His brilliance was completely amazing to me. I think what I also saw in both cases was the impact of whoever was our director, because the director really has an impact, not just on all of our work, but I saw both in the case of, especially Rod and Charlie, what having Geoff Hazard as the director did to broaden their views about what the discussion ought to be and keep somebody from having a rigid, more lawyer-like view of what the discussion ought to be and how it ought to go. So that was really what was very impressive to me to see.
Traynor: Charlie could be quite formal. He and I became really quite good friends and we shared a kind of mutual sense of curiosity in emails and conversations and so forth. I remember one time as a younger member being an Adviser on the Restitution project, which our dear friend Bennett Boskey had gotten me involved in, we had a meeting in New York and there was an example of a ring, a family ring and a creditor and so forth. Charlie was on the side of the creditor and John Frank and I were on the side of the family keeping the ring. I knew I'd finally gotten in Charlie's good graces when he leaned down and said, "Frank and Traynor, you're just bleeding heart Liberals." We got along pretty well after that. I had a conversation with him one time saying, "We're very different in our approaches to presiding and so forth, and you're a little bit more formal." But what's true about it is that each of us is authentic to our own personality and I think he appreciated that.
Let's share memories a little bit. We've mentioned the directors. I'll go back a little bit. Herb Wechsler is a pioneer on the Model Penal Code. He was a friend of our family's. Herb and Doris at the Annual Meeting would be at our table for the dinners. And then Doris would come to our Council meetings in New York, which was always a great pleasure to see her. And then Geoff and I were not only neighbors at Stinson Beach, but also very close friends, and just a wonderful leader in ethics and the law and the principles of civil procedure that became an international project. Lance, I got really the joy of working with Lance as director. He knew so many people and he knew just the right people to get involved in the project. So it was a great pleasure to have a chance to work with all three, Herb as a younger member and then more closely in their leadership capacity as directors of the Institute.
Ramo: I think that both the personality and the individual expertise and leadership styles of the directors are very important. Geoff, as you know, sat up there often with his eyes closed and people thought he was sleeping. I don't know whether he was or not, but at just the right time, he would open his eyes and redirect the discussion, often to protect the Reporters, very, very important. Then he really had some ideas about our doing things internationally that turned out to be very important. Lance, as you said, was important in the fact that he knew who the best people were for Reporters and worked very hard. To Lance's total credit, he was willing to listen also to people like me who had very different ideas about who ought to be members and what we ought to do and he was great about that in so many ways.
I worked most closely with Ricky, and Ricky's knowledge of both individuals and his ability to get the very best people as Reporters was so important. Also, as you know, sometimes we have things that are difficult where we really need to have the director involved in the substantive discussion so we can get to a compromise and I thought Ricky did a great job of that. And then we had with Stephanie Middleton, I think, and now with Eleanor, a kind of quality as deputy director that really changed the kinds of intellectual processes that the Council could deal with, but also could really deal with all of the Reporters at a high intellectual level, because what I came to realize, and you knew as well, it's very hard to be a Reporter and especially because academics are not used to people having at them at all sides.
As lawyers, that's what we do every day. I write a document and the lawyer on the other side tells me 84 reasons why it doesn't work, or what's wrong, or I haven't been fair, or anything. It's the same thing in litigation, that's our life. But for an academic, you have these adoring law students that you're smarter than most of the time. This is your area, and also you write academic papers and you're not quite so used to people having at you. I thought Ricky did a great job and Stephanie, especially, and now Eleanor, of helping Reporters live through what is the very difficult process of having an ALI Restatement or Principles project come from idea to fruition. I think people outside the ALI wouldn't appreciate how important those two roles are and the individuals who are there. Now we're lucky enough to have Diane Wood, famous judge on the Seventh Circuit.
Traynor: We were so lucky. You reminded me of Geoff's ability to interject at just the right moment with usually a substantive comment. But I also remember occasionally litigators in our members of our group will approach the presiding officer and say, "Your Honor," as if they were in court. That happened with Charlie presiding one time, member got up and said, "Your Honor," and Geoff interjected said, "Not Your Honor, Your Grace."
Ramo: It was probably better for Charlie anyway.
Traynor: It was a well-taken comment in both directions. He could look like he was asleep, but he wasn't asleep. He was very powerfully interested and engaged in the discussions. Let me talk a little bit about challenges facing the ALI and going back to Bennett Boskey, the wonderful motion that you've written about. Another is the Boskey Motion, which it essentially moves our projects along at the successful conclusion of a debate, somebody will move the Boskey Motion, which is essentially to approve the project subject to the usual editorial prerogatives of the Reporters, within the substantive guidelines that have been approved by the Council and by the members. But one of the challenges that we have for our legislative projects is we don't have a Boskey motion for legislative projects. You really need some kind of flexibility if you're going to go take a statutory project to a legislature like the Congress or state legislatures, some ability to move with what has to be the flexibility you need to get things done in a legislative atmosphere.
The other challenge I think we have, that I gather David is looking at and others are looking at, is "Can the ALI have a voice, that's useful to the country, without having to go through the entire process?" Our process is probably the greatest gift that we can provide to the legal and community of the country, but sometimes, and I'll give you an example and maybe there'll be ones you have too.
For example, when 9/11 hit us, which was early in my presidency, what should the ALI do? Well, lots of people are making statements and so forth, and you don't want to just chime in and do a "Me Too." What we did was quiet. We thought we'll take our resources, which included the Bill Webster's friendship with Don Rumsfeld, and Gerhard Casper's knowledge of the Constitution, and George Freeman's experience as his clerk on a Supreme Court when the cases came up about military commissions. There was a time in our country's history, it's not easy for people to remember, when John Ashcroft was the Attorney General, and essentially, I thought, disregarded the Constitution. Rumsfeld, even though there was a lot of issues about him, at least there was a sense of some constitutional concern about military commissions.
We didn't speak as the ALI, but we did provide background intelligent memoranda that Bill could furnish to Rumsfeld. I think it helped inform some thinking in the Department of Defense. So that does raise the question, "Can the ALI use its resources in a way that helps our country, helps our profession, but it doesn't necessarily entail what we do the best of is use our really extensive process, which requires time?"
Ramo: I think that another good example was more recent than that of the same thing, and that is, Ricky and David put together several experts in constitutional law to suggest a framework for the change in the Electoral Reform Act. That wasn't our process. It wasn't exactly an ALI project, but they were able to put together people from both parties who were constitutional law experts to give a framework to that. In fact, I think somebody in the Senate acknowledged when they finally passed the Electoral Count Reform Act that the ALI had been very helpful. So I agree with you that at this time in which there's so much disinformation about the law and the Constitution, that there are moments when the right people from the ALI can be put together and in touch with people on both sides of the aisle that need the intellectual heft to help come to a good solution, and I think we are such an important organization that we have to be careful about how we do that. In both cases that you and I have just talked about, I think it was enormously, enormously important.
We're not set up to really lobby and we never really should lobby. It's a very interesting thing about our members also, so when we started the 100th anniversary, Ricky and I very foolishly said, "All right. We're going to go to every state and meet with the ALI members." Part of that was that we're kind of an East Coast-centric group, even now, and maybe influence from the West Coast, but the rest of us live in the middle. We wanted to make sure that we actually tried to go touch the hands of every ALI member in a state and we started out, and I don't remember, and then COVID intervened and we couldn't do it. We probably went to maybe 23 or 24 states and we would have a dinner, in California we had two because it's so big. We'd have a dinner with ALI members and just say, "What do you think?"
Originally, the idea was that we would ask them what they thought we ought to do the second 100 years, but we rapidly realized that even our own members, many of them didn't understand the process. We were in the middle of the Insurance project then, and a lot of, especially insurance defense lawyers, were really mad at us for the wrong reason and they didn't understand about first drafts or how we did anything. So it was very important to go around and talk to people about what we should do. As you know, we had some legislatures in the country that introduced, based on completely wrong information, legislation that in one case said that the courts had to ignore the Restatements. We were able to respond to that usefully and appropriately because we'd had these dinners and heard things.
The other thing that changed, I think, as a result of the dinners, and this will come up from time to time, is that we were being attacked both on the Sexual Assault project and on the Insurance Law project, two very different things. A lot of it was from social media, which was something that didn't happen 100 years ago, or even 50 years ago. It was very interesting to hear that a lot of our members were mad that we didn't respond to this, because culturally the idea was, you can say if this is wrong, but my impression was that we just don't respond to criticism. Our work stands for itself and we just don't respond. Well, it turned out at these dinners that a lot of our members were mad about that, and I think they were probably right because when the attack was just factually wrong, we at least need to put out something that corrects the record.
One thing that maybe it's worth talking about a little bit that's changed, you may remember that in the beginning, when we had drafts of things, you weren't supposed to show them to anybody. They were private. In fact, I remember if I was going to be arrested by the ALI police because the drafts are so useful, that I would send out an email to my partner saying, "I have draft five of this chapter. If you have litigation or you're working in this area, you can come see it." I was afraid to even put it in the library because I thought they'd come and take my membership back. Then we decided that, for transparent reasons, that we would put it on the internet and we would let everybody see it.
Well, the bad part of that, I think it's still the right decision, is that in both cases, in the sexual assault case discussion and also in the insurance law, for years, people attacked us for what were first drafts and none of it ever came if you would... So you'd go out and talk to people and they'd tell you something that had never been passed by anyone. So I think it's important for people to understand when you choose Reporters, you choose them because they're subject matter experts. Of course, they have a point of view. To their credit, what they've agreed to do ultimately is sublimate their personal point of view until they get the ALI's point of view, which is what happens through the process that takes many years.
I think we need to do a better job of explaining both to our members, and of being more responsive on social media, when people are calling out both the Reporters and the ALI for having a skewed point of view about something, when it's a first draft, which is, you got to start somewhere. So that is one. I think social media has changed a lot of things and that we need to be probably more aggressive about making sure that when information that is not correct is out there, that we are, at least, correct the record. We're not trying to persuade anybody. We're just saying, "What you said was based on a draft that is not our policy, and in fact, it was seven drafts and four years ago."
Traynor: One of the things we have to be careful of, I think, is to be somewhat modest about ourselves and appreciate where we are in the world in our country, and that was sort of brought home to me. We had a meeting in St. Louis one time of Advisers and Bill Powers, who worked with Mike Green on the Torts project, and then we all went to a ball game after, the St. Louis Cardinals and the Houston Astros and in the ballpark, there was a period where there was a welcoming sign, "Welcome to the different institutions coming." When they mentioned the ALI, Bill Powers nudged me and he said, "Did you feel the pulse go through the audience?"
I think we have to appreciate that we have a great deal to contribute, but so do many organizations and so do many people. One of the challenges for us, I think, is our voice and to how to make that voice effective. I know Geoff Hazard one time, I think, suggested that we're persuasive because we're not authoritative. Nobody has to follow our stuff, except maybe the Virgin Islands at one point and in some states where they follow the law but ALI as the law, we are essentially effective because we don't command any, we're not telling anybody what to do.
Ramo: That's a really important point, Mike. But if I'd been at the ball game, I would've applauded. But it's hard to explain to people what the ALI does. When I was president of the ABA, it was easy, everybody understood what the ABA did. Try to explain the ALI in two sentences, it's really a lot harder.
Traynor: It is, yes. What do you think the future holds for the institution, for the next, let's say, 200 years from now, if we're around, what would you like to have people say about celebrating the 200th anniversary?
Ramo: Yeah, I thought a lot about that when we were figuring out the 100th. As I said, we were going around to ask people what they thought. What I appreciate about where we are, at 100, is that we've reached the point where we're diverse, not just in the ways that people normally think of diversity, and that's gender, and race, and ethnicity, but we've been able in the last, especially I would say 20 years, to be diverse in terms of the kinds of lawyers, especially, who are our active members and in our process. It wasn't just that the room was filled with white men, it was that the room was filled with white men of some, mainly from big firms, who practiced law, and very few people who worked in the government; prosecutors, public defenders, people from the armed forces, even corporate counsel were few and far between, and I think that did skew the conversation in certain ways.
So when I look 100 years ahead, I hope that the richness of whatever the country is then is represented and it's the great intellects from all of those people. I think if we continue to look at what the needs of the country are from the law, then we will be successful in being there 100 years from now.
The other thing that's very important though that we're facing now is that we're completely independent. I mean, you and I could together make three phone calls to foundations that would give us $100 million and they wouldn't tell us what to do, but either they would expect us to do something, or from the outside, it would look like we were being influenced, and we don't do that. So we're very careful about raising money and being sure that we know where the money is coming from and that we're not being influenced. To me, that's probably the biggest challenge certainly in the next 100 years, and that is that we're able to raise enough money that, as our print revenue goes down, we can continue to do our work at the highest level without being beholden to anyone or being perceived as being beholden to anyone.
Traynor: Well, we've talked a lot about our members and I want to say one of the ingredients for our success over 100 years has been our superb staff, the leaders you've mentioned, Stephanie and Ricky and others, that we've just been blessed with a wonderful group of people to help us through the good times and the tough times and the challenging times. For me, I guess I'd like to be able, if I were around in 200 years, another 100 years, to be able to say what I've often said is that The American Law Institute is a prized institution in the life of our country. If we nurture it and work and keep at it and keep at wonderful staff and the culture that you've talked, that we've talked about here, I think there is a good chance that we can celebrate and have a wonderful 200th anniversary.
Ramo: I've always felt and said, and I've been disappointed by some, that lawyers are both the architecture, architects, and the foot soldiers of the democracy. We're seeing that in a lot of ways today, as you and I are talking both internationally and nationally, how important that is when it goes right and the ALI is an example of a place where, and this is why diversity of opinion is so important, it's not just diversity of background, but that we have people from all parts of the political spectrum who are lawyers. The work doesn't happen without compromise. Nothing happens without compromise. We wouldn't have, you mentioned, the Boskey Motion. We wouldn't have anything to publish if people didn't compromise. We have lost that understanding in some parts of our country. That compromise is required for a true democracy and we are the example of how it works.
Traynor: I think that's a good place to... See, what a wonderful chance it is for me to have a conversation with you about our history and the ALI.
Ramo: How lucky for me to have you as a friend.
Traynor: Thank you. Thank you.