q&a with peter winograd

continued on page 22

The October Council meeting was notable for many reasons. It was preceded by a six-hour Program Committee retreat during which the Program Committee reviewed each of our 13 current projects and discussed new projects that Director Richard Revesz proposed to the Committee for recommendation to Council. The four new projects approved by the Council—copyright, conflict of laws, corporate compliance, and property—are described in some detail in this newsletter. This was the first Council meeting with Ricky Revesz as Director and Lance sitting as a Council member. This continuity of leadership is enormously important to us, as our projects take more than a nanosecond to complete. Lance will also serve as the ALI Ambassador to the European Law Institute.

The President’s Letter

A Giant Step for SimplicityThe Council discussed in great detail, and then approved, portions of three project drafts: Restatement Fourth, The Foreign Relations Law of the U.S. (sovereign immunity); Restatement Third, Torts: Intentional Torts to Persons; and the Principles of Government Ethics. These drafts, along with additional drafts going to Council for its January meeting, will give ALI members a full agenda of work in May.

In the “Giant Step for Simplicity” department, at the suggestion of the Director and after a long discussion, first at the Program Committee and then at the Council, the Council approved changing the way our Restatements are numbered

The work of The American Law Institute will grow significantly in 2015 with the launch of four new projects. In October, the ALI Council approved the commencement of work on three new Restatements of the Law—Conflict of Laws, Copyright, and Property—as well as a Principles of the Law project on Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations.

The Institute will tackle the subject of conflicts for the third time, some 80 years after the original Restatement of Conflicts was published in 1934. The Restatement of the Law Third, Conflict of Laws, will eventually supersede the Restatement Second, Conflict of Laws, published in 1971 and partially revised in 1988. The Second Restatement’s “most significant relationship” analysis has been widely accepted by courts, but has also been criticized for its difficulty of administration. Like its predecessors, the new Restatement will cover choice of law, including related issues such as dépeçage and renvoi; judicial jurisdiction; and recognition and enforcement of judgments. The Reporter, Professor Kermit Roosevelt III of the University of Pennsylvania Law School, will be assisted by Associate Reporters Laura E. Little of Temple University Beasley School of Law and Christopher A. Whytock of the University of California, Irvine School of Law.

Four New Projects to Begin in 2015

continued on page 2

Clockwise from top left: Reporters Kermit Roosevelt III, Henry E. Smith, Geoffrey P. Miller, and Christopher Jon Sprigman.

D E D I C A T E D T O C L A R I F Y I N G A N D I M P R O V I N G T H E L A W

Published By The American Law Institute

VOLUME 37 • NUMBER 1

FALL/WINTER 2014

The Reporter

2 | The ALI Reporter

editorMarianne M. Walker

(215) [email protected]

associate editorTodd David Feldman


chief communications & marketing officerJennifer L. Morinigo

(215) 243-1655 [email protected]

managing editorShannon P. Duffy


contributors

Patricia Daly [email protected]

Kyle [email protected]

Andrea [email protected]

membership directorBeth M. Goldstein


The ALI Reporter (ISSN 0164-5757) is pub-lished quarterly by The American Law Insti-tute, 4025 Chestnut Street, Philadelphia, PA 19104-3099. First-class U.S. postage paid at Langhorne, PA.

POSTMASTER: Send address changes and any other communications to 4025 Chestnut Street, Philadelphia, PA 19104-3099.

The ALI’s previous work on the Restatement of Property has resulted in 17 volumes published from the 1930s to 2011. The proposed Restatement of the Law Fourth, Property, seeks to bring comprehensiveness and coherence to the wide-ranging field of American property law. Subjects to be covered include the classification of entitlements, possession, accession, and acquisition; ownership powers; protection of and limits on ownership; divided and shared ownership; title and transfer; easements, servitudes, and land use; and public rights and takings. Professor Henry E. Smith of Harvard Law School has been designated the project’s Reporter. Serving as Associate Reporters are: Sara C. Bronin, University of Connecticut School of Law; John C.P. Goldberg, Harvard Law School; Daniel B. Kelly, Notre Dame Law School; Brian A. Lee, Brooklyn Law School; Tanya D. Marsh, Wake Forest University School of Law; Thomas W. Merrill, Columbia Law School; and Christopher M. Newman, George Mason University School of Law.

Copyright law represents a new undertaking for the ALI. The Restatement of the Law, Copyright, will encompass general copyright law, including the subject matter of copyright; the scope of exclusive rights granted by copyright; copyright formalities; rules governing ownership and transfer of copyright; copyright infringement; defenses to copyright infringement; and remedies. Professor Christopher Jon Sprigman of New York University School of Law is the Reporter. Designated as Associate Reporters are: Daniel J. Gervais of Vanderbilt Law School; Lydia Pallas Loren of Lewis & Clark Law School; R. Anthony Reese of the University of California, Irvine School of Law; and Molly S. Van Houweling of the University of California, Berkeley School of Law.

Addressing the need for a set of recommended standards and best practices on the law of compliance and risk management, Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations, is expected to have four parts: compliance, enforcement, risk management, and governance. Reporter Geoffrey P. Miller of New York University School of Law will be assisted by Associate Reporters Jennifer H. Arlen of New York University School of Law, James A. Fanto of Brooklyn Law School, and Claire A. Hill of the University of Minnesota Law School.

Four New Projects to Begin in 2015 continued from page 1

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Fall / Winter 2014 | 3

While the mission of The American Law Institute is to clarify, modernize, and otherwise improve the law, the Institute at times must pause to clarify and modernize its own work product.

Now is one of those times.

In a move that will simplify the way courts, lawyers, librarians, and law students refer to and cite ALI’s work, the ALI Council voted in October to modify our numbering protocol, effectively changing the titles of many of the Institute’s ongoing projects. In a separate vote, the Council converted two projects from Principles of the Law to Restatements of the Law.

ALI Director Richard Revesz explained that the numbering system devised in 1952 had become confusing. Under the old system, whenever a new Restatement series had begun, all subsequent projects would take on the number of that series—even if the project were being done for the first time.

As a result, several projects started within the past decade in areas of law never before addressed by ALI—such as Employment Law and The Law of American Indians—were titled as part of the Third series of Restatements.

Those projects will now carry titles without any number.

The first book to be published under the new protocol will be Restatement of the Law, Employment Law, which was approved by the ALI membership at the Annual Meeting in May 2014 and is expected to be published in 2015.

However, no change will be made to titles where the numbering is needed to distinguish the current project from previous projects in the same area of law, such as the two current Torts projects now underway, which were titled Restatement of the Law Third because they replace portions of the four-volume Restatement of the Law Second, Torts.

Similarly, because the Institute had already published the Restatement of the Law Third, The Foreign Relations Law of the United States, the new project in that area must be titled Restatement of the Law Fourth.

Titles Changed as Council Simplifies Numbering ProtocolTwo Principles Projects Converted to Restatements

MODIFIED TITLES

Number Removed

Restatement of the Law, Consumer Contracts

Restatement of the Law, Employment Law

Restatement of the Law, The Law of American Indians

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

Converted From Principles To Restatement

Restatement of the Law, Charitable Nonprofit Organizations

Restatement of the Law, Liability Insurance

New Project Titles

Restatement of the Law, Copyright

Restatement of the Law Fourth, Property

Restatement of the Law Third, Conflict of Laws

Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations

Unchanged Titles

Restatement of the Law Fourth, The Foreign Relations Law of the United States

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

Restatement of the Law Third, Torts: Liability for Economic Harm


Q&A with Peter Winograd

Professor Peter A. Winograd was elected to The American Law Institute in 1989 and served last year as one of three co-chairs of the 1989 Life Member Class Gift campaign. The campaign far exceeded its goal of $150,000 by raising $185,891. An Emeritus Professor at the University of New Mexico School of Law, he has played significant roles in a broad range of national associations, including the American Bar Association, the Association of American Law Schools, and the Law School Admission Council where he served as President from 1989 to 1991.

As an ALI member for more than 25 years, you have attended almost every Annual Meeting during that time. What have you gained from this experience?

The Annual Meeting is the largest gathering of ALI’s membership, so it provides a unique opportunity to meet leaders in their fields and to learn more about the issues scheduled for discussion. No other organization brings together such an outstanding group of judges, academics, and practitioners, all intensely focused on the hard work of improving the law. I often strike up conversations with a member seated near me in the meeting room or at one of the special events. Sometimes I see a nametag that bears a familiar name and I get the chance to make a connection with someone whose work I’ve long admired. I always leave the Annual Meeting feeling energized and with a sense of accomplishment that other professional programs rarely, if ever, match.

The 1989 Life Member Class Gift campaign was a tremendous success. As one of three co-chairs, you had a key role in encouraging generosity among your classmates. What did you learn from that experience?

It was with some trepidation that I accepted this assignment. Although I have worked in law school management throughout

my career, fundraising has never been a main responsibility. On the rare occasion when I was asked to solicit a contribution, it involved taking someone out to a fancy dinner, culminating in “the ask” over dessert. But since ALI members are located throughout the United States and abroad, the fine-dining approach was not an option. We determined that our campaign would be conducted entirely by phone and email. Fundraising, plain and simple, no frills.

To my surprise, it turned out to be an extremely pleasant experience. Each of the co-chairs already knew a number of class members, so those calls were an opportunity to catch up with folks we may not have been in touch with for a while. Even when I cold-called total strangers, I found that almost everyone listened to the presentation and then made a contribution or pledge. The fact that we achieved an 80 percent participation rate confirmed for me the high esteem in which the ALI is held by its members and the respect they have for its work. I cannot think of another association that has come close to reaching such a percentage. It is truly remarkable.

Why is it important to financially support The American Law Institute?

I think this is self-evident. ALI’s longstanding mission of clarifying and improving the law—work that is often highly influential in the courts and in legal education—requires substantial resources. In addition to the costs of staff, facilities, and other day-to-day expenses, the Institute subsidizes travel expenses for those in public-service careers who might otherwise be unable to participate in law reform projects. Annual dues are modest, so the generosity of members who can supplement their dues with a voluntary contribution plays an essential role in ensuring the Institute’s financial health.


When did you first think of becoming a lawyer, and how did you end up with a career in legal education?

I was in my junior year of college before I gave much thought to post-graduation possibilities. Even then, the process was mostly one of elimination. Neither business nor advanced studies in political science was appealing, and I never would have survived the first-year anatomy lab in medical school. A favorite professor who had a law degree told me that I “think like a lawyer” and suggested that I would find law school both interesting and challenging. Most important to me was the fact that a legal education could prepare me for a variety of positions, thus postponing the ultimate career decision another three years. I spent the summer after my second year of law school in the legal department at IBM headquarters in Manhattan. I was very impressed by the IBM attorneys and the work they did. The following fall, I was invited to interview with three major firms in New York and, much to my surprise, received an offer on-the-spot from one of them. I later learned that the person who made the offer was not authorized to do so, and I found myself jobless as the recruiting season was ending. Then a brochure from NYU Law School describing opportunities for teaching fellowships landed in my mailbox. I applied and was accepted. I earned an LL.M. degree while teaching two sections of legal research and writing, and quickly became an assistant dean with a broad range of responsibilities. I had circuitously discovered the perfect career niche for me, and, to this day, I give thanks to that law firm for failing to follow up on its offer.

You are a big supporter of the Institute’s Young Scholars Medal. Why is this important to you?

Someone joked after I was elected to the ALI in 1989 that I had single-handedly lowered the average age of the Institute’s membership. Although ALI’s demographics have changed a bit since then, there’s a lingering misperception that most of us are in our twilight years. The Young Scholars Program showcases our efforts to identify great legal minds relatively early in their careers. There simply is no better way to begin engaging the next generation of law reform leaders with the work of the ALI.

Working with the American Bar Association, you helped evaluate more than 30 law school programs for accreditation. What did you learn from that experience?

Serving on an accreditation team is a huge time commitment, from reviewing a school’s self-study, to spending three days on site, to preparing a report used by the Accreditation Committee to determine whether a school complies with the standards. I have visited schools on anyone’s list of the most prestigious, and other schools that would not be so described. In almost every case, I have observed the impact of one or more programs, policies, and/or procedures that had not previously come to my attention.

What accomplishment are you most proud of?

Of the 540 classmates who entered Harvard Law School with me in 1960, perhaps a half dozen were persons of color. This

was not unusual in that era, but things were about to change. By the late 1960s, as I was becoming involved with law school admissions at NYU, I joined with several colleagues at similar schools to launch a joint effort to encourage college students from underrepresented groups to apply. We visited colleges with diverse populations and distributed material from all of the participating law schools, not just our own institutions. We experimented with ways to maximize the likelihood of academic success for those who matriculated. Financial aid problems had to be addressed. The inaugural group was small, but the numbers and incoming-class diversity gradually increased. These students generally performed well and some have had truly outstanding careers, including at least one who has served for many years as a federal judge. In retrospect, this small project marked the start of concerted efforts to diversify the legal profession. I consider it a privilege—and stroke of good luck—to have been present at the beginning and to be able to continue making a difference in the decades that followed.

Lobbying efforts by you and a few other professors led to passage of the federal Public Service Loan Forgiveness Program, which, as the name suggests, makes loan forgiveness available to graduates who serve a minimum of 10 years in public service employment. How did you achieve this success?

I chaired the Government Relations and Student Financial Aid Committee of the ABA’s Section of Legal Education and Admissions to the Bar in 2001-02, and Phil Schrag, longtime faculty member at Georgetown, chaired the Association of American Law Schools’ Government Relations Committee. He had already written about student debt and its particularly heavy impact on law graduates who hold public service positions. He suggested that we work together to press the issue at both the ABA and AALS. Later, ABA President Bob Hirshon appointed a Commission on Loan Repayment and Forgiveness, with which we both worked. The Commission proposed forgiving loan balances that remained after several years of full-time public service employment if scheduled repayments had been made. The ABA House of Delegates endorsed the idea. Both the Law Student Division and the Young Lawyers Division of the ABA emphasized the need to have forgiveness available to attract candidates to public service careers. Thanks largely to the efforts of Senators Ted Kennedy and Mike Enzi, and Congressman John Sarbanes, the College Cost Reduction and Access Act of 2007 embodied our suggestions and created the Program. I should mention, however, that the final chapter of this saga may not have been written yet, because some foundations and organizations now advocate restricting or repealing it. Stay tuned!

What’s your idea of a perfect vacation?

A long weekend in Ogunquit, Maine, in June, September, or early October, disconnected from the rest of the world—no voicemails, no emails, just relaxation. Little has changed since my family first visited there when I was 10. The beach is unsurpassed, and you can walk a mile on the scenic Marginal Way, above the waves crashing along the coast. You can almost feel your own blood pressure dropping.

continued on page 6


You served six years as a public member of the Liaison Committee on Medical Education (the accrediting agency for U.S. and Canadian M.D. programs), and you were later named the first recipient of its Distinguished Service Award. What led you to become involved with this organization?

Having enjoyed my involvement with the law school accreditation process, I thought this would be a unique opportunity to become familiar with the similarities and differences between the delivery of educational programs in these two professions. I was not disappointed. With regard to differences in approach, I always cite student assessment as particularly important. Although law faculties have modified assessment techniques somewhat, the high-stakes, end-of-semester examination remains a significant measurement tool. By contrast, medical students are assessed regularly, almost from the moment of arrival. The LCME requires that students be provided with formal feedback during each required course, and that a narrative description of student performance be included whenever teacher-student interaction permits such assessment. Clearly, there is a lot we can learn from each other.

The ALI’s Class of 1990 will be the next to achieve life member status, and their class gift campaign is just now getting underway. Is there anything you would say to those members?

Be kind to your co-chairs—and answer the phone when they call. Give them time to persuade you that a contribution to ALI is money very well spent. Be as generous as you can to help the Class of 1990 exceed the records set last year, both dollar and participation, by the Class of 1989. We would be exceedingly pleased if the records we set were broken by the very next class.

Liability Insurance

The September 2014 meeting of Advisers on Restatement of the Law, Liability Insurance, gets underway. From left: ALI Director Richard L. Revesz, Reporter Tom Baker of the University of Pennsylvania Law School, and Associate Reporter Kyle D. Logue of the University of Michigan Law School

Two project Advisers: Sheila L. Birnbaum of Quinn Emanuel Urquhart & Sullivan and Kim M. Brunner of State Farm Insurance Companies

Guy Miller Struve of Davis Polk & Wardwell in New York; Carl D. Liggio of McCullough Campbell & Lane in Chevy Chase, MD; and Andrew H. Struve of Manatt, Phelps & Phillips in Los Angeles

Q&A with Peter Winograd continued from page 5


October Council Meeting – New York

From left: Seth P. Waxman of WilmerHale in Washington, DC; Judge Elizabeth S. Stong, U.S. Bankruptcy Court, Eastern District of New York, Brooklyn; and Philip S. Anderson of Williams & Anderson in Little Rock, AR

ALI President Roberta Cooper Ramo asked two Council members to discuss their recent arguments before the U.S. Supreme Court. Sheila L. Birnbaum of Quinn Emanuel Urquhart & Sullivan talked about her argument in Warger v. Shauers on the issue of whether jurors may be questioned post-trial about their deliberations, and Douglas Laycock of the University of Virginia School of Law talked about his argument for the plaintiff in Holt v. Hobbs in which the Court will decide whether inmates have a Constitutional right to grow a beard for religious reasons.

William H. Webster of Milbank, Tweed, Hadley & McCloy, Washington, DC, and Mary Kay Kane of University of California, Hastings College of the Law, San Francisco

Professor Kenneth S. Abraham of the University of Virginia School of Law moderates as Council discusses the latest draft in Restatement of the Law Third, Torts: Intentional Torts to Persons, with Reporter Kenneth W. Simons of Boston University School of Law and Associate Reporter Ellen S. Pryor of UNT Dallas College of Law.

At the meeting of the ALI Council in October: front row: Chief Judge Diane P. Wood, U.S. Court of Appeals for the Seventh Circuit; Justice Goodwin Liu, California Supreme Court; Conrad K. Harper, a retired partner of Simpson Thacher & Bartlett; second row, Steven O. Weise of Proskauer Rose, Los Angeles; Kenneth S. Abraham of the University of Virginia School of Law; back row, Bill Wagner of Wagner, Vaughan & McLaughlin, Tampa, FL


Members Consultative Groups (MCGs) are critical to the success and quality of every ALI project. While Reporters and Advisers typically are experts in the field, those who read or rely on the Restatements, Model Codes, and Principles publications are not. MCGs welcome judges, practitioners, and academics who are experts, but also need those members who may have more limited experience in the field, or no experience, but are simply interested in the topic. These non-expert MCG members bring an important perspective to our drafts. They can tell the Reporters and Advisers when the black letter, Illustrations, and Comments are less than clear to the smart but non-expert reader. They provide a “real world” point of view.

For some MCG members, the opportunity to speak on an important issue is a valuable experience. For others, just listening to the discussion brings an intellectual satisfaction and a welcome change from their daily practice. They come away with a new appreciation of the intricacies of the law, and perhaps are better lawyers, judges, or teachers for all that.

Joining an MCG is easy and can be accomplished directly on the ALI website on the Projects page. MCG members contribute in a variety of ways—by reviewing drafts, attending project meetings, and submitting comments electronically to the Reporters. Your presence is appreciated, but not required.

The chart below shows the status of each project and the anticipated dates of the next MCG meeting. We hope you will consider joining the MCG on one or more of our projects. Do not hesitate to join a project that is in its midlife. Your input is valuable at any stage. The ALI is prestigious and influential, but the discussions and people are friendly, and participation by every member is welcomed.

Join an MCG in—or outside of—your area of expertiseA Message from the Deputy Director

PROJECT(prospectus approval date)

STATUS ADVISERS/MCG MEETING(expected)

JANUARY 2015 COUNCIL

2015 ANNUAL MEETING

Restatement of the Law, The Law of American Indians (2012)

May 2014 Annual Meeting: Discussion Draft, Chapter 1.Five chapters expected.

Feb. 20, 2015

Restatement of the Law, Charitable Nonprofit Organizations (2000)

October 2014 Council Meeting: Council Draft Chapters 1 and 3 (discussion only). Six chapters expected.

Feb. 12-13, 2015

Restatement of the Law Third, Conflict of Laws (2014)

October 2014 Prospectus approved

Restatement of the Law, Consumer Contracts (2012)

November 2014 Advisers & MCG Meeting: Preliminary Draft seven sections. Reporters anticipate a few additional sections.

Fall 2015(discussion only)

Restatement of the Law, Copyright (2014)


Principles of the Law, Data Privacy (2013)

November 2014 Advisers & MCG Meeting: Preliminary Draft Chapters 1 and 2. Three chapters expected.

Fall 2015(discussion only)

Restatement of the Law, Employment Law (2000)

May 2014 Annual Meeting: Proposed Final Draft approved; Spring 2015 Official text expected.

NEW PROJECT COMPLETED PROJECT

Note: The information on this chart is subject to change. Please check the project page on the ALI website for updates and revisions.


PROJECT(prospectus approval date)

STATUS ADVISERS/MCG MEETING(expected)

JANUARY 2015 COUNCIL

2015 ANNUAL MEETING

Restatement of the Law Fourth, The Foreign Relations Law of the United States (2012)

May 2014 Annual Meeting: Jurisdiction-Part IV Chapter 1 [partial] approved; November 2014 Advisers & MCG Meeting: Preliminary Drafts on Jurisdiction, Sovereign Immunity, & Treaties. Reporters are halfway through the project.

Fall 2015(Treaties and

Sovereign Immunity)

Restatement of the Law, The U.S. Law of International Commercial Arbitration (2007)

May 2010, 2012, & 2013 Annual Meetings: Tentative Drafts approved—2 chapters; September 2014 Advisers & MCG Meeting: Chapters 1 & 2. Five chapters expected.

Fall 2016

Restatement of the Law, Liability Insurance (2010)

May 2013 & 2014 Annual Meetings: Chapters 1 and 2 approved as Principles. Four chapters expected; May 2016 Annual Meeting: Chapters 1 and 2 for approval as Restatement; May 2017 Annual Meeting: Chapters 3 and 4 for approval.

March 26-27, 2015

Restatement of the Law Fourth, Property (2014)


Restatement of the Law Third, Torts: Intentional Torts to Persons (2012)

October 2014 Council Meeting: Council Draft No. 2 Chapters 1 and 2. Three chapters expected.

March 6, 2015(Chapter 1

partial)

Restatement of the Law Third, Torts: Liability for Economic Harm (2010)

May 2012 & 2014 Annual Meetings: Chapters 1 and 2 [partial] approved. Nine chapters expected.

Sept. 18, 2015

Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations (2014)


Principles of the Law, Election Law (2010)

December 2014 Advisers & MCG Meeting: Preliminary Draft Parts I and II.

Dec. 4, 2015

Principles of the Law, Government Ethics (2009)

October 2014 Council Meeting: Council Draft Chapter 4. Six chapters planned.

April 24, 2015(Chapter 4

partial)

Model Penal Code: Sentencing (2001)

May 2007, 2011, & 2014 Annual Meetings: Approximately 44 of 50 sections approved.

April 9-10 2015

Model Penal Code: Sexual Assault and Related Offenses (2012)

May 2014 Annual Meeting: Tentative Draft No. 1 discussed, not voted on; October 2014 Council Meeting: Council Draft No. 2 (discussion).

Fall 2015(discussion only) (discussion only)


The Institute in the Courts: Three State Supreme Courts Rely on Restatementsby Andrea Wooster, ALI Case Citations

In four recent opinions, the highest courts of three different states across the country have adopted various Sections of the Restatements of the Law as the law of their respective states.

The Supreme Court of Washington, relying on Restatement Second of Contracts § 45, has adopted the doctrine of substantial performance in the context of unilateral contracts. In April of 2009, a state university, faced with a recession and budget cuts, decided to suspend its policy of awarding annual merit raises to its faculty for the 2008-2009 and the 2009-2010 academic years. A professor filed a class action on behalf of the faculty against the university, claiming that the university’s retroactive retraction of the policy for the 2008-2009 academic year, after the faculty had already substantially performed meritorious work in that year, constituted a breach of a unilateral contract between the university and the faculty. The state supreme court adopted the reasoning of Restatement Second of Contracts § 45 in concluding that, although a unilateral contract could only be accepted through performance, substantial performance in effect created an option contract mandating that the offeror keep the offer open, in recognition of the offeree’s reliance interest in commencing performance; thus, the faculty accepted the university’s offer by working for most of the 2008-2009 academic year in reliance on the promise of a raise in the 2009-2010 academic year. Unfortunately for the faculty, the court held that, while an enforceable unilateral contract had been created, the university did not breach that contract. Storti v. University of Washington, 330 P.3d 159 (Wash. 2014).

In an opinion interpreting Nevada’s Mechanics’ and Materialmens’ Liens Statute, the Supreme Court of Nevada has adopted the definition of actual authority set forth in Restatement Third of Agency § 2.01. The case involved a dispute over the validity of materialmen’s liens that a steel supplier filed against six properties to recover payment for steel it provided for construction projects on the properties. The general contractor for the projects and various other defendants argued that the supplier waived its lien rights as to two of the properties, because its bookkeeper had executed unconditional waiver and lien release forms for those properties; the supplier claimed that the bookkeeper lacked authority to sign the forms. The state supreme court concluded that the bookkeeper was not the supplier’s authorized agent for purposes of the statute’s provision governing waivers and releases. Adopting the language of Restatement Third of Agency § 2.01, the court held, among other things, that the bookkeeper lacked actual authority, because she had no reasonable basis for believing that she was authorized to execute the forms. The court pointed out that the supplier had a company policy under which only corporate officers had the authority to sign lien releases, that the bookkeeper admitted that she lacked authority to execute

the forms, and that, although the supplier’s chief financial officer (CFO)/corporate secretary had sent the bookkeeper an e-mail directing her to prepare the forms at issue, nothing in his e-mail suggested that she should or could sign them. Simmons Self-Storage Partners, LLC v. Rib Roof, Inc., 331 P.3d 850 (Nev. 2014).

In another matter of first impression in Nevada, the Supreme Court of Nevada has adopted the majority approach to unilateral mistake in the donative-transfer context, as set forth in Restatement Third of Property (Wills and Other Donative Transfers) § 12.1 and Restatement Third of Restitution and Unjust Enrichment §§ 5 and 11. In the underlying action, a mother, who had executed a deed gifting her condominium to an irrevocable inter vivos trust that she had established for the benefit of her daughter, rescinded the gift by transferring the condominium back into her own name, alleging, among other things, that she had mistakenly believed that the deed would allow her to retain control over the condominium; the daughter petitioned for an order requiring her mother to transfer the condominium back into the trust. The court, relying on the Restatement approach, remanded for additional proceedings, after concluding that, depending on the circumstances, a donor could potentially obtain either reformation or rescission of a donative transfer based on a unilateral mistake, if the mistake and the donor’s intent were proven by clear and convincing evidence. The court reasoned that the Restatement’s discussion of when rescission or reformation might be appropriate corresponded with Nevada’s overall treatment of mistake and its application of the remedies of rescission and reformation in the contract realm. In re Irrevocable Trust Agreement of 1979, 331 P.3d 881 (Nev. 2014).

In resolving a dispute over who had standing to enforce restrictive covenants encumbering real property, the Supreme Court of New Hampshire has adopted Restatement Third of Property (Servitudes) § 8.1, which abandons the traditional rule under which a restrictive covenant could be enforced only by a beneficiary who owned land that would be benefited by enforcement, in favor of a rule providing that a beneficiary of a covenant in gross can enforce the covenant if it can establish a legitimate interest in enforcement. The property in question was an 18-acre parcel located in the town’s center that a private entity had conveyed to the town, subject to restrictions requiring, among other things, that all buildings constructed on the property be built in an architecturally consistent “Colonial” style. The private entity sought to enforce the restrictions against the town, alleging that the town’s proposed construction of a new fire station on the property would not comport with the covenants; the town argued that the private entity lacked standing to enforce



Sentencing

International Commercial Arbitration

ALI Director Richard L. Revesz opens the joint meeting of Advisers and the MCG for Restatement of the Law, The U.S. Law of International Commercial Arbitration. To his left: Reporter George A. Bermann of Columbia University School of Law and Associate Reporters Catherine A. Rogers of the Pennsylvania State University, Dickinson School of Law; Christopher R. Drahozal of University of Kansas School of Law; and Jack J. Coe, Jr., of Pepperdine University School of Law

Participants in the joint meeting of Advisers and the MCG for Restatement of the Law, The U.S. Law of International Commercial Arbitration

Adviser Horacio A. Grigera Naón of American University, Washington College of Law, comments during the project meeting.

ALI Director Richard L. Revesz (left) chats with the Reporters on the Model Penal Code: Sentencing project—Reporter Kevin R. Reitz of the University of Minnesota Law School and Associate Reporter Cecelia M. Klingele of the University of Wisconsin Law School.

Professor Dennis J. Braithwaite of Rutgers University School of Law-Camden


California Supreme Court Justice-elect Mariano-Florentino Cuéllar, an ALI Council member, was the keynote speaker at the Nov. 6 reception for Bay Area ALI members in San Francisco—an event that coincided with two days of meetings on the Data Privacy project. Just two days before the reception, California voters confirmed his appointment to the Supreme Court, for a term to begin in January, when Professor Cuéllar will leave his post at Stanford Law School.

In remarks that drew a standing ovation, Professor Cuéllar spoke of his personal evolution in how he views the role of law in society.

“It starts with the memory of walking into the Treasury Department on my first day of work after law school. The lobby at Hamilton Place had the smell of new, green paint. I felt the same color” he said.

It was the late 1990s, and “I was a freshly minted Yale-trained lawyer and a recently naturalized American,” Professor Cuéllar said. At Treasury his job was working with Ray Kelly, the undersecretary in charge of enforcement (and a future New York police commissioner).

“Since I’d grown up on the U.S.-Mexico border for years, it was a special experience to work for the man in charge of all those Customs inspectors. … Almost every day involved a border-crossing of sorts: not only between domestic and transnational, but across jurisdiction or statutory schemes.”

One of the areas of persistent difficulty, he said, involved the country of Haiti and the repercussions of the violence and unrest there as the Treasury Department worked alongside the peacekeepers to find ways to assist the Haitian people. “I learned how much depended on making sense of intricate statutes, forging close relationships, and trying to reconcile creativity and bureaucracy.”

The experience at Treasury, Professor Cuéllar said, “in retrospect, was about how law goes from words on paper to decisions and deeds. It continued when I returned to Washington to work in the presidential transition and the White House. ... The nearly two years in DC brought a mix of relief and disappointment.”

During his time in the Obama Administration, he stated, “Americans achieved lasting reforms on food safety and tobacco policy in statutes that passed with bipartisan majorities... Congress reduced the sentencing disparity between crack and powder cocaine with a coalition that included evangelical Christian organizations, state prosecutors, defense counsel, and civil rights groups.”

Mariano-Florentino Cuéllar of Stanford University

San Francisco Reception Keynote

Professor Cuéllar stated that there were also disappointments, and none more wrenching than the devastating earthquake that hit Haiti on January 12, 2010, centered about 16 miles from Port-au-Prince. The death toll exceeded 100,000, and the cholera outbreak in October of that year compounded the tragedy. “The extensive web of civil society organizations that makes America so distinctive mobilized to help. But still the human toll was staggering, as was the reality that Haiti wasn’t a particularly well-functioning place before the earthquake, and has not become so since.”

Haiti is a reminder, he said, that “the world is as complicated and messy as it is beautiful.”

And that island nation’s struggles, he said, taught him that “what we do … depends heavily on professions and institutions that serve as islands of integrity in a world that cannot take integrity for granted: places where a commitment to law and to the work of improving it runs deep, where facts about the world are not ignored because they are inconvenient or daunting, and where people can be honest about what we know and don’t know.”


San Francisco Member Reception

Data Privacy

Cedric C. Chao, whose firm, DLA Piper, hosted the reception, makes introductory remarks. The reception drew scores of ALI members from the Bay Area and beyond, as well as participants in the ALI Data Privacy project meeting. The Institute wishes to thank both Mr. Chao and his assistant, Irina Goga, for all of the work that went into hosting such a terrific event.

From left, Charles E. McCallum, Warner Norcross & Judd, Healdsburg, CA; Charles F. Robinson, General Counsel and Vice President for the University of California; and Professor Evan Tsen Lee of the University of California, Hastings College of the Law in San Francisco

ALI Director Richard L. Revesz (left) with the Reporters Daniel J. Solove of George Washington University Law School in Washington, DC, and Paul M. Schwartz of the University of California, Berkeley School of Law

Above: Robert C. Post, the Dean of Yale Law School (right) talks during a break in the Advisers meeting with Peter A. Winn of the Seattle U.S. Attorney’s Office (left) and Professor Christopher S. Yoo of the University of Pennsylvania Law School.

Left: Participants in the Advisers meeting


Minute in Remembrance

Hugh CalkinsFebruary 20, 1924 – August 4, 2014

The following is an abridged version of the Minute in Remembrance read at the ALI Council Meeting on October 16, 2014.

Hugh Calkins, who died on August 4 at age 90, was a member of the Institute for 53 years and a member of the Council for 32 years until he took Emeritus status in 2007. Hugh was a brilliant lawyer and a citizen passionately devoted to serving the public good. Truly dedicated to the mission of the ALI, he offered his unstinting support for more than five decades, and his piercing mind was an invaluable asset to Council meetings.

Born in Newton, MA, the youngest of six children, Hugh graduated from Exeter Academy in 1941. He went on to Harvard College, where he was elected President of the college newspaper, The Harvard Crimson. When World War II began and he was rejected by the Naval and Army ROTC because he was color blind, he opted to enter the Air Force Maintenance Program. His unit was sent to the Pacific to staff the Guam Air Depot, which serviced B-29 bombers, one of which dropped the atomic bomb.

After the war, Hugh entered Harvard Law School where his first-year academic standing earned him a place on the Harvard Law Review. Later he was elected

President of the Review. That distinction led to coveted clerkships with Judge Learned Hand on the Second Circuit and Justice Felix Frankfurter on the Supreme Court.

Jones Day and Outside Activities Hugh joined Jones Day in 1951, when its attorney count was just 53 and the firm had only two offices. He began to practice in the tax field, became a partner in 1958, and was made the coordinator of the tax group. His partners obviously held Hugh in high regard, as one of them wrote: “His ability to reason, the precision of his analyses, and his comprehension—his sheer intelligence—were of once-in-a-lifetime quality.”

When President Eisenhower created a Commission on National Goals, Hugh served as Deputy Staff Director under Staff Director William Bundy. Later he was a member of the Trilateral Commission created by David Rockefeller with the goal of achieving closer relations among North America, Europe, and the north Pacific.

The American Law InstituteHugh was elected to the ALI in 1961, and thereafter rarely missed an Annual Meeting. He served as a member of the Executive Committee for four years and at various times on the Program Committee, the Finance and Development Committee, and the ALI-ABA Committee on Continuing Professional Education.

Hugh was also a member of the Special Committee on the 75th Anniversary of the Institute. At the Annual Meeting in 1998, he delivered a brilliant survey of the work of the Institute in its first 75 years. At Council meetings, Hugh was always provocative, asking the probing questions that made the Reporters or the Council reexamine and justify material in the drafts.

Harvard Hugh’s devotion to Harvard University was unsurpassed. Elected to the Harvard Board of Overseers in 1966, he was soon invited to serve on the Harvard Corporation—the university’s governing body. In May 1969, when student unrest at Harvard boiled over, Hugh received word that students were seizing control

of University Hall, which housed the President’s office. He took the next plane to Boston and spent the next week meeting with students and faculty, ultimately garnering credit for calming the situation.

ABA Tax SectionAs Hugh’s tax practice flourished, he joined the Tax Section of the American Bar Association and rose in its ranks, ultimately being elected Chair of the Section. The contemporary passage of the Revenue Act of 1986 resulted in a busy year of testifying before committees of the Congress.

A New CareerHugh retired from Jones Day in 1989 at age 65 and turned his talents and energy to the field of education, an area that had remained a vital interest ever since his service on the Cleveland Board of Education in the late 1960s. With his days suddenly free, Hugh concluded he should teach in Cleveland Schools in order to find out what life in the classroom was like. After three years as a floating substitute, he was assigned to a sixth-grade classroom in an underprivileged section of Cleveland where he taught for one year.

In 1991, Hugh’s children, friends, and former clients raised funds to establish in his honor Initiatives in Urban Education, a nonprofit corporation with a mission to improve the education of low-income children in the Cleveland area. Among its initiatives were successful efforts to change Ohio’s school finance system and to found a charter school in the inner city. Hugh served for three years as chair of the board of the charter school, Citizens Academy.

I have not sought to portray Hugh’s rich family life. He leaves a wonderfully supportive wife, Ann, who has in her own right been an active force in the field of education. Their four children, each in his or her own way, reflect Hugh’s commitment and values.

Roswell B. Perkins


Notes About Members and Colleagues• Glenn R. Anderson, director of the

Legal Services Division of the Nova Scotia Department of Justice, has published the third edition of Expert Evidence (LexisNexis Canada 2014).

• On February 7, at the American Bar Association Midyear Meeting in Houston, Kim J. Askew, a partner in the Dallas office of K&L Gates and a member of the Institute’s Council, will receive the ABA diversity commission’s 2015 Spirit of Excellence Award for her commitment to racial and ethnic diversity in the legal profession.

• Thomas E. Baker, professor at the Florida International University College of Law, has recently coauthored two books: the third edition of First Amendment Law: Freedom of Expression and Freedom of Religion (LexisNexis 2014) (with Professors Arthur D. Hellman of the University of Pittsburgh School of Law and William D. Araiza of Brooklyn Law School) and Skills and Values: Constitutional Law (LexisNexis 2013) (with Professors Araiza, Olympia Ross Duhart of Nova Southeastern University, Shepard Broad Law Center, and Steven I. Friedland of Elon University School of Law).

• On September 1, Delaware Supreme Court Justice Carolyn Berger, after serving for more than three decades as a Delaware judge, retired from the bench. She was the first female member of both the Delaware Court of Chancery and the Delaware Supreme Court.

• Sheila L. Birnbaum, a partner in the New York office of Quinn Emanuel Urquhart & Sullivan and an emeritus member of the Institute’s Council, appeared before the U.S. Supreme Court on October 8, urging the Court to reject a claim that jurors should be allowed to testify about possible dishonesty during the jury-selection process (Warger v. Shauers, No. 13-517).

• Ira Mark Bloom, a professor at Albany Law School, coauthored the fourth edition of Federal Taxation of Estates, Trusts, and Gifts (LexisNexis 2014) and the fourth edition of Fundamentals of Trusts and Estates (LexisNexis 2012).

• On July 14, Hildy Bowbeer, who served as an Adviser for Restatement Third, Torts: Liability for Physical and Emotional Harm, began hearing cases as a U.S. Magistrate Judge for the District of Minnesota in St. Paul.

• Brian P. Brooks was appointed as executive vice president, general counsel, and corporate secretary of Fannie Mae effective November 10. He joins Fannie Mae from OneWest Bank where he was vice chairman and chief legal officer.

• Stephen B. Burbank, a professor at the University of Pennsylvania Law School, is the coauthor of a forthcoming article, “Federal Court Rulemaking and Litigation Reform: An Institutional Approach,” 15 NEV. L.J. (forthcoming 2014/2015), which illustrates how, over the past 50 years, changes in the Civil Rules Advisory Committee, whose members are appointed by the Chief Justice of the U.S. Supreme Court, have been associated with shifting the balance against plaintiffs seeking to enforce rights in civil litigation.

• A peak in the Himalayan mountain range has been named after ALI Emeritus Council member William M. Burke of Costa Mesa, CA. Mr. Burke, who at age 72 summited Mt. Everest for the second time, plans to summit this 22,775-foot unclimbed peak, named Burke Khang (Burke Mountain), which stands between Mt. Everest and Cho Oyu, two of the most famous mountains in the world.

• In July, the Alabama State Bar announced the recipients of several awards, three of whom were ALI members. Chief Judge Edward E. Carnes of the U.S. Court of Appeals

for the Eleventh Circuit received the Judicial Award of Merit; John L. Carroll, retired dean of Samford University Cumberland School of Law received the Award of Merit; and Othni J. Lathram of the Alabama Law Institute received the President’s Award.

• ALI Council member Mariano-Florentino Cuéllar, a professor at Stanford Law School since 2001, has been elected to the California Supreme Court. Professor Cuéllar will succeed Justice Marvin Baxter, who declined to seek an additional term.

• Anthony M. DiLeo of New Orleans, LA, has been named to the College of Commercial Arbitrators and to the London Court of International Arbitration (LCIA) Database of Neutrals.

• Christine Michelle Duffy, a senior staff attorney with the Pro Bono Partnership in Parsippany, NJ, is the editor-in-chief of Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide (Bloomberg BNA 2014), the first book to comprehensively address workplace law and human-resource practice relating to gender identity, sexual orientation, and gender expression.

• On October 27, Judge Harold E. Eaton, Jr., was sworn in as an associate justice of the Vermont Supreme Court by Governor Peter Shumlin. Justice Eaton had served on the superior court since 2004.

• ALI Council member Kenneth C. Frazier, the chairman and CEO of Merck & Co., Inc., was honored by the United Nations Foundation and the United Nations Association of the USA at the Global Leadership Dinner on October 22 in New York. The gathering recognizes the many people and organizations that help the UN in its vital humanitarian and development work.



Consumer Contracts

Chicago Member Reception

Reporters on Restatement of the Law, Consumer Contracts, Oren Bar-Gill of Harvard Law School and Omri Ben-Shahar of University of Chicago Law School with Associate Reporter Florencia Marotta-Wurgler of New York University School of Law

Adviser James J. White of University of Michigan Law School, Ann Arbor, MI, provides comments.

Top Left: Guests gather during the reception hosted by Sidley Austin.

Bottom Left: Council members Teresa Wilton Harmon of Sidley Austin in Chicago and Diane P. Wood of U.S. Court of Appeals, Seventh Circuit

Below: Theresa Amato of Citizen Works in Oak Park, IL

The Institute wishes to thank Teresa Wilton Harmon and her firm, Sidley Austin, for hosting this wonderful event.


• On October 1, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia, the Institute’s Secretary, was featured in a Washington Post article, “A federal judge fights to undo an ‘unjust’ sentence,” based on his recommendation of executive clemency for a low-level drug offender on whom he had been required, in 2002, to impose a 27-year sentence because of mandatory guidelines.

• New ALI Council member Elizabeth Garrett, who is the provost and senior vice president for academic affairs at the University of Southern California, has been appointed President of Cornell University; she will take office on July 1, 2015.

• On August 15, Justice Ruth Bader Ginsburg, the second woman to serve on the U.S. Supreme Court, who has played an instrumental role in advancing women’s rights, and Roberta Cooper Ramo, the first female elected president of both the ALI and the American Bar Association, spoke at the opening keynote session of the inaugural symposium of the Women’s International Study Center in Santa Fe.

• ALI Council member Anton G. Hajjar of Washington, DC, has moved to Murphy Anderson, PLLC, as Of Counsel. He continues as general counsel of the American Postal Workers Union, AFL-CIO.

• On August 9 at the ABA’s annual meeting in Boston, James J. Hanks, Jr., a partner in the Baltimore office of Venable LLP, was elected to the Council of the ABA’s Section of Legal Education and Admissions to the Bar for a three-year term.

• Justice Randy J. Holland of the Delaware Supreme Court has received the 2014 American Inns of Court Lewis F. Powell Award for Professionalism and Ethics.

• Professor Vicki C. Jackson of Harvard Law School, Judge Lee H. Rosenthal of the U.S. District Court for the Southern District of Texas in Houston, a member of the Institute’s Council, and Patti B. Saris, Chief Judge of the U.S. District Court for the District of Massachusetts in Boston and Chair of the U.S. Sentencing Commission, have all been elected members of the American Academy of Arts and Sciences.

• ALI member Michael Alexander Kahn of San Francisco and Richard Samuel West have published WHAT FOOLS THESE MORTALS BE!: The Story of Puck: America’s First and Most Influential Magazine of Color Political Cartoons (IDW Publishing 2014), a Library of American Comics book featuring more than 280 full-color Puck cartoons.

• Assistant Presiding Judge Carolyn B. Kuhl of the Los Angeles Superior Court, a member of the Institute’s Council, has been elected to serve as the presiding judge of the court for the 2015 to 2016 term.

• ALI Second Vice President Douglas Laycock argued a high-profile religious freedom case before the U.S. Supreme Court on October 7, urging the justices to recognize a Muslim inmate’s right to grow a beard (Holt v. Hobbs, No. 13-6827).

• ALI Director Emeritus Lance Liebman, Edward F. Greene, senior counsel in the New York City office of Cleary Gottlieb Steen & Hamilton, and Judge Sidney H. Stein of the U.S. District Court for the Southern District of New York were elected to three-year terms by the Board of Trustees of the Practising Law Institute at its annual meeting.

• George W. Liebmann’s book The Last American Diplomat: John D. Negroponte and the Changing Face of US Diplomacy (I.B. Tauris 2012) is now available in paperback.

• The following New York City ALI members received lifetime-achievement awards from the New York Law Journal, as part of the Journal’s Lawyers Who Lead by Example 2014 Awards: ALI Council emeritus Martin Lipton of Wachtell, Lipton, Rosen & Katz; Bettina B. Plevan of Proskauer Rose; Frederick A. O. Schwarz, Jr., chief counsel of the Brennan Center for Justice; New York Solicitor General Barbara D. Underwood; and Peter L. Zimroth of Arnold & Porter. In addition, the following ALI members who are active Senior Judges in New York’s federal courts received the Journal’s public-service award: Guido Calabresi, Amalya L. Kearse, ALI emeritus Council member Pierre N. Leval, Jon O. Newman, Barrington D. Parker, Jr., and John M. Walker, Jr., all on the U.S. Court of Appeals for the Second Circuit; Denise L. Cote, Miriam Goldman Cedarbaum, Kevin Thomas Duffy, Alvin K. Hellerstein, Lewis A. Kaplan, Robert P. Patterson, Jr., Jed S. Rakoff, Shira A. Scheindlin, Sidney H. Stein, and Kimba M. Wood, all on the U.S. District Court for the Southern District of New York; and Jack B. Weinstein of the U.S. District Court for the Eastern District of New York.

• On September 13, Professor Robert E. Lutz of Southwestern Law School in Los Angeles, CA, a Liaison for the American Bar Association Section of International Law to the ALI’s Restatement of the Law Fourth, The Foreign Relations Law of the United States, received the 2014 Warren M. Christopher International Lawyer of the Year Award from the State Bar of California’s International Law Section.

• In October, Jami W. McKeon, a partner in the Philadelphia office of Morgan, Lewis & Bockius, began her five-year term as Chair of the firm, the first woman to hold the position in the firm’s 141-year history.

• Judge M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit and ALI Council member, authored two recently published articles: “Culinary Ambiguity: A Canonical Approach to Deciphering Menus,” in the Harvard Journal on Legislation (51 Harv. J. on Legis. 227 (2014))

Notes About Members and Colleagues continued from page 15



and “Celebrating Women on the High Seas—in Admiralty Law and Otherwise,” in the Journal of Maritime Law and Commerce (45 J. Mar. L. & Com. 119 (2014)).

• John H. Morrison, a retired partner of Kirkland & Ellis LLP in Chicago, accepted an invitation from a European Union grantee to teach mediation to court personnel and other lawyers in the Kingdom of Lesotho.

• On August 21, Justice Jim A. Moseley, who served on Texas’s Fifth District Court of Appeals for 18 years, retired from the bench. He joined the Dallas office of the firm of Gray Reed & McGraw, where he chairs the appellate section.

• In October, Robert H. Mundheim, an emeritus member of the Institute’s Council, who served as dean and a faculty member of the University of Pennsylvania Law School, received the Penn Law Alumni’s James Wilson Award, which honors a lifetime of service to the legal profession, and Robert C. Heim, a partner in the Philadelphia office of Dechert LLP, received the Penn Law Alumni’s Howard Lesnick Pro Bono Award, which honors sustained commitment to pro bono and/or public service throughout a private-sector career. Also in October, The American Lawyer recognized Mr. Mundheim as a member of its Lifetime Achievers 2014 class, along with seven other lawyers, including former ABA President Martha W. Barnett, a retired senior partner in the firm of Holland & Knight, New York City attorney Michael A. Cooper, of counsel to the firm of Sullivan & Cromwell, Vernon E. Jordan, Jr., senior counsel at Akin Gump Strauss Hauer & Feld, in Washington, DC, and Pittsburgh attorney Charles J. Queenan, Jr., chairman emeritus of K&L Gates.

• Dianne M. Nast, founder of the Philadelphia law firm NastLaw LLC, has been appointed by Judge Jesse M.

Furman of the U.S. District Court for the Southern District of New York to the executive committee in the General Motors Ignition Switch Litigation.

• Richard L. Neumeier, a partner in the Boston office of Morrison Mahoney LLP, stepped down as the Editor of the Defense Counsel Journal after 22 years. The Journal is a quarterly publication of the International Association of Defense Counsel and the oldest continuously published insurance-law journal in North America.

• Fern P. O’Brian, previously with Thompson Hine LLP, has joined the Washington, DC, office of Sedgwick LLP as a partner. She focuses on regulatory matters involving product liability and toxic torts, as well as health-effects litigation.

• Ellen S. Podgor, a professor at Stetson University College of Law in Gulfport, FL, has been selected as the new president of the Southeastern Association of Law Schools, a regional association of law schools that includes 72 member schools and 31 affiliate member schools.

• Fred A. Rowley, Jr., a litigation partner in the Los Angeles office of Munger, Tolles & Olson since 2008, has been appointed to the California Commission on Uniform State Laws.

• Patricia E. Salkin, who in 2012 became the first female dean of Touro College Jacob D. Fuchsberg Law Center in Central Islip, NY, has been appointed the new co-chair of the New York State Bar Association’s Standing Committee on Legal Education and Admission to the Bar.

• Stephen M. Sheppard, formerly associate dean for research and faculty development at the University of Arkansas School of Law in Fayetteville, AR, has become the eighth dean of St. Mary’s University School of Law in San Antonio, TX. He succeeds Charles E. Cantú, who has returned to teaching after seven years as dean.

• Effective August 1, Jane C. Sherburne, former senior executive vice president, general counsel, and corporate secretary of The Bank of New York Mellon Corporation, who currently is a principal of Sherburne PLLC, a legal consulting firm, was appointed to Teledyne Technologies Incorporated’s board of directors.

• On August 8, then ABA President James R. Silkenat, a partner in the New York City office of the firm of Sullivan & Worcester, received the National LGBT Bar Association’s Ally for Justice Award at the ABA’s Annual Meeting in Boston.

• Professor Kami Chavis Simmons of Wake Forest University School of Law in Winston-Salem, NC, has been named director of the law school’s new Criminal Justice Program. The program aims to facilitate critical thinking and scholarly engagement surrounding criminal-justice systems in the United States.

• E. Thomas Sullivan, president of the University of Vermont in Burlington, has published the seventh edition to his casebook, Antitrust Law, Policy and Procedure (LexisNexis 2014) (with Professors Herbert Hovenkamp, Howard A. Shelanski, and Christopher R. Leslie), and the sixth edition to Understanding Antitrust and Its Economic Implications, a hornbook (LexisNexis 2014) (with Professor Jeffrey L. Harrison).

• Mary-Christine Sungaila, a partner in the Orange County and Los Angeles offices of the firm of Snell & Wilmer, was appointed by the Chief Justice of California to the Judicial Council of California’s Advisory Committee on Civil Jury Instructions for a three-year term, which commenced in November.

• New ALI Council member Sarah S. Vance, the Chief Judge of the United States District Court for the Eastern District of Louisiana, has been

Notes About Members and Colleagues continued from page 17


appointed as the chair of the Judicial Panel on Multidistrict Litigation; the seven-judge panel decides whether, where, and to whom to centralize important civil litigation that arises in multiple courts.

• Thomas J. Welsh, principal of the firm of Brown & Welsh, P.C., in Meriden, CT, has been appointed to a second four-year term as a Commissioner of the Connecticut Law Revision Commission. He cochaired two Commission projects during his first term—adopting the 2010 revisions to Article 9 (Secured Transactions) of the Uniform Commercial Code and adopting the Uniform Certificate of Title for Vessels Act in Connecticut.

• Bob Wessels, a professor of international insolvency law at Leiden University in the Netherlands, has been appointed by the European Law Institute as a reporter on the project “Rescue of Business in Insolvency Law.” He served as Co-Reporter, with Professor Ian F. Fletcher of a Report to ALI on “Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases,” published in 2012.

• Nicholas J. Wittner has joined Dykema’s product-liability practice as of counsel in the firm’s litigation department at its Bloomfield Hills, MI, office. Prior to joining Dykema, Mr. Wittner, who is also a professor in residence at Michigan State University College of Law, served as assistant general counsel for Nissan North America, where he was head of the Legal Department’s Product Group.

• Chief Judge Diane P. Wood of the U.S. Court of Appeals for the Seventh Circuit received the Spring Branch Independent School District Distinguished Alumni Award on October 25 in Houston.

• On October 27, Mark G. Yudof, president emeritus of the University of California and a professor of law at UC Berkeley School of Law, spoke in the Askwith Forum series at the Harvard Graduate School of Education on the topic “Higher Education, the Cost Disease and Systemic Reform.”

Sexual Assault

Top Left: David Rudovsky (center) of Kairys, Rudovsky, Messing & Feinberg in Philadelphia makes a comment during the joint meeting of Advisers and the MCG for Model Penal Code: Sexual Assault and Related Offenses.

Left: Adviser Wendy L. Patrick of the County of San Diego District Attorney’s Office, San Diego, CA

Above: ALI Director Richard L. Revesz (left) and Reporter Stephen J. Schulhofer of New York University School of Law and Associate Reporter Erin E. Murphy, also of New York University School of Law


In Memoriam

Elected Members Jean Braucher, Tucson, AZ

Life Members

Hugh Calkins, Cleveland, OH; Bert H. Early, Chicago, IL; Wilfred Feinberg, New York, NY; Joanne M. Garvey, San Francisco, CA; Frank P. Grad, New York, NY; Cornelius B. Kennedy, Charlottesville, VA; Walter Loeber Landau, New York, NY; Charles F. Leahy, Portsmouth, NH; Vincent L. McKusick, Portland, ME;

Henry Ramsey, Jr., Berkeley, CA; David D. Siegel, Albany, NY; Joseph A. Wheelock, Jr., Williamstown, MA

On October 16, the Council elected the following 50 persons:

Essam Al Tamimi, Dubai, United Arab Emirates

Theresa Amato, Oak Park, IL

Michael F. Aylward, Boston, MA

Vanita M. Banks, Northbrook, IL

Bethany R. Berger, Hartford, CT

Aaron-Andrew Paul Bruhl, Houston, TX

J. Brett Busby, Houston, TX

Ruben Castillo, Chicago, IL

Robert E. Dalton, Washington, DC

S. Grant Dorfman, Houston, TX

Mitchell S. Eitel, New York, NY

John Gleeson, Brooklyn, NY

Timothy B. Goodell, New York, NY

David B. Goodwin, San Francisco, CA

John Trevor Gregg, Grand Rapids, MI

Lucas Guttentag, Stanford, CA

Ben H. Harris, Mobile, AL

William C. Heuer, New York, NY

Michael J. Holston, Whitehouse Station, NJ

Christopher A. Jarvinen, Miami, FL

John E. Jones III, Harrisburg, PA

Lucy H. Koh, San Jose, CA

Helmut Koziol, Vienna, Austria

Thomas H. Lee, New York, NY

Judith Leonard, Washington, DC

Gillian L. Lester, Berkeley, CA

Catharine A. MacKinnon, Ann Arbor, MI

Douglas M. Mancino, Los Angeles, CA

Randy J. Maniloff, Philadelphia, PA

Jill Manny, New York, NY

Florencia Marotta-Wurgler, New York, NY

Amie Chantal Martinez, Lincoln, NE

Jeffrey P. Minear, Washington, DC

David L. Mulliken, Honolulu, HI

John C. Neiman, Jr., Birmingham, AL

David E. Patton, New York, NY

Darrell W. Pierce, Ann Arbor, MI

Michael J. Pitts, Indianapolis, IN

Deborah Renner, New York, NY

Anthea Roberts, New York, NY

Sandra M. Rocks, New York, NY

Peter J. Rubin, Boston, MA

Margaret Ann Ryan, Washington, DC

Daniel Schwarcz, Minneapolis, MN

Neal R. Sonnett, Miami, FL

Lisa J. Sotto, New York, NY

Sri Srinivasan, Washington, DC

Griffin Terry Sumner, Louisville, KY

Debra McCloskey Todd, Pittsburgh, PA

Robert A. Wexler, San Francisco, CA

New Members Elected


Annual Report and AppealBy now you should have received The American Law Institute’s Annual Report in the mail. It is also now available online at www.ali.org.

The Annual Report highlights the Institute’s achievements in fiscal 2013-2014. Additionally, President Roberta Cooper Ramo writes about the lasting importance of ALI’s work and the vital charitable support it receives from members that ensures the Institute’s continuing independence. Director Richard Revesz presents his vision for the Institute as we approach a second century of law reform.

The Annual Report recognizes those who generously made a charitable donation during the 2013–2014 fiscal year. The Institute is especially grateful for the increasing number of members who choose to become Giving Circle donors. ALI’s many accomplishments would not be possible without the participation, advice, and financial contributions of its members.

We hope that every member will make an end-of-year charitable donation to the Institute by completing and returning the gift card that accompanied the Annual Report. You can also make a gift online at www.ali.org/makeagift.

Thank you in advance for your generosity and best wishes for a happy and healthy holiday season.

THE AMERICAN LAW INSTITUTE4025 CHESTNUT STREET | PHILADELPHIA, PA 19104-3099

TEL: 215 243 1600 FAX: 215 243 1636 EMAIL: [email protected] WEB: WWW.ALI.ORG

THE AMERICAN LAW INSTITUTEANNUAL REPORT 2013-2014

W. Loeber Landau, First Recipient of ALI’s Wisdom Award, Dies at Age 82Walter Loeber Landau, a partner for many years in the New York City office of Sullivan & Cromwell and the first recipient of ALI’s John Minor Wisdom Award for outstanding member contributions, died at his home on September 1. He was 82.

Mr. Landau, an ALI member for 38 years, received the Institute’s first John Minor Wisdom Award in 1993, chiefly for his extraordinary contribution to the ALI’s then-recently completed Principles of Corporate Governance, and for his work as an Adviser for the Restatement Third, The Law Governing Lawyers. He had served as chair of the ABA’s CORPRO committee, which acted as a liaison between the Corporate Governance project and the ABA’s Section of Business Law. On presenting the award, ALI’s then-President Roswell B. Perkins, Jr., commended Mr. Landau’s scholarly and constructive memoranda to Reporters, his effective and statesmanlike leadership of the committee, and his ability to

bridge divergent points of view to build an influential, centrist viewpoint. Without Mr. Landau, Mr. Perkins said, “the Corporate Governance project could easily have been derailed.”

Born in New Orleans in 1931, Mr. Landau graduated Phi Beta Kappa and as class valedictorian from Princeton University in 1953. In 1956, he graduated summa cum laude from Harvard Law School, where he was the Developments Editor of the Law Review. After serving in the Office of the General Counsel of the Air Force, he joined Sullivan & Cromwell in 1959 and became a partner in 1966. He spent his entire career with the firm, where he was an effective corporate and securities lawyer, and served on its managing committee. An active member of the ABA’s Section of Business Law, he was chair of its Committee on Counsel Responsibility and Liability from 1981 to 1984 and a member of its Council from 1984 to 1988. After serving as co-chair of the CORPRO committee from 1988

to 1989, he was sole chair from 1989 until the committee completed its work in 1993.

Mr. Landau served on several corporate boards but also made time to serve on the boards of many nonprofit organizations. He is survived by his wife of 60 years, Barbara Gordon Landau, three children, and four grandchildren.

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(a suggestion forwarded 20 years ago by Gerhard Casper and roundly defeated when we were not in the adventurous place the Council is now). The confusion caused by having titles such as Restatement Third of Employment Law and Restatement Third of The Law of American Indians when we have never before published a Restatement of Employment Law or Indian Law can be avoided. Beginning with the Restatement of Employment Law, all of our works will be numbered by the subject rather than the series. So, if we ever embrace employment law again, it will be the Restatement Second of Employment Law, and the next will be the Third, and so it goes. This does make me want to put it all to a Gilbert and Sullivan tune, but, as you know, that never ends well for the Admirals. We will leave previously published works just as they are.

At Ricky’s suggestion we also took a serious look at how we define “Restatements” and “Principles” projects and have formed a new Style Committee, chaired by Mary Kay Kane, emerita dean and chancellor at UC Hastings, that will revise the portions of the style manual that define the major two types of our work that are not model codes. The proposed changes will be brought to the Council for approval, and when approved we will publish the revised style manual on our website.

Our website and all of our technology is under reconstruction under the leadership of Deputy Director Stephanie Middleton. We hope by the spring or early summer (technology time to get something finished fits perfectly with the time it takes to complete our projects!) to have a new website that is much more useful to our members and more helpful in explaining the ALI and its work to the public. While on the subject of leadership and transition, I want to note that none of this would happen without Stephanie’s steady hand, leadership, and intellectual contributions to all of our projects. It is easy to understand her being at the helm of our Philadelphia office and staff, but many of our members don’t see her constant interaction with the Director, the Reporters, the Advisers, and the MCGs, which accounts for a great deal of our ability to move projects forward and keep our quality at the highest level. And she sometimes even takes my phone calls!

I also want to give you an update on our new membership process. While it is still early, reports on the responses from those we ask to join us is really deeply heartening. As you will remember, members still send confidential nominations to the Membership Committee, which is chaired by U.S.

District Court Judge Yvonne Gonzalez Rogers (recently elected to Princeton’s Board of Trustees). After review by that Committee, but before election to membership by Council, ALI contacts nominees to ensure they are interested in ALI’s work. Our Membership Director, Beth Goldstein, tells us that these are the most heartwarming of calls, with appreciation for the great honor they see in joining our group, interest in how they can participate, and expressions of respect for the ALI. We have a process for finding new members in areas in which we are underrepresented. These gaps will not be filled overnight, but over the next few years we will have a more representative membership in terms of geography and all other areas of diversity, while keeping or raising our usual high standards. Don’t forget that if you are interested in nominating someone, you need only look at the website or get in touch with Beth ([email protected]) and she will walk you through the process.

Two final notes about where we find ourselves as an organization as we finish out 2014: Where we have found the need to “clarify and improve the law,” we are going forward, even in areas that are greatly controversial such as sexual assault, government ethics, and copyright. We must not be afraid to tackle the hardest questions in our legal system and we are not. At the same time, we are and must be the model of how people with very different and very deeply held views express them with civility and respect and somehow find a middle ground, not perfect to either side, but proposing improvements in the law deeply needed by and helpful to judges, lawyers, and the American people.

Last, I want to note that at our October Council dinner we heard remarks from three new Council members—from both coasts and the middle—about their lives and experiences: Second Circuit Judge Raymond Lohier, Jr., of New York; practicing attorney Teresa Wilton Harmon of Chicago; and Stanford Professor (and after January 1, 2015, California Supreme Court Justice) Mariano-Florentino Cuéllar. The diversity of their life stories, their geography, and the esteemed place each holds in the American legal system are a tribute to our democracy. For their work and for the work that each of you do for the ALI, I am greatly thankful.

Happiest end of what seems like a very cold holiday season. Keep your hands and hearts warm.

Roberta

Roberta Cooper RamoPresident

The President’s Letter continued from page 1

mailto:bgoldstein%40ali.org?subject=


January 2015

15-16 Council Meeting. ALI Headquarters, Philadelphia, PA

February 2015

12 Reception for ALI Members Hosted by Munger, Tolles & Olson, Los Angeles, CA

12-13 Restatement of the Law, Charitable Nonprofit Organizations. Los Angeles, CA 12 – Advisers 13 – Members Consultative Group

20 Restatement of the Law, The Law of American Indians. Washington, DC Joint Meeting of Advisers and Members Consultative Group

March 2015

6 Restatement of the Law Third, Torts: Intentional Torts to Persons. ALI Headquarters, Philadelphia, PA Joint Meeting of Advisers and Members Consultative Group

26-27 Restatement of the Law, Liability Insurance. ALI Headquarters, Philadelphia, PA 26 – Advisers 27 – Members Consultative Group

April 2015

9-10 Model Penal Code: Sentencing. ALI Headquarters, Philadelphia, PA Joint Meeting of Advisers and Members Consultative Group

24 Principles of the Law, Government Ethics. ALI Headquarters, Philadelphia, PA Joint Meeting of Advisers and Members Consultative Group

May 2015

18 Council Meeting. The Ritz-Carlton Hotel (22nd & M, NW), Washington, DC

18-20 Annual Meeting. The Ritz-Carlton Hotel (22nd & M, NW), Washington, DC

May 2016

16 Council Meeting. The Ritz-Carlton Hotel (22nd & M, NW), Washington, DC

16-18 Annual Meeting. The Ritz-Carlton Hotel (22nd & M, NW), Washington, DC

Calendar of Upcoming Meetings & Events(for more information, visit www.ali.org)

The Institute in the Courts continued from page 10

the covenants, because it no longer owned any land near the property. The state supreme court relied on the Restatement Third of Property (Servitudes) §§ 4.1 and 4.5 to determine that the covenants at issue were in gross and “personal” to the entity, rather than appurtenant to the property, and adopted the Restatement Third of Property (Servitudes) § 8.1 in holding that the private entity had standing because it had a legitimate interest in enforcing the covenants as the original grantee of the property. The court reasoned that § 8.1 addressed legitimate concerns that opportunistic parties might use servitude violations for extortion or other improper purposes, while striking a reasoned balance in permitting enforcement of covenants in gross under limited circumstances. Lynch v. Town of Pelham, 2014 WL 5395008 (N.H. 2014).

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PAIDLANGHORNE, PAPERMIT NO. 81

(ISSN 0164-5757)The American Law Institute4025 Chestnut StreetPhiladelphia, PA 19104-3099

3132

15. Extent and Nature of Circulation

a. Total No. Copies (Net Press Run) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4900 . . . . . . . . . . . . . . . . . . . . .4900

b. Paid and/or Requested Circulation (By Mail and Outside the Mail)

(1) Paid/Requested Outside-County Mail Subscriptions Stated on Form 3541. (Include advertiser’s proof and exchange copies) . . . . . . . . . . . . 0 . . . . . . . . . . . . . . . . . . . . . . . . 0

(2) Paid In-County Subscriptions Stated on Form 3541 (Include advertiser’s proof and exchange copies) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 . . . . . . . . . . . . . . . . . . . . . . . . 0

(3) Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Non-USPS Paid Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 . . . . . . . . . . . . . . . . . . . . . . . . 0

(4) Other Classes Mailed Through the USPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 . . . . . . . . . . . . . . . . . . . . . . . . 0

c. Total Paid and/or Requested Circulation [Sum of 15b .(1), (2), (3), and (4)] . . . . . . . . . . . . . . . 0 . . . . . . . . . . . . . . . . . . . . . . . . 0

d. Free Distribution by Mail and Outside the Mail (Samples, Complimentary, and Other Free)

(1) Outside-County as Stated on Form 3541. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4327 . . . . . . . . . . . . . . . . . . . . .4338

(2) In-County as Stated on Form 3541. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 . . . . . . . . . . . . . . . . . . . . . . 156

(3) Other Classes Mailed Through the USPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 . . . . . . . . . . . . . . . . . . . . . . . . 0

(4) Free Distribution Outside the Mail (Carriers or Other Means) . . . . . . . . . . . . . . . . . . 152 . . . . . . . . . . . . . . . . . . . . . . 295

e. Total Free Distribution (Sum of 15(d(1), (2), (3), and (4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4830 . . . . . . . . . . . . . . . . . . . . .4789

f. Total Distribution (Sum of 15c . and 15e .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4830 . . . . . . . . . . . . . . . . . . . . .4789

g. Copies Not Distributed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 . . . . . . . . . . . . . . . . . . . . . . 111

h. Total (Sum of 15f . and g .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4900 . . . . . . . . . . . . . . . . . . . . .4900

i. Percent Paid and/or Requested Circulation (15c ./15f .x100) . . . . . . . . . . . . . . . . . . . . . . . . . 0 . . . . . . . . . . . . . . . . . . . . . . . . 0

1. Publication Title: The ALI Reporter.

2. Publication No. 01645757.

3. Filing Date: October 1, 2014.

4. Issue Frequency — Quarterly — Winter, Spring, Summer, Fall.

5. No. of Issues Published Annually — 4.

6. Annual Subscription Price — No Charge.

7. Complete Mailing Address of Known Office of Publication: 4025 Chestnut Street, Philadelphia, PA 19104-3099.

8. Complete Mailing Address of Headquarters or General Business Office of Publisher: Same.

9. Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor: Publisher — The American Law Institute, 4025 Chestnut Street, Philadelphia, PA 19104-3099; Editor — Marianne M. Walker, same address; Managing Editor — Shannon P. Duffy, same address.

10. Owner: The American Law Institute (a nonprofit corporation), 4025 Chestnut Street, Philadelphia, PA 19104-3099.

11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None.

12. Tax Status (For completion by nonprofit organiza-tions authorized to mail at nonprofit rates): The purpose, function, and nonprofit status of this organization and the exempt status for federal income tax purposes have not changed during preceding 12 months.

13. Publication Title: The ALI Reporter.

14. Issue Date for Circulation Data Below: Summer 2014.

Statement of Ownership, Management, and Circulation

Average No. Copies Each Issue During Preceding 12 Months

Actual No. Copies of Single Issue Published Nearest to Filing Date

16. This Statement of Ownership will be printed in the Fall 2014 issue of this publication.

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Marianne M. Walker, Editor

Date: October 1, 2014

I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties) .

q&a with peter winograd

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