THE QUARTERLY NEWSLETTER OF THE AMERICAN LAW INSTITUTE

Annual Meeting RecapThe American Law Institute’s 92nd Annual Meeting took place May 18-20, 2015, in Washington, DC. The agenda consisted of five projects with drafts up for approval and three projects with drafts for discussion only—the Foreign Relations project presented drafts both for approval and discussion. The Meeting also featured distinguished speakers on each of the three days, as well as the Distinguished Service and Young Scholars award presentations.

See inside this issue for complete details and images from the Annual Meeting.

THE PRESIDENT’S LETTER

Our Annual Meeting in May marked the completion of the first year of our sixth Director Richard Revesz. With his leadership, ably abetted by our Deputy Director Stephanie Middleton, this has been an extraordinarily interesting and productive year. We are now working on 20 projects approved by the Council (probably the maximum we can handle); we approved partial drafts of five projects at the Annual Meeting; we are at last being cited by name under a change in The Bluebook rules; and during this ALI year, we have had the enthusiastic acceptance by 158 new members nominated and elected using our new membership process. Another important milestone will be the introduction of the Restatement of Employment Law, which will be in print before the end of the summer.

Our website renovation is now complete, and members have been sent e-mails enabling them to set their own passwords for entering the private side of our online presence. If you have not been regularly going to the website, it is worth doing so now, as it is a much livelier and more up-to-date source of information about and for our members. We have notified you, using other means, about the availability online of the important presentations at our Annual Meeting by FBI Director James Comey; former Massachusetts Chief Justice and ALI Executive Committee member Margie Marshall; Senators George Mitchell and Olympia Snowe; ABA President William Hubbard; Larry Sonsini, Chairman of Wilson Sonsini Goodrich & Rosati; and D.C. Circuit Judge Sri Srinivasan. Even for those of us lucky enough to have heard each of these important talks, it is terrific to be able to revisit them and share them with colleagues.

What cannot be reproduced if you are not at the Annual Meeting are the fascinating debates and conversations about our projects and the discussion leading to votes. Each of you has a governance role in voting to approve or amend the drafts presented at the Meeting. In our best tradition, discussion of even the most difficult topics—from the Model Penal Code Sexual Assault provisions (presented at the May 2015 Meeting for discussion only) to a serious debate

ALI President Roberta Cooper Ramo, Treasurer Wallace B. Jefferson, Secretary Paul L. Friedman, Membership Committee Chair Yvonne Gonzalez Rogers, and Nominating Committee Chair Diane P. Wood at the opening session of the 92nd Annual Meeting

Ivan K. Fong, Steven S. Gensler, Samuel Issacharoff, and Kathleen O’Sullivan

continued on page 22

VOLUME 37 NUMBER 3 SUMMER 2015

Council ElectionsAt the opening session of the Annual Meeting, Nominating Committee Chair Diane P. Wood presented four nominees for election to Council—Ivan K. Fong, Senior Vice President of Legal Affairs and General Counsel at 3M; Steven S. Gensler, Associate Dean of Research and Scholarship and the Welcome D. and W. DeVier Pierson Professor of Law at the University of Oklahoma College of Law; Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law at New York University School of Law; and Kathleen M. O’Sullivan, partner and co-chair of the appellate practice at Perkins Coie LLP. The membership voted to approve all of them. Short biographies of all ALI Council members can be found on the ALI website.

EDITOR

Marianne M. Walker215-243-1627mwalker@ali.org

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.

ALI Launches New WebsiteWe are pleased to announce the launch of our new website.

ALI is excited to announce the launch of our newly designed website, still located at the web address www.ali.org. The site’s homepage will continue to feature news about the Institute and its members, and we’ll continue to offer the same access to our projects, publications, and member-only areas while providing a site with enhanced features that is easier to navigate and more user friendly.

Some new site highlights include:

• An enhanced Member Directory where members may add and edit biographies and share contact information with other members

• An improved search function

• A reorganized and updated Publications section, allowing site visitors to easily purchase our work

• Expanded Meetings and Projects sections with members-only areas, customized to Members’ project roles

Upcoming Meetings & EventsFor more information, visit www.ali.org

SEPTEMBER 2015September 10 (JOINT)Restatement of the Law Third, Torts: Liability for Economic HarmPhiladelphia

September 11 (JOINT)Principles of the Law, Election LawPhiladelphia

September 17 (Advisers) September 18 (MCG)Restatement of the Law, Charitable Nonprofit OrganizationsPhiladelphia

September 24 (MCG) September 25 (Advisers)Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other OrganizationsNew York

OCTOBER 2015October 1 (Advisers) October 2 (MCG)Restatement of the Law Fourth, PropertyPhiladelphia

October 8 (JOINT)Model Penal Code: Sexual Assault and Related OffensesNew York

October 8 (JOINT)Restatement of the Law Fourth, Foreign Relations Law: JurisdictionNew York

October 9 (JOINT)Restatement of the Law Fourth, Foreign Relations Law: TreatiesNew York

MAY 2016May 16 - 182016 ANNUAL MEETINGWashington, DC

VISIT THE NEW SITE ONLINE NOW.

2 THE ALI REPORTER

THE DIRECTOR’S LETTER BY RICHARD L. REVESZ

Clarifying the Nature of the ALI’s Work The American Law Institute appropriately describes itself as “the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law.” From time to time, it is important for the ALI, as for all organizations, to spend time and energy clarifying its own mission. Over the past year, we have devoted significant effort to this important endeavor.

Because the document that describes the mission of the ALI in the most sustained way is our Style Manual (formally “Capturing the Voice of The American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work”), our clarifying effort took the form of revisions of that Manual. It’s a wonderful document, which you might want to download (www.ali.org/publications/style-manual). The revision process was undertaken by a Committee on Institute Style, which was very ably chaired by Professor Mary Kay Kane. The Committee’s recommendations were then adopted by the Council in January.

I will focus on three highlights. First, the revised Style Manual draws a clear distinction among our major types of works—Restatements, Model or Uniform Codes, and Principles projects—based both on the primary audience for our guidance and the form in which such guidance is provided. “Restatements are primarily addressed to courts. They aim at clear formulations of common law and its statutory elements or variations.” Codes, such as our enormously influential Uniform Commercial Code, which we do in partnership with the Uniform Law Commission, and Model Penal Code “are addressed to legislatures, with a view toward legislative enactment. They are written in prescriptive statutory language.” Principles “are primarily addressed to legislatures, administrative agencies, or private actors. They can, however, be addressed to courts when an area is so new that there is little established law.” Style Manual p. 4. Principles will often take the form of best practices for either private institutions (e.g., our just launched Principles of Compliance) or public institutions (e.g., our also just launched Principles of Police Investigations).

The next two highlights concern the nature of Restatements: the interpretation of what a Restatement black letter rule is, and the inquiry that should be undertaken in formulating such a rule. On the former question, a Restatement aspires to do exactly the same work as a common law judge. In the words of my legendary predecessor (Style Manual, p. 6), Professor Herbert Wechsler, which are quoted on the wall of the conference room in the ALI headquarters in Philadelphia: “We should feel obliged in our deliberations to give weight to all of the considerations that the courts, under a proper view of the judicial function, deem it right to weigh in theirs.”

But, as the Style Manual indicates (p. 6), “what a Restatement can do that a busy common-law judge, however distinguished, cannot is engage the best minds in the profession over an extended period of time, with access to extensive research, testing rules against disparate fact patterns in many jurisdictions.”

Finally, the inquiry involved in fashioning Restatement black letter rules contains four principal elements. I’ll quote from the Style Manual (p. 5) because the language was carefully vetted by the Council:

The first is to ascertain the nature of the majority rule. If most courts faced with an issue have resolved it in a particular way, that is obviously important to the inquiry. The second step is to ascertain trends in the law. If 30 jurisdictions have gone one way, but the 20 jurisdictions to look at the issue most recently went the other way, or refined their prior adherence to the majority rule, that is obviously important as well. Perhaps the majority rule is now widely regarded as outmoded or undesirable. If Restatements were not to pay attention to trends, the ALI would be a roadblock to change, rather than a “law reform” organization. A third step is to determine what specific rule fits best with the broader body of law and therefore leads to more coherence in the law. And the fourth step is to ascertain the relative desirability of competing rules. Here social-science evidence and empirical analysis can be helpful.

One of the misconceptions that I’ve most encountered during my first year as Director concerned the view, sometimes expressed in meetings of our project Advisers, that Restatements needed to follow the majority rule. The preceding paragraph provides a clear answer to that question. But the Style Manual also cautions us (p. 6) that “if a Restatement declines to follow the majority rule, it should say so explicitly and explain why.” Together with Stephanie Middleton, our spectacular Deputy Director and my partner in guiding the substance of each of our projects, I always remind Reporters of the importance of this command. By being transparent, we facilitate the opportunity for vigorous debate on the content of our rules—which is a hallmark of the ALI and what makes us both distinctive and influential.

On the nature of legal change, the analogy between a Restatement and the common law is very helpful (Style Manual, p. 6):

“Like a Restatement, the common law is not static. But for both a Restatement and the common law the change is accretional. Wild swings are inconsistent with the work of both a common-law judge and a Restatement. And while views of which competing rules lead to more desirable outcomes should play a role in both inquiries, the choices generally are constrained by the need to find support in sources of law.”

So, with this clarification of the nature of our own work under our belts, the ALI’s important work process clarifying the law can continue to move forward.

SUMMER 2015 3

Actions Taken at the 92nd Annual MeetingMONDAY, MAY 19

Restatement of the Law Fourth, The Foreign Relations Law of the United States, Sovereign Immunity and Treaties

Sovereign Immunity, Tentative Draft No. 1, Chapter 5, §§ 451, 453, 458, and 460 (Immunity of States from Jurisdiction) was presented for approval. Treaties, Discussion Draft, Chapter 2, §§ 101-106 (Status of Treaties in United States Law) was introduced for discussion only. After the Reporters fielded comments on the various Sections for approval, the membership voted to approve Sovereign Immunity, Chapter 5, §§ 451, 453, 458, and 460 subject to the discussion at the Annual Meeting and to the usual editorial prerogative. As expected, no vote was taken on Treaties.

Restatement of the Law, The U.S. Law of International Commercial Arbitration

Presented for membership approval was Tentative Draft No. 4, which includes Chapter 1, General Provisions (§§ 1-1(r) and 1-1(ff )) and Chapter 2, Enforcement of the Arbitration Agreement. The Reporters received comments from the membership, and subject to the discussion at the Meeting and to the usual editorial prerogative, the membership voted to approve all Sections presented.

TUESDAY, MAY 20

Model Penal Code: Sexual Assault and Related Offenses

On the agenda was Discussion Draft No. 2, which included the following Sections of the draft:

• Substantive Material: I. Proposed Sections 213.0 to 213.11; II. General Commentary; III. Statutory Commentary (Sections 213.0-213.9)

• Evidentiary Material: I. Proposed Section 213.10; II. Commentary.

The membership discussed and debated the Sections, including the topics of sexual contact, force and consent, and offenses where the victim is intoxicated. The Reporters fielded numerous questions and comments, but, as expected, no vote was taken on the draft.

Principles of the Law, Government Ethics

On the agenda for approval was Tentative Draft No. 1, Chapter 4, The Election-Related Activities of Public Servants. The membership discussed the Principles’ defined limits on the ability of government officers and employees to use public resources for their personal or partisan benefit in elections. The membership voted to approve the Chapter subject to the discussion at the Meeting, which included a suggestion that the Reporters give due consideration to the issue of the off-duty activities of public employees, and to the usual editorial prerogative.

Judge Lee H. Rosenthal leads the discussion of Restatement Fourth, The Foreign Relations Law of the United States, with Coordinating Reporters Sarah H. Cleveland and Paul B. Stephan and Reporters Curtis A. Bradley, Edward T. Swaine, and David P. Stewart.

ALI Director Richard L. Revesz leads the discussion of Tentative Draft No. 4 for Restatement of the Law, The U.S. Law of International Commercial Arbitration, with Reporter George A. Bermann and Associate Reporters Jack J. Coe, Jr., Christopher R. Drahozal, and Catherine A. Rogers.

ALI President Roberta Cooper Ramo presides in a session on the Discussion Draft in the Sexual Assault project with Reporter Stephen J. Schulhofer and Associate Reporter Erin E. Murphy.

Professor Douglas Laycock leads the discussion of Principles of the Law, Government Ethics, Tentative Draft No. 1, with Reporter Richard Briffault and Associate Reporter Richard W. Painter.

4 THE ALI REPORTER

Restatement of the Law, The Law of American Indians

The Reporters presented Tentative Draft No. 1, Chapter 1, Federal–Tribal Relations. The membership had the opportunity to comment on all 10 Sections of Chapter 1, including General Terms, Federal–Tribal Relationship, American Indian Treaty Law, Federal Legislation, and Breach-of-Trust Claims. Subject to the discussion at the Meeting and to the usual editorial prerogative, the membership voted to approve §§ 1-9 of the draft.

WEDNESDAY, MAY 20

Restatement of the Law, Liability Insurance

Professor Tom Baker presented Chapter 1, Basic Liability Insurance Contract Rules, and Chapter 2, Management of Potentially Insured Liability Claims, for discussion only by the membership. Members commented on many areas of the draft, including the change from a Principles project to a Restatement project, the definitions Section, the topics of waiver and estoppel, and the duty to defend. As expected, no vote was taken on the draft.

Restatement of the Law Third, Torts: Intentional Torts to Persons

The Reporters presented for approval Chapter 1, Definitions of Intentional Torts to Persons; Transferred Intent (§§ 101-105 and 110). For discussion only were Chapter 1 § 101(d), and Comments f, g; § 104(b), and Comment d; and § 105(c), and Comment j. Professor Simons addressed the motions by Professor Richard W. Wright, and on membership vote the motions were defeated. A motion by Guy Miller Struve to amend § 103 by striking the language in subsection (b), defining a contact as offensive by the standards of someone with an “unusually sensitive sense of personal dignity,” initially received a tied vote from members on the ballroom floor. With the addition of votes from the Reporters, the motion was defeated.

After all motions were addressed, the members voted to approve the draft, subject to the discussion at the Meeting and to the usual editorial prerogative.

Guy Miller Struve rises to argue a motion.

Sexual Assault project Adviser Jennifer G. Long of AEquitas comments on the draft.

A comment on the American Indian Law draft from ALI Council member Larry S. Stewart

Professor Alan B. Morrison comments on a draft for the Foreign Relations Law project.

ALI Council member Gary L. Sasso presides over the discussion of the Restatement of the Law, Liability Insurance, Discussion Draft, with Reporter Tom Baker.

Ninth Circuit Judge Mary M. Schroeder (far left), an ALI Council member, leads the discussion of the American Indian Law Tentative Draft No. 1 with Reporter Matthew L.M. Fletcher and Associate Reporters Wenona T. Singel and Kaighn Smith, Jr.

ALI Treasurer Wallace B. Jefferson leads the discussion of Tentative Draft No. 1.

The team leading the Restatement of the Law Third, Torts: Intentional Torts to Persons—Reporter Kenneth W. Simons and Associate Reporter Ellen S. Pryor

SUMMER 2015 5

will be the two parts of the project — internal control (governance, risk management, and compliance) and external control (enforcement, both criminal and regulatory).

Professor Miller will oversee the compliance portion of the project, and stated that the project will likely include the following topics, among others: attorney–client and work-product privileges; enterprise compliance; vendor and customer due diligence; liability of directors, business executives, and others; and successor liability. Professor Hill, who will oversee the risk-management portion of the project, discussed current challenges in risk management. The first project meeting is scheduled for September 2015.

Reporter Vicki C. Jackson introduced the Project on Sexual and Gender-Based Misconduct on Campus: Procedural Frameworks and Analysis. Professor Jackson discussed the procedural issues that are likely to be the subject of discussion during the project. These include reporting procedures, investigation, interim measures or accommodations during investigation, formal hearings, confidentiality and information sharing, the relationship between the universities and the local police and local criminal justice system, training for investigators and adjudicators, admissible evidence, methods for taking testimony and examining witnesses, the role of lawyers, recordkeeping, appeals, and sanctions and remedies, among others. The first project meeting is scheduled for November 2015.

New Project PreviewsMembers had the opportunity to hear from Reporters on three new ALI projects—Restatement of the Law, Copyright; Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations; and the Project on Sexual and Gender-Based Misconduct on Campus: Procedural Frameworks and Analysis.

Work has just begun on each of these projects, and the first project meetings for each are scheduled for Fall 2015. Members may sign up to join the Members Consultative Group on these and any other projects by visiting the ALI website.

Restatement of the Law, Copyright, was presented by Reporter Christopher Jon Sprigman, who was joined by Associate Reporters Lydia Pallas Loren and R. Anthony Reese. Professor Sprigman said the project could be enormously influential both in shaping law that we have and perhaps providing guideposts for the reform law that Congress might enact in the long term. The project’s mission, he said, “is not to be another combatant” on copyright law, but rather to coalesce the courts’ interpretation of the law into a coherent Restatement and to clarify the law when it may be unclear or inconsistent.

The Restatement will not attempt to cover the whole of copyright law, but will instead focus on several areas identified as most in need, including the subject matter of copyright, the scope of exclusive rights granted by copyright, rules governing ownership and transfer, the standard for copyright infringement, defenses to infringement, and remedies, among others. The first project meeting is scheduled for December 2015.

Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations was presented by Reporter Geoffrey P. Miller and Associate Reporter Claire A. Hill. Professor Miller discussed the inspirations for the project, as well as what he believes

Copyright Reporter Christopher Jon Sprigman responds to member comments with ALI Deputy Director Stephanie Middleton.

Reporter Vicki C. Jackson from Harvard Law School

JOIN THE MEMBERS CONSULTATIVE GROUP ON THESE AND ANY OTHER PROJECTS BY VISITING THE ALI WEBSITE AT WWW.ALI.ORG/PROJECTS.

6 THE ALI REPORTER

But the good news, he reported, is that the United States retains the greatest capital markets in the world, and that if we can maintain a focus on building long-term value, “we will continue to lead the world.”

ALI President Roberta Cooper Ramo moderated a panel of two former Senators, George J. Mitchell and Olympia J. Snowe, both from Maine. Roberta led a spirited discussion about the current state of U.S. politics and the law. President Ramo also spoke to the Senators about their own experiences, including Senator Mitchell’s time as Senate Majority Leader and Senator Snowe’s strong sense of bipartisanship.

The Members Luncheon on the final day of the Annual Meeting featured speaker Margaret H. Marshall, the former Chief Justice of the Massachusetts Supreme Judicial Court. In her speech “Reflections: An

Speakers at the Annual Meeting

Judges Sri Srinivasan and Paul L. Friedman

ALI President Roberta Cooper Ramo with former Senators George J. Mitchell and Olympia J. Snowe

ABA President William C. Hubbard

FBI Director James B. Comey and former FBI and CIA Director William H. Webster

Larry W. Sonsini Justice Margaret H. Marshall

WATCH FULL VIDEOS OF OUR PRESENTERS ON VIMEO AT WWW.VIMEOPRO.COM/AMERICANLAWINSTITUTE/THE-92ND-ALI-ANNUAL-MEETING.

On Monday, the first speaker at the Annual Meeting, Judge Sri Srinivasan of the U.S. Court of Appeals, District of Columbia Circuit, was introduced by Judge Paul L. Friedman of the U.S. District Court for the District of Columbia. Judge Srinivasan’s speech, “The Transition from Advocacy to Adjudication,” addressed his path to ALI membership as well as his path from appellate advocate to appellate judge. He discussed the evolution from being a partial advocate in support of a client to being an impartial judge, as well as the importance of consensus.

William C. Hubbard, the President of the American Bar Association, spoke to the membership about “Our Justice System at an Inflection Point.” Notably, Mr. Hubbard spoke on criminal justice and sentencing reform, including practices that prohibit successful reentry into society and legal-aid funding. Mr. Hubbard, who is also a member of the ALI Council, called the lack of access to justice a “national disgrace” and said it should be a priority for practicing lawyers to work toward a solution.

During a break from the project sessions, the membership heard from James B. Comey, Jr., The Director of the FBI who was introduced by former FBI and CIA Director Judge William Webster. Director Comey spoke to a standing-room-only crowd about “one of the true inflection points in human history”—the digital age. He discussed how the FBI is approaching the challenge of protecting people now that threats manifest at the speed of light.

At the Members Luncheon Honoring New Life Members (Class of 1990) and New 50-Year Members (Class of 1965), Larry W. Sonsini, the Chairman of Wilson Sonsini Goodrich & Rosati, and a member of the ALI Class of 1990, offered remarks on “The Corporate Governance Landscape.” He described a trend of moving away from “director-centric” governance toward “shareholder-centric” governance. He warned of the “politicizing of the boardroom” and a rise in shareholder “activism.” The result, he warned, is a shift in priorities from long-term to short-term.

continued on page 20

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Welcome to the Institute’s Newest Members

New members elected in October 2014, January 2015, and April 2015

ALI 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 lunch on the first day. Photos of the events can be found on these two pages.

RIGHT New Member Dinner co-chairs Catherine C. Carr, Executive Director of Community Legal Services of Philadelphia, and Willard K. Tom, partner at Morgan, Lewis & Bockius LLP

BELOW New members John C. Neiman, Jr., of Maynard Cooper & Gayle PC, Troy A. McKenzie of the U.S. Department of Justice, Office of Legal Counsel, and Peter A. Winn of the U.S. Attorney’s office

BELOW RIGHT New members David E. Patton, Executive Director and Attorney-in-Chief of the Federal Defenders of New York, and David R. Geiger, partner at Foley Hoag LLP

8 THE ALI REPORTER

Distinguished Service AwardThe Distinguished Service Award was presented to Robert H. Mundheim by ALI Director Emeritus Lance Liebman in honor of Mr. Mundheim’s tremendous devotion of time and effort to the Institute. In addition to serving on ALI’s Council for 27 years, he also served on five ALI committees, including as Chair of the Special Committee on Governance.

Mr. Munheim is currently Of Counsel to Shearman & Sterling in New York. Previously, he was general counsel to the U.S. Treasury Department; cochairman of Fried, Frank, Harris, Shriver & Jacobson; executive vice president and general counsel at Salomon Smith Barney Holdings Inc.; and dean of the University of Pennsylvania Law School. He also chaired the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (2006-2011); served as a member of the ABA Task Force on Corporate Responsibility; and was a faculty member of the Vanderbilt Directors’ College, the Duke Directors’ Education Institute, and the Stanford Directors’ College.

On ALI’s projects, Mr. Mundheim is an Adviser on the Restatement of the Law of Charitable Nonprofit Organizations and joined the Members Consultative Group to work on Principles of the Law of Government Ethics. He was also an Adviser and Consultant on Principles of Corporate Governance (1994) and an Adviser on the Restatement of the Law Third, The Law Governing Lawyers (2000).

In accepting the award, Mr. Mundheim reflected on his 45 years as an ALI member and the “intellectual fun of the Institute” as members participate in shaping the law. He also remarked on the previous award recipients, saying he is “enormously proud and grateful” to be included in such a prestigious group.

ALI Director Emeritus Lance Liebman, Robert H. Mundheim, and ALI President Roberta Cooper Ramo

TOP New members Amie Martinez, a shareholder at Anderson, Creager & Wittstruck, and Theresa Amato, Executive Director of Citizen Works, with Council member Carolyn Kuhl, Presiding Judge of the Los Angeles Superior Court

TOP MIDDLE Cedric C. Chao, partner at DLA Piper and new member Stephen J. Ware, professor of law at the University of Kansas School of Law attend the New Members Lunch.

BOTTOM MIDDLE ALI Emeritus Council member Justice Christine M. Durham of the Utah Supreme Court and new member Judge Mary Ellen Tabor of the Iowa Court of Appeals

BOTTOM New member Michael E. Tolbert, a founding partner at the firm Tolbert & Tolbert, Council member Judge Elizabeth S. Stong of the U.S. Bankruptcy Court for the Eastern District of New York, and new member Brent L. Henry, Vice President and General Counsel of Partners HealthCare System

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New Member Spotlight Q&A with AUSA Andrew S. Boutros* Andrew Boutros is an Assistant U.S. Attorney in Chicago in the Office’s Financial Crimes Section. He has conducted some of the Office’s largest and most complex, multi-district, international fraud and cybercrime investigations and prosecutions of business organizations, corporate executives, and others. Elected to ALI in April 2015, he has joined the new projects on Corporate Compliance and Police Investigations.

You have been a federal criminal prosecutor in Chicago for almost eight years, and before that you were in private practice with a prominent firm in Washington, DC, representing corporations and executives as a white-collar defense attorney, FCPA practitioner, compliance counselor, and civil litigator. Why did you decide to become a prosecutor?

I never had the extraordinary honor of wearing the military uniform, but as a first-generation American, I had a strong desire to serve this great country, give back, and at some level make a difference. After becoming a lawyer, and as I handled high-profile white-collar cases in private practice, I realized I could use my legal training, skills, and passion to represent the United States as a prosecutor. It became something I very much wanted to do, and I especially wanted to investigate and prosecute complex, sophisticated white-collar cases. But, as luck would have it, the timing was a bit off; I applied to become a prosecutor during a hiring freeze. Notwithstanding that, I was really committed to serving and willing to move almost anywhere the opportunity would take me. When the freeze lifted, then-Chicago U.S. Attorney Patrick Fitzgerald was the first to make me an offer; I gratefully accepted, and have remained in Chicago as a prosecutor since.

Since becoming a prosecutor, you have led what the national press and legal commentators have described as some of the largest and most complex international fraud and cybercrime investigations and prosecutions. How have you successfully investigated and prosecuted such high-profile cases?

Winston Churchill famously told students of the Harrow School in 1941, “Never, never, never, never—in nothing, great or small, large or petty—never give in, except to convictions of honor and good sense.” My parents raised me to believe that one person can make a difference. As a prosecutor, this translates into a belief that one should not easily give up on a worthy case—particularly one with identifiable victims—just because it may be tough, prolonged, untraditional, or present an uncertain outcome. I like to think that this mindset has served me well. And it of course helps when the federal agents with whom you work as part of a team are among the best in the business. For example, some of my most significant cases have been with phenomenal federal agents of the Department of Homeland Security in Chicago. Together we’ve twice successfully prosecuted what are billed as the largest criminal trade fraud cases in U.S. history, as well as the largest drug trafficker in the world on “Silk Road,” which has

been described as among the most sophisticated dark websites of its time. I am very proud of these successful prosecutions, will always be grateful for the comradery and selflessness of the agents I had the privilege of working alongside, and will always be gratified by the positive difference these prosecutions have made to so many.

You have worked as a defense attorney representing corporations facing high-stakes investigations, and you currently work as a prosecutor who leads such investigations. How valuable is it to have worked on both sides of the aisle? How specifically do your experiences in private practice inform your work as an investigator and prosecutor?

My time in private practice has immensely contributed to my work as a prosecutor. Those prior experiences, and the lessons I learned, inform my strategic decisionmaking throughout all phases of an investigation and prosecution. More specifically, they also allow me to put myself in the “defense’s shoes” when I make a request, issue a subpoena, obtain a search warrant, take a position, or weigh options. Conversely, I feel I am also able to better assess the claims and challenges facing opposing counsel. Simply stated, in my view, a prosecutor with substantive, in-the-trenches private-practice experience has the advantage of being able to “think like a defense attorney,” while at the same time being able to credibly identify with, and relate to, opposing counsel.

You teach a course at the University of Chicago Law School on Corporate Criminal Prosecutions & Investigations that covers a variety of white-collar crime topics, including the Foreign Corrupt Practices Act, a law with which you have been deeply involved for well over a decade. Do students often begin your class with any myths that the course ultimately dispels?

Some students begin the class under the impression that corporate criminal cases, including those involving the FCPA, proceed through a litigative process similar to that of commercial litigation. By that I mean that a complaint is filed, and years’ worth of adversarial discovery takes place, after which a case is resolved through either a settlement or trial. Those impressions quickly evaporate as we work through the material and discuss central topics such as the foundational principles for corporate criminal liability, mandatory and voluntary self-disclosure, corporate cooperation, prosecutorial charging discretion, pre-trial diversion agreements, collateral

* In his personal capacity

10 THE ALI REPORTER

consequences, and other related topics. By the end of the course, students understand that the corporate criminal case has a life cycle unique to itself, and that, more often than not, the process involves persuading prosecutors not to file formal charges at all, or to announce formal charges with an accompanying negotiated resolution. The takeaway for the student is that to successfully practice in the field—whether as a prosecutor or defense attorney—you must understand both the substantive law as well as the distinct procedural framework in which the law operates, especially with respect to corporations.

Think back to your days as a student at the University of Virginia School of Law. Who was your favorite professor and why?

UVA Law is chock-full of dynamic professors, who are as caring as they are accomplished. That said, I really enjoyed learning from Professor Jeffrey O’Connell, who until he passed away in 2013, was one of the leading lights of the insurance and tort bars. Having created the theoretical underpinnings for no-fault insurance, Professor O’Connell was able to import the challenges of the real world into the classroom, where we discussed both problems and solutions. In doing so, he offered wonderfully practical insights, while simultaneously maintaining a demanding academic setting. I not only took Professor O’Connell’s advanced torts course, but I later became his research assistant. And, together, we authored a comprehensive article on certain aspects of tort reform that was published by the Notre Dame Law Review—an experience that was both rigorous and educational. All these years later, I am very grateful for the time and energy Professor O’Connell invested in me. I believe I am a better lawyer for having studied under his care.

In May of this year, you attended The American Law Institute’s Annual Meeting. What were your first impressions as a new member?

First I thought to myself: “Wow, I’m surrounded by some really impressive people.” Then I reflected on how lucky and honored I was to have been elected into this prestigious professional family. As the Meeting progressed, it became apparent to me that ALI members seriously cared about the issues being discussed, and that the Reporters and other leaders welcomed constructive feedback and debate, including from new members. Finally, I was happy to see that the same luminaries who spoke of law by day were able to relax and enjoy friendships and fun by night. Through it all, I was made to feel welcomed.

So far, you have joined the MCG for two ALI projects—Corporate Compliance and Police Investigations. What drew you to these?

My background on the one hand assessing and designing corporate-compliance programs while in private practice, and on the other hand, evaluating such programs as a prosecutor, immediately drew me to the Corporate Compliance project. Also, I think about—and work through—the spectrum of law-enforcement investigations on a near-daily basis. By signing up for these projects, I hope to meaningfully contribute to the

dialogue as well as offer real-world practical observations and commentary, all while staying current on best practices and learning of new ones.

You clerked for Judge Eugene E. Siler, Jr., on the United States Court of Appeals for the Sixth Circuit. Have you continued to stay in touch with Judge Siler? What is the most lasting piece of advice he gave you?

Judge Siler is a role model, mentor, and trusted friend. He is not only a legal giant, but a wonderful person. All these years later, he and I have remained in close contact. When you clerk for Judge Siler, you learn that he is a man whose actions transcend words. His most lasting piece of advice came in the form of me watching firsthand his never-ceasing respectful treatment of others. And by others, I mean everyone, whether from law or life. The lesson to me was that to be a good effective lawyer, one must treat others well, including those with whom one disagrees—and perhaps especially those with whom one disagrees. And perhaps as a variation on this theme, I also learned that an effective advocate disagrees with a position—not the person.

What is your idea of a perfect vacation? Tell us about an especially interesting place you’ve been, or a place that’s on your wish list.

Usually, I prefer active vacations full of sightseeing, adventure, historical exploration, and/or cultural immersion. But, sometimes, I just want to sit in a comfortable chair and look out at a body of water or the Rocky Mountains. My most memorable vacation was my visit to the land of my ancestral roots, Egypt, which was a trip I took shortly before starting law school. I treasured stepping back into history and visiting some of the earliest churches of Christianity and tremendously enjoyed exploring the remains from the ancient kingdoms of Pharaonic Egypt. It was the trip of a lifetime.

continued on page 12

SUMMER 2015 11

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 panel featuring former Senators George J. Mitchell and Olympia J. Snowe, moderated by ALI President Roberta Cooper Ramo.

You recently spoke in London at an ABA event celebrating the 800th anniversary of the Magna Carta. One of the topics you addressed was human trafficking and corporate social responsibility. How, in your view, is the international community addressing forced and child labor and what role can global corporations play in combating this persistent problem?

Forced and child labor are significant problems that know no borders, rank among the most wide-spread and profitable species of transnational criminal activity, and year-after-year ensnare tens of millions of victims. Today, perhaps more than ever, there is widespread recognition of the serious problem, and a growing international consensus to do something about it. That is evident from burgeoning legal mandates such as those found in the President’s Executive Order Strengthening Protections Against Trafficking in Persons in Federal Contracts, the California Transparency in Supply Chains Act, the UK Modern Slavery Act of 2015, and the proposed federal Business Supply Chain Transparency on Trafficking and Slavery Act. In fact, legislators from around the globe are in the process of examining new laws that impose stiff criminal and civil sanctions on individuals—and companies—that are involved in such conduct, or, in the case of businesses, that fail to take measures to eliminate it from their supply chains.

As these new (and proposed) legal requirements illustrate, the winds of corporate social responsibility are no longer carrying only questions about how corporations spend profits, but rather

demand to know how corporations actually earn them. As such, global corporations can play a vital part in combating the various forms of forced, coerced, and child labor by committing to supply-chain integrity, transparency, and corporate good citizenship. To this end, I should note that the ABA and its Criminal Justice Section, as well as prominent leaders within the bar, are educating, training, and offering proactive solutions to the business, corporate, and law-enforcement communities grappling with these emerging challenges. Two such compliance trailblazers—who, unsurprisingly, are also ALI members—are U.S. District Judge Virginia M. Kendall and Perkins Coie Partner T. Markus Funk, both of whom are distinguished alumni of my Office.

Boutros speaking at ABA Event in London celebrating the 800th anniversary of the Magna Carta

Q&A WITH AUSA ANDREW S. BOUTROS CONTINUED FROM PAGE 11

BOTTOM LEFT Dean Andrew R. Klein, Professor Frank Sullivan, Jr. (with Cheryl G. Sullivan), and Professor Jennifer Ann Drobac of Indiana University Robert H. McKinney School of Law

BELOW Bill Wagner, a founding partner of Wagner McLaughlin; Gary L. Sasso, president and chief executive officer of Carlton Fields Jorden Burt; Guy Miller Struve, senior counsel at Davis Polk & Wardwell LLP; and Larry S. Stewart of Stewart Tilghman Fox Bianchi & Cain, P.A.

12 THE ALI REPORTER

Annual Dinner

92nd Annual Meeting Members Reception and BuffetALI hosted a Members Reception at the National Museum of the American Indian. The museum, part of the Smithsonian Institution, houses one of the world’s largest and most diverse collections of its kind. The museum’s curvilinear architecture, its indigenous landscaping, and its exhibitions were all designed in collaboration with tribes and communities from across the hemisphere.

Senior Judge Judith L. Kreeger, State of Florida, 11th Judicial Circuit, Professor Nora V. Demleitner, Washington and Lee University School of Law, and Professor Louise Ellen Teitz, Roger Williams University School of Law

Raymond J. Lohier, Jr., judge on the U.S. Court of Appeals, Second Circuit, and Iris Lan of the U.S. Department of Justice

TOP Dean W. Royal Furgeson, Jr., of UNT Dallas College of Law and Professor Nicholas J. Wittner of Michigan State University College of Law

TOP MIDDLE Justice J. Brett Busby of the Texas Fourteenth Court of Appeals, and two former Chief Justices of the Texas Supreme Court, Wallace B. Jefferson, currently at Alexander Dubose Jefferson & Townsend LLP and Thomas R. Phillips, now at Baker Botts LLP

BOTTOM MIDDLE Chancellor Harvey S. Perlman of the University of Nebraska, Judge A. James Robertson II of the San Francisco Superior Court, and Terrance G. Reed, Lankford & Reed, P.L.L.C.

BOTTOM Members gather at the museum.

SUMMER 2015 13

Class of 1990 Celebrates New Life Member Status by Presenting Class Gift to the Institute

ALI’s new life and 50-year members were honored at a luncheon on Tuesday, May 19, where Andrew D. Hendry of Colgate-Palmolive Co. and Ronald L. Olson of Munger Tolles & Olson presented the 1990 Life Member Class Gift to the Institute.

Mr. Hendry and Mr. Olson, along with Professor Jay L. Westbrook of University of Texas School of Law and Lovida H. Coleman, Jr., served as Co-Chairs of the 1990 Life Member campaign, in which nearly 70 percent of the Class participated in raising over $125,000 to fund key ALI initiatives such as the Judges and Public-Sector Lawyers Expense Reimbursement Program and the Members Consultative Group Travel Assistance Program.

An essential purpose of the gift, Mr. Hendry said, is “to have money not be an impediment to getting the best and brightest working on our projects.”

The Class Gift will also be used to support the Young Scholars Medal and symposium—which raises awareness of the Institute’s work and engages the next generation of preeminent legal minds—as well as ALI’s ongoing law-reform projects.

Representing the Class of 1965 was Professor Geoffrey C. Hazard, Jr., who

served as ALI’s Director from 1984 to 1999. ALI President Roberta Cooper Ramo presented Professor Hazard, her former civil-procedure professor, with a medallion honoring his 50 years as an ALI member. President Ramo praised Professor Hazard for his intellectual vigor and insistence on quality of work, as well as his impact on ethics in the legal profession.

Larry W. Sonsini, the Chairman of Wilson Sonsini Goodrich & Rosati, and a member of the Class of 1990, was the speaker at the luncheon. Mr. Sonsini—who has been involved in many of the most notable IPOs, mergers, and acquisitions in the Silicon Valley and beyond, and has gained international recognition for his expertise in the areas of corporate law, corporate governance, securities, and mergers and

acquisitions—spoke on “The Corporate Governance Landscape.”

Mr. Sonsini described the rise of shareholder activism, the issues caused by shareholder activists, and the way in which boards and companies should respond. He explained that as a result of shareholder activists pressuring companies to return capital to investors, there has been a reduction in investment in Research and Development. Mr. Sonsini ended on a positive note, stating that despite continued efforts by foreign countries to emulate what the United States has done in its markets, “we will continue to lead the world” as long as we don’t lose sight of long-term value.

The Institute’s Class Gift program will continue with the 1991 Life Member Class that will be honored at the 2016 Annual Meeting.

FROM LEFT, TOP: John A. Spanogle, Jr., J. E. Gallegos, Kenneth S. Abraham, John Michael Clear, Thomas R. Phillips, John A. Nadas, Martin D. Begleiter, Jack B. Jacobs, Vance K. Opperman, Ronald William Meister; MIDDLE: Richard W. Wright, W. Amon Burton, Robert A. Goodin, Charles W. Petty, Jr., Catherine Kessedjian, Thomas Carlton Arthur, Bernard D. Reams, Jr., Daniel O. Bernstine; BOTTOM: Ronald L. Olson, Gita F. Rothschild, Larry W. Sonsini, Geoffrey C. Hazard, Jr. (50-Year Member), Diane P. Wood, Joan E. Steinman, Andrew D. Hendry

Class Co-Chairs Ronald L. Olson of Munger Tolles & Olson LLP and Andrew D. Hendry of Colgate-Palmolive Company

14 THE ALI REPORTER

The 1990 Life Member Class GiftThe 1990 Life Member Class Gift will be used to fund important aspects of The American Law Institute’s mission, including the Members Consultative Group Travel Assistance Program, the Young Scholar Award and symposium, Judges and Public-Sector Lawyers Expense Reimbursement Program, and the Institute’s influential law-reform projects.

The Institute is grateful for each and every gift that contributed to the success of this campaign. We appreciate your generosity.

GIVING CIRCLE DONORS

Founders Circle $50,000 and aboveAndrew D. Hendry, New York, NY

Charles Alan Wright Circle $10,000 – $14,999Ronald L. Olson, Los Angeles, CA

Herbert Wechsler Circle $5,000 – $9,999Robert A. Goodin, San Francisco, CA

(Five-year Pledge)Theodore N. Mirvis, New York, NY

(Five-year Pledge)Gita F. Rothschild, Newark, NJ

In memory of Andrew T. BerryLarry W. Sonsini, Palo Alto, CAJohn M. Walker, Jr., New Haven, CT

Soia Mentschikoff Circle $2,000 – $4,999Martin D. Begleiter, Des Moines, IAAlexandra A. Brookshire, Seattle, WAMargaret H. Marshall, Cambridge, MAJohn A. Nadas, Boston, MANicholas Adams Robinson, Sleepy Hollow, NYDavid H. Weinstein, Philadelphia, PAJay L. Westbrook, Austin, TX

DONORS

Sustaining Life-Plus Donors $500 – $1,999M. Bernard Aidinoff, New York, NYDaniel O. Bernstine, Newtown, PA

In memory of Robert B.L. MurphyW. Amon Burton, Austin, TXJohn Michael Clear, St. Louis, MO

(Three-year Pledge)Werner F. Ebke, Heidelberg, GermanyJ. E. Gallegos, Santa Fe, NMRoger J. Goebel, New York, NYRichard E. Gutman, Dallas, TXRoy A. Hammer, Boston, MAGeoffrey C. Hazard, Jr., San Francisco, CADonald B. Hilliker, Chicago, IL

Judith Richards Hope, Washington, DCJerold I. Horn, Peoria, ILWayne S. Hyatt, Atlanta, GAJack B. Jacobs, Wilmington, DE

In honor of Robert H. MundheimCatherine Kessedjian, Paris, France

(Five-year Pledge)George Theodore Lowy, New York, NYLeonard P. Novello, New York, NYRobert L. Parks, Miami, FLThomas R. Phillips, Austin, TX Roberta Cooper Ramo, Albuquerque, NM

In honor of the 1990 Class Co-ChairsBernard D. Reams, Jr., San Antonio, TXJoan E. Steinman, Chicago, IL

(Five-year Pledge)Anthony van Westrum, Golden, CO

(Five-year Pledge)W. Wayne Withers, St. Louis, MODiane P. Wood, Chicago, ILLester Ray Woodward, Denver, COMichael D. Zimmerman, Salt Lake City, UT

Sustaining Life Donors $125 – $250Thomas Carlton Arthur, Atlanta, GAPeter V. Baugher, Chicago, ILJoseph E. Coughlin, Kenilworth, ILJane C. Ginsburg, New York, NYJeffrey N. Gordon, New York, NYDavid I. Levine, Berkeley, CARonald William Meister, New York, NY

In honor of Eugene R. FidellPeter J. Messitte, Greenbelt, MDCharles W. Petty, Jr., Washington, DCDavid E. Pierce, Topeka, KSJohn A. Spanogle, Jr., Washington, DCKate Stith, New Haven, CTScott E. Sundby, Coral Gables, FLCharles Szalkowski, Houston, TXRichard W. Wright, Chicago, IL

Class of 1990 Co-Chairs Lovida H. Coleman, Jr., Andrew D. Hendry, Ronald L. Olson, and Jay L. Westbrook

continued on page 16

SUMMER 2015 15

As Work Expands, ALI Looks to Members for Support of Ambitious AgendaAs Richard Revesz completes his first year as Director, The American Law Institute enters its 2015–16 fiscal year with a growing agenda. The expansion of our work—with a host of new projects launching this fall—is underscored by a new, more modern look for our website which was completely redesigned to improve its functionality and to serve as a source of news about the Institute and its members.

The seven new projects approved in the last fiscal year bring the total number of ongoing projects to 20. And ALI members have embraced this new work—ranging from Copyright to Campus Sexual Misconduct—by quickly joining the Members Consultative Groups (MCGs) in record numbers.

The Institute’s goals are not only to address developing areas of law that are ripe for review, but to do so more efficiently. This means expediting the time in which the projects are completed to ensure they serve as valuable resources for courts as they adjudicate cases, and for institutions—such as universities and policing agencies—as they set policies.

To achieve a new level of efficiency, the Institute has hired larger teams of Reporters—sometimes as many as five Reporters on a project—to draft several sections simultaneously. More Advisers are also being chosen for these projects. Costs, therefore, are sure to rise with these additional Reporter salaries and the expenses of holding larger project meetings.

Maintaining the quality of work that ALI is known for will require that the membership, the Advisers, and the Institute’s staff keep pace so that every project is subjected to the rigorous debate, discussion, and review that are ALI’s hallmark.

The Institute’s reputation for integrity and trustworthiness has always been tied to its independence, a feature that is made possible only by the generous contributions—both intellectual and financial—of its members.

Members like you can help to ensure that our law-reform work thrives. By becoming a Sustaining Member, joining a Giving Circle, or making a general donation, your support will be making an investment in the work we produce.

Contributions help us guarantee that we are always hearing a diverse range of opinions in our unique drafting process. As a result of the Institute’s financial aid initiatives, the full spectrum of ALI’s membership is able to participate in our in-person meetings regardless of financial means. Last year, through the Judges and Public-Sector Lawyers Expense Reimbursement program, 50 members were approved to receive a total of $51,000 to attend the 92nd Annual Meeting, providing critical insight to our projects.

Without the funding provided by members to support the Institute’s mission, ALI’s revered contributions to the law simply would not be possible.

Please make a contribution to The American Law Institute by choosing the Sustaining Member option on your dues statement, or by contacting Development Manager Kyle Jakob at 215-243-1660 or kjakob@ali.org. To make a gift online, please visit www.ali.org/support.

Friends of ALIKenneth S. Abraham, Charlottesville, VADianne Bennett, Buffalo, NYRichard B. Bilder, Madison, WIGeorge S. King, Jr., Columbia, SCProfessor Stephen H. Legomsky, St. Louis, MOJohn Leubsdorf, Newark, NJPaul Marcus, Williamsburg, VAMartin J. McMahon, Jr., Gainesville, FL

Donors as of June 30, 2015.

Giving Circle Donors, Sustaining Life-Plus Donors, and Sustaining Life Donors are Sustaining Life Members for the 2015-2016 fiscal year.

ALI Development Office has made every attempt to publish an accurate list of donors for the 1990 Life Member Class Gift campaign. In the event of an error or omission, please contact Kyle Jakob at 215-243-1660 or kjakob@ali.org.

This report is produced exclusively for the ALI community. The Institute prohibits the distribution of this list to other commercial or philanthropic organizations.

THE 1990 LIFE MEMBER CLASS GIFT CONTINUED FROM PAGE 15

16 THE ALI REPORTER

CLASS OF 1965M. Bernard Aidinoff New York, NYGeoffrey C. Hazard, Jr. San Francisco, CAAlan Lindsay Palm Beach, FL

CLASS OF 1990Kenneth S. Abraham Charlottesville, VAFrank Spruill Alexander Atlanta, GARoy Ryden Anderson Dallas, TXThomas Carlton Arthur Atlanta, GAScott L. Baena Miami, FLPeter V. Baugher Chicago, ILMartin D. Begleiter Des Moines, IADianne Bennett Buffalo, NYDaniel O. Bernstine Newtown, PALawrence Bilder Teaneck, NJRichard B. Bilder Madison, WIAlexandra A. Brookshire Seattle, WAW. Amon Burton Austin, TXMichael F. Butler Washington, DCElizabeth Butler-Sloss London, EnglandJohn Michael Clear St. Louis, MONeil P. Cohen San Rafael, CALovida H. Coleman, Jr. McLean, VAJoseph E. Coughlin Kenilworth, ILWerner F. Ebke Heidelberg, GermanyRobert A. Fippinger New York, NYJ. E. Gallegos Santa Fe, NMJane C. Ginsburg New York, NYRoger J. Goebel New York, NYRobert A. Goodin San Francisco, CAJeffrey N. Gordon New York, NYBrian E. Gray San Francisco, CADavid L. Gregory Jamaica, NYJohn DeWitt Gregory Hempstead, NYPhilip A. Gruccio Vineland, NJRichard E. Gutman Dallas, TXRichard B. Hagedorn Salem, ORRoy A. Hammer Boston, MAEd Hendricks, Sr. Phoenix, AZAndrew D. Hendry New York, NYDonald B. Hilliker Chicago, ILStephen J. Holtman Cedar Rapids, IAJudith Richards Hope Washington, DCJerold I. Horn Peoria, ILWayne S. Hyatt Atlanta, GAJack B. Jacobs Wilmington, DEPeter J. Kalis Pittsburgh, PACatherine Kessedjian Paris, FranceGeorge S. King, Jr. Columbia, SCAbe Krash Washington, DC

Stephen H. Legomsky St. Louis, MOJohn Leubsdorf Newark, NJDavid I. Levine Berkeley, CAGeorge Theodore Lowy New York, NYPaul Marcus Williamsburg, VAMargaret H. Marshall Cambridge, MAMartin J. McMahon, Jr. Gainesville, FLRonald William Meister New York, NYPeter J. Messitte Greenbelt, MDTheodore N. Mirvis New York, NYClyde A. Muchmore Oklahoma City, OKScott W. Muller New York, NYLuther T. Munford Ridgeland, MSJohn A. Nadas Boston, MAJoel S. Newman Winston-Salem, NCLeonard P. Novello New York, NYOtto G. Obermaier New York, NYDale Arthur Oesterle Columbus, OHMichael D. O’Keefe St. Louis, MORonald L. Olson Los Angeles, CAVictor R. Ortega Santa Fe, NMRobert L. Parks Miami, FLCharles W. Petty, Jr. Washington, DCThomas R. Phillips Austin, TXDavid E. Pierce Topeka, KSRobert Pitofsky Chevy Chase, MDMack A. Player Eastpoint, FLSidney Katherine Powell Asheville, NCBernard D. Reams, Jr. San Antonio, TXJohn G. Roberts, Jr. Washington, DCNicholas Adams Robinson Sleepy Hollow, NYGita F. Rothschild Newark, NJLarry W. Sonsini Palo Alto, CAJohn A. Spanogle, Jr. Washington, DCJoan E. Steinman Chicago, ILKate Stith New Haven, CTClaude LeRoy Stuart, III Houston, TXScott E. Sundby Coral Gables, FLCharles Szalkowski Houston, TXAnthony van Westrum Golden, COJohn M. Walker, Jr. New Haven, CTSteven M. H. Wallman Great Falls, VADavid H. Weinstein Philadelphia, PAJay L. Westbrook Austin, TXWayne W. Whalen Chicago, ILW. Wayne Withers St. Louis, MODiane P. Wood Chicago, ILLester Ray Woodward Denver, CORichard W. Wright Chicago, ILMichael D. Zimmerman Salt Lake City, UT

SUMMER 2015 17

Young Scholars Conference Explores the Role of Law in Solving Pension Issues

The American Law Institute recently hosted the ALI Young Scholars Medal Conference “Can Law Solve the Public Pension Problem?” Organized by Amy Monahan, a 2013 ALI Young Scholars Medal recipient and a professor at the University of Minnesota Law School, the conference featured financial sector and industry leaders, leading scholars, and distinguished practitioners.

Professor Monahan structured the conference to take a more proactive approach by examining whether law can be used effectively to prevent pension underfunding from occurring.

There is widespread agreement that state and local pension plans are significantly underfunded, and that such underfunding is likely to lead to some combination of two undesirable outcomes: (1) a reduction in benefits for plan participants and (2) a reduction of funding for governmental services. To date, Professor Monahan believes, much of the discussion has focused on the financial and political causes and implications of the public-pension crises. To the extent such discussions have included legal issues, they have

generally focused on either the legal ability of states and cities to reduce earned pension benefits, or on the possibility of state and local pension liabilities being adjusted in bankruptcy.

The discussion in the conference was divided into four segments in which panelists addressed:

• The possibility and desirability of a clear annual-funding standard

• Exploring funding enforcement

• The political budgeting process

• Alternatives to legal enforcement

The interdisciplinary nature of the conference was critical in exploring these difficult issues of law and politics. One clear takeaway from the conference was that the problems facing public pensions are but a part of larger issues within state and local finance. Several participants emphasized that pension contributions are short changed because of the inherently short-term focus of state and local finance, combined with

cash-method accounting. Participants also emphasized the lack of clear funding standards for public pensions, lack of transparency, and lack of oversight.

While no clear consensus emerged with respect to the role that law can and should play in improving funding outcomes, there was a fruitful initial discussion of various possibilities that warrant further consideration. One acknowledged hurdle of using law to enforce annual-funding requirements is the issue of separation of powers. Courts are hesitant to interfere with the inherently legislative task of allocating public funds. And while several options for federal regulation exist, these face significant political opposition. As the magnitude of public-pension underfunding becomes more and more clear, however, incremental legal reforms that the conference helped bring to light may be able to help cities and states better tackle this debt in a fair and transparent manner, such as through improved public-accounting standards and uniform reporting of unfunded liabilities.

Conference participants discuss and debate problems concerning public pensions and possible solutions.

Professor Amy B. Monahan

18 THE ALI REPORTER

Young Scholars Medal Justice Goodwin Liu of the California Supreme Court, who chairs the Special Committee on the ALI Young Scholars Medal, presented the 2015 medals to Professors Elizabeth Chamblee Burch of the University of Georgia School of Law and Michael Simkovic of Seton Hall University School of Law.

Professor Burch’s research focuses on class actions and large-scale, non-class aggregate litigation. She is noted for her interdisciplinary approach to procedure and often draws from fields that bear on collective action and group decisionmaking, including social psychology, behavioral law, and economics, as well as political philosophy.

Professor Simkovic’s scholarship centers on bankruptcy, corporate finance, secured transactions, and taxation. His article on mortgage securitization market structure is one of the most widely read pieces of research about the causes of the subprime mortgage crisis. It won the writing award from the American College of Consumer Financial Services, and it influenced the Government Accountability Office’s framework for Housing Finance Reform. He has also influenced best practices in multi-billion-dollar corporate bankruptcy litigation.

Professor Burch addressed the membership on the topic of aggregate litigation. She spoke about the core issue across class actions and multidistrict litigation—the principal–agent problem. Professor Simkovic will make a presentation to the membership at the 2016 Annual Meeting.

Professor Elizabeth Chamblee Burch, Justice Goodwin Liu, and Professor Michael Simkovic

SPEAKERS AND PARTICIPANTS

KEY NOTE SPEAKER: DAVID CRANE, STANFORD INSTITUTE FOR ECONOMIC POLICY RESEARCH

PANEL 1: THE POSSIBILITY OF DESIRABILITY OF A CLEAR ANNUAL FUNDING STANDARD

Moderator: Jack M. Beermann, Boston University School of LawPanelists: Keith Brainard, NASRA; Israel Goldowitz, Pension Benefit

Guaranty Corp; Jean-Pierre Aubry, Boston College Center for Retirement Research; Paul Angelo, Segal Consulting

PANEL 2: THE POLITICAL BUDGETING PROCESS

Moderator: Don Boyd, Rockefeller Institute of GovernmentPanelists: Michael C. Genest, Capitol Matrix Consulting; Scott D. Pattison,

National Association of State Budget Officers; Chuck Reed, Hopkins & Carley (former Mayor, San Jose)

PANEL 3: EXPLORING FUNDING ENFORCEMENT

Moderator: James E. Spiotto Chapman Strategic Advisors LLCPanelists: Wallace B. Jefferson, Alexander Dubose Jefferson & Townsend;

Darien Shanske, UC Davis School of Law; Myron W. Orfield, Jr., University of Minnesota Law School’s Institute on Metropolitan Opportunity

PANEL 4: ALTERNATIVES TO LEGAL ENFORCEMENT

Moderator: Kim S. Rueben, Urban InstitutePanelists: Richard M. Hynes, University of Virginia School of Law; Kirk J.

Stark, UCLA School of Law; Marcia Van Wagner, Moody’s Investors Service

PARTICIPANTS Peter Conti-Brown, Gupta Beck PLLCRoberta Cooper Ramo, ALI PresidentBrian Galle, Boston College Law SchoolClayton Gillette, New York University School of LawConrad K. Harper, ALI Council EmeritusChristopher M. Klein, Chief Judge, U.S. Bankruptcy Court,

Eastern District of CALance Liebman, ALI Director EmeritusMartin Lipton, Wachtell, Lipton, Rosen & KatzLuke Martel, National Conference of State LegislaturesStephanie Middleton, ALI Deputy DirectorKathryn Oberly, Judge, District of Columbia Court of Appeals (retired)Shaun O’Brien, AFL-CIORichard L. Revesz, ALI DirectorChristine Sgarlata Chung, Albany Law SchoolNatalya Shnitser, Boston College Law SchoolRobert W. Stein, Society of ActuariesElizabeth S. Stong, Judge, U.S. Bankruptcy Court,

Eastern District of New YorkDavid H. Webber, Boston University School of LawYimeng Yin, Rockefeller Institute of Government

SUMMER 2015 19

The Institute in the Courts: Restatements of Foreign Relations Law The Restatements of Foreign Relations Law of the United States have been cited in recent noteworthy opinions. The Restatement Fourth, which is still in draft form, was cited in a federal circuit case—the first ever citation to that project. The Restatement Second and Restatement Third were cited in opinions delivered this term by the U.S. Supreme Court.

In Jerez v. Republic of Cuba, 775 F.3d 419, Dec. 30, 2014, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a district-court ruling that a Florida state court lacked subject-matter jurisdiction when it granted a default judgment against the Republic of Cuba. In that case, a former Cuban national attempted to enforce a $200 million default judgment that it had obtained in Florida state court against the Cuban government based on claims that he was unlawfully incarcerated and tortured in a Cuban prison in the 1960s and 1970s. The court held that “because no statutory exception to sovereign immunity under the FSIA applies, the Florida state court and the Florida district court lacked subject-matter jurisdiction.” The court cited the Reporters’ Note 2 to § 463 of Restatement Fourth, The Foreign Relations Law of the United States – Sovereign Immunity (Preliminary Draft No. 2, Nov. 5, 2014), in explaining that the FSIA contains a provision that “provides foreign sovereigns a special protection” for the reason that “‘the government is sometimes slow to respond and that the public fisc should be protected from claims that are unfounded but would be granted solely because the government failed to make a timely response.’”

In Jennings v. Stephens, 135 S. Ct. 793, Jan. 14, 2015 (No. 13-7211), the U.S. Supreme Court reversed a Fifth Circuit judgment that held that the court lacked jurisdiction over one of a criminal defendant’s theories of relief because an underlying federal-court judgment had granted habeas relief to the defendant on two other theories of relief but not the theory that was at issue.

Justice Scalia, writing for the Court, rejected the state of Texas’s argument that “each additional basis [for habeas relief ] requires a cross-appeal.” The Court noted that “[c]ourts reduce their opinions and verdicts to judgments precisely to define the rights and liabilities of the parties,” and cited §§ 481-482 of Restatement Third, The Foreign Relations Law of the United States, for the example that “[p]arties seeking to enforce a foreign court’s decree do not attempt to domesticate an opinion; they domesticate a judgment.” The court also cited Restatement Second, Judgments § 27, and, in a dissenting opinion, Justice Thomas cited §§ 18 and 19 of that Restatement.

In Zivotofsky v. Kerry, 135 S. Ct. 2076, Jun. 8, 2015 (No. 13-628), the U.S. Supreme Court affirmed the judgment of the Court of Appeals for the District of Columbia Circuit, invalidating § 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, which directed the Secretary of State, if so requested, to record “Jerusalem, Israel,” rather than simply “Jerusalem” on the passports of American citizens born in Jerusalem. Justice Kennedy, writing for the majority, quoted § 204 of Restatement Third, The Foreign Relations Law of the United States, in concluding that the President “possesses the exclusive power of recognition” of a foreign state, and quoted the definition of “recognition” found in § 203 of that Restatement. In a dissent, Justice Scalia questioned whether enforcement of § 214(d) of the Act would amount to recognition at all, and argued that “§ 214(d) leaves the President free to dispel” any doubts about “whether the United States recognizes Israel’s sovereignty over Jerusalem” by “issuing a disclaimer of intent to recognize.” Citing Restatement Second, Foreign Relations Law of the United States § 104, he argued that such a disclaimer “always suffices to prevent an act from effecting recognition.”

Immigrant’s Story,” she shared tales of her own life, beginning in her native South Africa where she was an outspoken opponent of apartheid, to her time on the bench. She remarked on the momentous timing of her arrival in March 1968—soon after the assassination of Martin Luther King, Jr., and just months before the assassination of Robert Kennedy—and said she felt “achingly lonely and lost,” and did not intend to study the law. It was only after traveling across the United States and learning about the American justice system, she said, that she recognized that “Law could be a means to freedom, equality, and justice for all.” Justice Marshall spoke about her concerns regarding recent rulings and upcoming decisions and urged the membership to remember the words written in the Massachusetts Constitution of 1780, which declared that judges should be “as free, impartial and independent as the lot of humanity will admit.”

SPEAKERS AT THE ANNUAL MEETING CONTINUED FROM PAGE 7

20 THE ALI REPORTER

Government Ethics

Participants in the project meeting, including MCG member Sarah N. Welling of the University of Kentucky College of Law and Adviser Evelyn V. Keyes of the Texas First Court of Appeals

ALI Director Richard L. Revesz with Principles of the Law, Government Ethics Reporter Richard Briffault of Columbia University School of Law and Associate Reporters Kathleen Clark of Washington University School of Law and Richard W. Painter of the University of Minnesota Law School

MCG member Richard G. Feder of the City of Philadelphia Law Department comments during the project meeting.

Sentencing

TOP LEFT ALI Director Richard L. Revesz provides feedback to the project participants with Model Penal Code: Sentencing Reporter Kevin R. Reitz of the University of Minnesota Law School and Associate Reporter Cecelia M. Klingele of the University of Wisconsin Law School.

LEFT Project participants listen as Adviser William J. Leahy, Director of the NYS Office of Indigent Legal Services, provides comments.

ABOVE Reporter Kevin R. Reitz discusses the project with the Advisers and MCG members during one of the meeting breaks.

SUMMER 2015 21

in several of the Torts sections—were civil and enlightening. As always, the comments from experts and from those among us who followed the discussion and made cogent and important suggestions for change or raised key questions although a particular provision was not in their expertise improved upon what was presented. Without the approval of both the Council and the members at the Annual Meeting, nothing is the position of the ALI in any Restatement, Principles, or Model Code project.

What may not be clear if you have not been to an Annual Meeting is the impact that the discussion and the Boskey motion have on our ultimate written work. When the Boskey motion is made, it notes that the Reporter(s) will take the discussion at the Meeting into consideration when revising the drafts that have been approved. That means that the drafts posted on our website before the Meeting are often not reflective of what was approved. Additionally, it is important to understand that, in part because time passes and many discussions are held between the approval of a portion of a Restatement and the final vote of the Council and membership on the whole document, a final Restatement draft is not the work of the Institute until the final vote by the Council and the membership. This flexibility in incorporating discussions at the Annual Meeting into the black letter, the comments, and the other portions of a Restatement is enormously important and reflects the vital role of the discussions at the Annual Meeting. We find sometimes (especially in these days of internet discussion and postings of various kinds) that there may be the wrong impression that a work has been approved when it is still in draft form. Even when there has been a vote approving a portion of a project, changes may be forthcoming because of the discussions. And further changes may occur before the whole project is approved and published.

The quality of our drafting process and of our Reporters, Advisers, and members is what makes our work unique and heavily relied upon by judges and lawyers as they do their work. In its October 2014 Term, the Supreme Court Justices cited ALI work in 19 opinions in 11 cases. And during the just-ended fiscal year, our Restatements and Principles projects were cited more than 3,000 times in reported decisions of the federal and state courts.

About one-third of our members have joined one or more of our Members Consultative Groups, but many of them are not active participants. We also have 465 members serving as project Advisers appointed by the Director. In the coming year, with so many new and important projects starting up, we hope to increase the number of members who actively participate in the MCGs by reading drafts and providing feedback to the Reporters at meetings or by e-mail. Please visit the Projects portion of our website, click on a project that interests you, and then click on the “sign in” link to sign up for it. And put our Annual Meetings on your calendar if you are interested in any of our ongoing work even if you have not yet had a chance to participate in the project meetings.

As the year draws to a close, let me note that we have 100 percent of our Council as donors to our various funds. As I have noted before, it is increasingly important that we be able to self-fund our work, and the expenses of having multiple Reporters in our efforts continually to improve our work and to speed up the drafting process from start to adoption has added to our costs significantly. If you have not done so, I hope before this year ends that you will consider making a donation above and beyond your dues.

On a personal note, I must note with such sadness the death of our dear friend and ALI leader Dan Meltzer. In his lanky Jimmy Stewart body beat the kindest, most generous heart, and from his great brain came incredible insights and improvements to our work from stem to stern. There was an amazing standing-room-only memorial for Dan at Harvard Law School on June 17, and I am hopeful that we will be able to obtain a video to share with you all. Dan left us his wife—our member Ellen Semonoff—two wonderful lawyer sons, and one precious baby granddaughter. And for each of us lucky enough to know him well, he left us with the obligation to carry out, the best we can without him, his deeply thoughtful, kind, and inclusive analysis of everything we do.

Which all leads me to wish you each a summer of good health and many flowers in your gardens and the pleasure of friends and family.

Roberta

Roberta Cooper Ramo President

THE PRESIDENT’S LETTER CONTINUED FROM PAGE 1

22 THE ALI REPORTER

editions of Hart & Wechsler’s The Federal Courts and the Federal System and published widely in law journals.

Elected to The American Law Institute in 1989, he joined the ALI Council in 1999. In May 2013, he was named ALI’s Director Designate and was expected to succeed Director Lance Liebman when he retired in May 2014. But Professor Meltzer withdrew from the position less than five months later for health reasons, and a renewed search ultimately led to the selection of NYU Law Professor and Dean Emeritus Richard L. Revesz, who became ALI Director in May 2014.

On ALI’s Council, he served on the Executive Committee and Nominating Committee. He also served as an Adviser on three projects—Model Penal Code: Sentencing, the Federal Judicial Code Revision Project, and Model Penal Code: Sexual Assault and Related Offenses. He also worked on the revision of the Model Penal Code’s Capital Punishment provision.

Professor Meltzer was a Fellow of the American Academy of Arts and Sciences and served as a member of the Committee on Rules of Practice and Procedure of the United States Judicial Conference. He also served as an Associate Counsel in the Office of Independent Counsel Lawrence E. Walsh on the Iran– Contra investigation.

He is survived by his wife, Ellen Semonoff, their two sons and a daughter-in-law, and one granddaughter.

In Memoriam – Daniel MeltzerDaniel J. Meltzer, a Harvard law professor who held leadership positions with The American Law Institute and spent two years in the White House as a close legal advisor to President Obama, died on May 24 after a long battle with cancer. He was 63.

Professor Meltzer is remembered for his superb intellect and wise counsel, for the rigor and integrity of his legal analysis, and for his generosity of spirit, constant kindness, and unflagging commitment to public service.

A member of the Harvard Law School faculty since 1982, Professor Meltzer was named the Story Professor of Law in 1998.

Throughout his career, Professor Meltzer was drawn repeatedly to government service positions and to working with The American Law Institute on law-reform projects.

From January 2009 to June 2010, he served as the Principal Deputy Counsel to President Obama. When he announced in May 2010 that he would be leaving that post to return to Harvard, The New York Times noted that Professor Meltzer had “worked on nearly every major legal issue the White House has handled, a sprawling portfolio that ranged from domestic policies to national security matters.”

The Times report said Professor Meltzer “played a leading role” in the administration’s efforts to close the military prison at Guantanamo Bay, Cuba, and that he had helped to prepare Supreme Court Associate Justice Sonia Sotomayor for her confirmation hearings.

He was also the White House’s primary liaison to the Justice Department’s Office of Legal Counsel, which evaluates the legality of proposed policies, the Times reported, as well as a key figure in the Obama Administration’s efforts to overhaul health care, “by negotiating and helping to draft an executive order Mr. Obama signed as part of a deal to persuade anti-abortion rights Democrats to back the bill.”

After he left the White House, Professor Meltzer was appointed as a member of the President’s Intelligence Advisory Board and of the Intelligence Oversight Board (IOB).

Professor Meltzer received an A.B. in Economics from Harvard College in 1972 and a J.D. from Harvard Law School, where he was President of the Harvard Law Review, in 1975. Upon graduation, he served as a law clerk to Judge Carl McGowan of the United States Court of Appeals for the District of Columbia Circuit and to Supreme Court Justice Potter Stewart.

From 1977 to 1978, he was Special Assistant to the Secretary of the Department of Health, Education, and Welfare. After that, he worked three years in private practice with the District of Columbia firm of Williams & Connolly.

Revered as an expert in the fields of federal courts and criminal procedure, Professor Meltzer also taught and published in the fields of constitutional law, remedies, and comparative U.S./European federalism. He coauthored several

SUMMER 2015 23

Notes About Members and ColleaguesEffective July 1, Jennifer S. Bard became the first female dean in the University of Cincinnati College of Law’s 182-year history. She holds a secondary faculty appointment in the Department of Internal Medicine in UC’s College of Medicine.

John H. Beisner, a partner at Skadden, Arps, Slate, Meagher & Flom, testified on April 29 in support of the Fairness in Class Action Litigation Act of 2015 before the House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice.

In July, Kathleen M. Boozang, previously an associate dean at Seton Hall University School of Law in Newark, NJ, became the next dean of the law school. She succeeds Dean Patrick E. Hobbs, who had led the school since 1999.

Martin H. Brinkley of Raleigh has been named the 14th dean of the University of North Carolina at Chapel Hill School of Law.

Evan R. Chesler, the chairman of Cravath, Swaine & Moore and an NYU Law Trustee; Troy A. McKenzie, of the Department of Justice’s Office of Legal Counsel; and Professor Thomas Buergenthal of the George Washington University Law School have been honored for “exceptional work” at the NYU School of Law Alumni Awards at the 2015 reunion.

Philadelphia Mayor Michael Nutter has appointed JoAnne A. Epps, Dean of Temple University Beasley School of Law, to lead an independent oversight board formed in response to a recent Justice Department report finding that police too often use lethal force, in part because of poor training.

Susan D. Franck, professor of law at Washington and Lee University, has been named to the Executive Council of the American Society of International Law (ASIL).

American Bar Association President William C. Hubbard has been called to the Bench as a Master of the Honourable Society of the Middle Temple in London.

On May 11, Texas Governor Greg Abbott appointed Wallace B. Jefferson, a partner at Alexander Dubose Jefferson & Townsend and a former chief justice of the Texas Supreme Court, as a member of the Texas Historical Commission for a term to expire on February 1, 2019.

Douglas Laycock was interviewed about the controversial new Indiana religious-freedom law by Religion & Politics, an online news journal that is a project of the John C. Danforth Center on Religion & Politics at Washington University in St. Louis.

Gillian L. Lester, in her third month as dean of Columbia Law School, was profiled in the New York Law Journal as a leader who is “working to crystallize a vision for the future of the school that includes innovating its curriculum and expanding its international perspective.”

Dickinson Wright attorney Leslee M. Lewis has been elected as a Fellow of the American College of Real Estate Lawyers.

George W. Liebmann, author of The Last American Diplomat (I. B. Tauris 2014), has published another book called The Fall of the House of Speyer (I. B. Tauris July 30, 2015).

A new paper by Margaret Colgate Love, Adviser on the Model Penal Code: Sentencing project, details how the project manages collateral consequences by integrating them into the sentencing process. See Managing Collateral Consequences in the Sentencing Process: The Revised Sentencing Articles of the Model Penal Code, ___ Wis. L. Rev. __ (2015).

In its March 2015 issue (Vol. 83, No. 4), Fordham Law Review republished a 1998 article by Gerard E. Lynch, now a judge on the Second Circuit Court of Appeals and previously a longtime professor at Columbia Law School. The Board of Editors selected six of the most influential articles published by the Law Review in its first century and republished one piece in each of its Centennial issues.

Margaret H. Marshall, the former chief justice of the Massachusetts Supreme Judicial Court, was honored on April 10 for her groundbreaking career as her official portrait was unveiled at the John Adams Courthouse in Boston.

Lorelie S. Masters of Perkins Coie, who serves as an Adviser on the Restatement of the Law, Liability Insurance, has written a commentary published on LexisNexis about a key issue in the ALI project. See The “A-C-Ps” of Liability Insurance: Allocation, Contribution, and Proration in the Restatement of the Law of Liability Insurance (LexisNexis 2015).

Troy A. McKenzie has taken leave from his position as a professor at New York University School of Law to join the DOJ’s Office of Legal Counsel as a deputy assistant attorney general.

Jennifer L. Mnookin, the David G. Price and Dallas P. Price Professor of Law at UCLA School of Law, will become the law school’s ninth dean on August 1.

Queen Elizabeth II greets ABA President Hubbard at the ABA’s Magna Carta Commemoration.

24 THE ALI REPORTER

Karen Nelson Moore, a judge on the U.S. Court of Appeals for the Sixth Circuit, has been named president of Harvard University’s Board of Overseers for 2015-2016.

Robert L. Parks, principal and founding partner of The Law Offices of Robert L. Parks, has been selected to receive HistoryMiami’s 11th Judicial Circuit Historical Society’s 2015 Legal Legend Award.

Effective June 15, William J. Perlstein left WilmerHale to join BNY Mellon as Senior Deputy General Counsel. He leads the Legal Department practice groups focused on government affairs, public policy and regulatory affairs, and the corporate services legal functions supporting M&A, IT, real estate, procurement and sourcing support, and cyber security.

David W. Rivkin, International Bar Association President and a partner at Debevoise & Plimpton LLP, where he co-chairs the International Dispute Resolution Group, has been profiled in The National Law Journal for his

ambitious agenda for the IBA, including topics such as human rights, trafficking, climate change, and judicial integrity and corruption. See Dirk Olin, New Leader Sets Agenda for the Bar Without Borders, The NaTioNal law JourNal (Mar. 25, 2015).

Dr. Lindsay Robertson has been selected as the first Chickasaw Nation Native American Law Chair at The University of Oklahoma College of Law.

The University of Florida has announced that Laura A. Rosenbury is the new dean of the Levin College of Law. She is the first female permanent dean in the law school’s 106-year history.

Victor E. Schwartz, a partner at Shook, Hardy & Bacon, recently debated malpractice lawsuits and civil justice reform with Ralph Nader on the Ralph Nader Radio Hour show.

Professor David J. Seipp of Boston University School of Law delivered the Youard Lecture in Legal History at the Oxford University Faculty of Law, on March 10, with the provocative title “When Lawyers Lie: Forging an English Constitution in 1399.”

Robert H. Sitkoff, a Harvard Law School professor, and Max M. Schanzenbach of Northwestern University School of Law posted a study of the Prudent Investor Rule—a rule first crafted by The American Law Institute in the Restatement Third, Trusts, that became the centerpiece of fiduciary investment law-reform efforts in the 1990s and was ultimately adopted by every state. See Max M. Schanzenbach & Robert H.

Sitkoff, The Prudent Investor Rule and Market Risk: An Empirical Analysis (Mar. 20, 2015). Harvard Pub. Law Working Paper No. 15-06; Northwestern Pub. Law Research Paper No. 15-16.

Carol S. Steiker, a Harvard Law School professor, recently delivered a lecture, “Unpremeditated: Capital Punishment and American Law.” She and her brother, Jordan M. Steiker, a professor at the University of Texas School of Law, are writing a book in which they argue that, over the last 50 years, capital punishment has become the subject of top-down, national regulation from the U.S. Supreme Court.

E. Thomas Sullivan, president of the University of Vermont, has been named the 2015 recipient of the Robert J. Kutak Award, which is bestowed annually to honor an individual who has made significant contributions to the collaboration of the legal academy, the bench, and the bar. He will receive the award at a reception in his honor on July 31, during the 2015 ABA Annual Meeting in Chicago.

Mary-Christine Sungaila of Haynes and Boone, LLP, has received two awards: a California Lawyer Attorney of the Year (CLAY) award from California Lawyer magazine for work with significant impact over the past year on the law, the profession, a particular industry, or the public good; and the Orange County Hispanic Bar Association’s (OCHBA) Attorney of the Year Award for her sustained commitment to pro bono appellate work.

Robert Parks receives Legal Legend Award

In MemoriamELECTED MEMBERSRoger Errera, Paris, France

LIFE MEMBERSWilliam T. Bahlman, Jr., Cincinnati, OH; J. Ralph Beaird, Athens, GA; Stewart S. Dixon, Chicago, IL; Louis A. Fuselier, Jackson, MS; William G. Guerri, St. Louis, MO; Meyer Kramer, Brooklyn, NY; Daniel J. Meltzer, Cambridge, MA; John E. Murray, Jr., Pittsburgh, PA; Julian J. Nexsen, Columbia, SC; Eldon Olson, New York, NY; H. Martyn Owen, Brunswick, ME; Robert P. Patterson, Jr., New York, NY; Fletcher Leftwich Yarbrough, Dallas, TX

SUMMER 2015 25

Liability Insurance

ABOVE Adviser Amy Bach, Executive Director of United Policyholders, speaks during the project meeting.

TOP RIGHT Restatement of the Law, Liability Insurance Reporter Tom Baker of the University of Pennsylvania Law School and Associate Reporter Kyle D. Logue of the University of Michigan Law School

RIGHT Advisers gathered in March to review the draft and provide comments to the Reporters.

In Memoriam – Vincent L. McKusick Vincent L. McKusick, the former Chief Justice of Maine and a dedicated member of The American Law Institute for 53 years, died on December 3. He was 93.

A member of the Institute since 1961, Justice McKusick was elected to the ALI Council in 1968 and served 40 years before taking emeritus status in 2008. He also served as an Adviser on several ALI projects—Restatement Third, Torts: Products Liability; Restatement Second, Property (Donative Transfers); the Federal Securities Code; and the Federal Judicial Code Revision Project. He was active in many legal organizations, holding leadership positions in the ABA, the American Bar Foundation, the American Judicature Society, the National Conference of Commissioners on Uniform State Laws, and the Conference of Chief Justices, serving as its President in 1990-91.

From 1952 until his appointment as Maine’s Chief Justice in 1977, Justice McKusick practiced law with the prominent Maine firm of Pierce Atwood in Portland. During his years on the high court, he initiated significant improvements in the

structure and operation of the courts, many involving volunteer efforts from the community. He rejoined Pierce Atwood on his retirement from the bench in 1992.

Justice McKusick received an A.B. from Bates College, an S.B. and S.M. from the Massachusetts Institute of Technology, and an LL.B. from Harvard Law School, where he was president of the Harvard Law Review and graduated magna cum laude. Prior to joining Pierce Atwood, he served successively as law clerk to Chief Judge Learned Hand of the U.S. Court of Appeals for the Second Circuit and Justice Felix Frankfurter of the U.S. Supreme Court. From 1943 to 1946, he served in the U.S. Army, including 14 months participating in the Manhattan Project in Los Alamos, New Mexico.

Justice McKusick was the recipient of numerous awards. In 1993, he was awarded the inaugural Maine Prize, together with his identical twin brother, the late world-renowned geneticist Victor McKusick, in honor of their “nationally recognized contributions to the quality of life.”

26 THE ALI REPORTER

New Members ElectedOn April 14, the Council elected the following 82 persons:

John M. Barkett, Miami, FLScott Bernstein, Miami, FLRichard J. Bonnie, Charlottesville, VAAndre G. Bouchard, Wilmington, DEAndrew S. Boutros, Chicago, ILJeffrey S. Boyd, Austin, TXSteven M. Bradford, Muscatine, IAJohn Bursch, Grand Rapids, MIEmily Buss, Chicago, ILIvonne Cabrera, Downers Grove, ILSusan B. Carbon, Manchester, NHW. Tucker Carrington, Oxford, MSKaren R. Carroll, Vernon, VTRichard T. Cassidy, Burlington, VTSarah L. Cave, New York, NYJohn J. Connolly, Baltimore, MDRobin Kundis Craig, Salt Lake City, UTPamela Craven, Bernardsville, NJCharles G. Curtis, Jr., Madison, WIAndre M. Davis, Baltimore, MDSheila A. DiTullio, Buffalo, NYRobert M. Dow, Jr., Chicago, ILRichard K. Eaton, New York, NYKevin Emas, Miami, FLSamuel Fifer, Chicago, ILBarry Friedman, New York, NYT. Markus Funk, Denver, COKenneth S. Gallant, Little Rock, AR

Brandon L. Garrett, Charlottesville, VADavid R. Geiger, Boston, MASuzanne Goldberg, New York, NYJonathan M. Goodman, Fairfield, CTScott Darren Goss, San Diego, CAMaria D. Granger, New Albany, INJames E. Graves, Jr., Jackson, MSMartin Guggenheim, New York, NYRachel A. Harmon, Charlottesville, VABrent L. Henry, Boston, MACarrie J. Hightman, Merrillville, INJennett Hill, Indianapolis, INRussell F. Hilliard, Portsmouth, NHMichael David Hintze, Redmond, WAClare Huntington, New York, NYMartha Hill Jamison, Houston, TXEmily J. Joselson, Middlebury, VTJude Kearney, Washington, DCHoward Bruce Klein, Philadelphia, PAThomas R. Kline, Philadelphia, PASteve Y. Koh, Seattle, WAShirley Werner Kornreich,

New York, NYErin C. Lagesen, Salem, ORJaynee LaVecchia, Morristown, NJTravis LeBlanc, Washington, DCBenjamin Lerner, Philadelphia, PAJoanne M. Locke, Boston, MA

Cory E. Manning, Columbia, SCEdward M. Mansfield, Des Moines, IABeverly B. Martin, Atlanta, GAGeoffrey P. Miller, New York, NYDouglas K. Moll, Houston, TXAndrew P. Morriss, Fort Worth, TXTina L. Nadeau, Concord, NHCatherine Gage O’Grady, Tucson, AZColin Owyang, Boston, MASue L. Robinson, Wilmington, DEJeffrey Rosen, Philadelphia, PAJohn Ford Savarese, New York, NYStewart J. Schwab, Ithaca, NYElizabeth S. Scott, New York, NYD. Daniel Sokol, Gainesville, FLLaura D. Stith, Jefferson City, MOPeter E. Strand, Kansas City, MOJeannie Suk, Cambridge, MAMary Ellen Tabor, Des Moines, IAKellye Y. Testy, Seattle, WAMary Jane W. Theis, Chicago, ILMichael E. Tolbert, Gary, INMichelle M. Umberger, Madison, WIKaren Lynn Valihura, Wilmington, DEElisa Masterson White, Little Rock, ARPeter A. Winn, Seattle, WAMary Yu, Olympia, WA

Torts: Intentional Torts to Persons

LEFT Restatement of the Law Third, Torts: Intentional Torts to Persons Reporter Kenneth W. Simons of Boston University School of Law and Associate Reporter Ellen S. Pryor of UNT Dallas College of Law

ABOVE Adviser Benjamin C. Zipursky of Fordham University School of Law comments during the meeting.

SUMMER 2015 27

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