The morning began with the Council meeting at 9:00 a.m. There was a long agenda. The central focus was the upcoming Labor and Employment Law Conference put on by the section in Denver, Colorado. It’s our 2nd annual CLE Conference and it will be held from September 10-13, 2008. It is a very large conference with several substantive tracks. If you’re a regular bloggie, you will remember I blogged the first one in Philadelphia, last October. It takes a lot of preparation to put on this one program, so there were many conversations around both the programming and the social events. We also received an update on the newsletter during the meeting. It’s awesome and I’ll see if we can link to it so you can see it for yourselves. For those of you who are interested in and follow labor and employment law, it’s both timely and informative. There were reports given on the section’s publications, discussions around the budget, and outreach programs to law students and academicians. That gives you a sense of some of the work of the Council.

The Council membership consists of management, employee, union, and at-large members. It operates by consensus which means we don’t take a position unless the various constituencies of the section agree. It seems unwieldily, but it’s really not. It produces very thoughtful opinions. In addition to the voting council members I’ve already described, there are administrative members. They serve on the Equal Opportunity in the Legal Profession, the Newsletter, the Budget, the CLE, and the Marketing Committees. The section’s standing committees, such as the Ethics and Professional Responsibility Committee which I co-Chair, are more substantive in nature. They are organized around a particular area of labor and employment law. That is probably more than you wanted to know about it, but I thought I would give you a little information about the Council.

After the Council meeting and over lunch I had a chance to spend time with Barbara D’Aquila from Minneapolis. We have both been on the Council for a while and have exchanged pleasantries, but never had a chance to sit down and talk. It was a pleasant visit. There were a group of ladies who invited me to go sailing, but I felt as though I didn’t want to do anything; sitting and getting to know Barb a little bit better quietly seemed much more appealing. One of the benefits of belonging to professional organizations is the people you meet. Professional associations provide you with an opportunity to learn a lot in terms of professional skills and resources. But more important are the friendships that you can form and the people you get to know. So I spent a nice quiet afternoon getting to know Barb better. I ordered a jerk chicken wrap in a wheat tortilla served with fries for lunch – not so good for Fabulous at Fifty.

After lunch, I went back to the room and checked e-mail. I received a number of phone calls from Arkansas and followed up on all of those before getting ready to go to the Council dinner. For dinner we took a bus to Oceana Restaurant and Wine Bar in St. Thomas. The buses left the hotel at 6:00 p.m. and we arrived at 6:30 p.m. or so. There was a cocktail hour until 7:30 p.m. It was a really good time to catch up with folks who I only get to see two, or maybe three, times a year. Sometimes I have to miss a Council meeting, so I don’t get to see them for long periods of time. Fortunately, this year our Spring Council meeting was a little bit later in the year. Anyway, it was a good time to mingle and catch up with a number of old friends and to meet new people.

During the reception we were served very substantial appetizers, including a beef saté with a honey barbeque glaze, a curried chicken salad on pita bread, conch fritters, eggplant salad (yuck!) on a cracker, and fresh veggie spring rolls. The dinner menu that night consisted of a crab cake with roasted red pepper sauce appetizer; Andalusian Style Gazpacho with fire spiced shrimp salsa; Garden Salad with pears, walnuts, and Gorgonzola vinaigrette; and three entree choices. I chose the Oven Roasted Mahi-Mahi with plantain mash and mango buerre blanc. Some of the folks at my table selected the Sesame Ginger BBQ Pork Tenderloin with sweet potato-Anna. The vegetarian entree was a Grilled Portobello Mushroom with vegetable cousous and roasted red pepper sauce. The folks who sat with me at dinner were Erin and Steve Moore, Joel D’Alba, Jim Jones, Carl Ver Beek, and Stephen Moldof and his wife Michaela. We had a lovely meal in a beautiful setting looking out at the ocean. One of the highlights of the dinner was when Section Chair Jim LaVaute recognized Pat Slovak, the immediate past Chair, for her leadership. They each shared what it had been like to work together and the many contributions each made. Jim gave Pat a Chicago based print which reflected her Chicago roots.

After their remarks, dessert was served: a mango and apple strudel with cinnamon whipped cream. Then we piled in the buses for the trip back to the hotel. Erin and Steve and I went for a nightcap and ran into several section members who were also out catching the evening breeze. We joined them for a little while, but then we went and found a quiet space and to our delight, Jim LaVaute joined us. He had been awakened by a client and decided to enjoy the evening with us for a little while. Not too long after, we all called it a night. It was a delightful one. I really feel blessed by the friends that I’ve made through my involvement with the ABA, particularly the Labor and Employment Law section. Good friends and a good evening.

It was great to awaken in the morning and look out the balcony window. Sometimes, because I travel so much I wake up and I don’t know where I am and it wasn’t any different on Friday. But once I became oriented and looked out the window at the beautiful multi-blue and green Caribbean water and all the lush foliage and flowers, I remembered. It’s a great way to wake up, with a reminder of how beautiful nature can be. I decided to check and return a few e-mails, and then I walked down and had breakfast at the outdoor café where I visited with a few friends from the Council including Steve Gordon, the former Chair of the Section. After breakfast I decided to go into St. Thomas just to take a look around with no particular agenda and no reason to rush.

I walked up to the main building and got in a cab, which looked more like a utility van and my cab driver was Randy. He had a wealth of information. I don’t know if you’ve noticed this, but it seems that I have really marvelous conversations with cab drivers wherever I go. Randy shared with me these random facts:

• There are 62 islands that make up the Virgin Islands.
• 22 of them are owned by the Americans.
• They were purchased in 1917 from Denmark.
• There is no high school on St. John. The kids on St. John take the ferry over to St. Thomas for high school every day and then back.
• The British Islands – Virgin Islands, in Randy’s opinion, are more relaxed and friendly because they get less tourist travel and in his view, have fewer aspirations of being a big city.
• He was from Tortula, which was about 30 miles away, and if I ever got a chance, I should go and see The Baths.

Folks on St. John are concerned because property has historically been passed down from family to family, and in fact before the United States took ownership the folks who had been living on the land were grandfathered in, so that they owned their land. They had land grants. But more recently on St. John a number of very expensive houses had been built and the property taxes were going up so much that the people who have lived there forever were having a hard time holding onto their property. He thought that was a pretty big problem. I asked him about education and he said there is one university on St. Thomas and it’s called the University of the Virgin Islands. In ‘63, it took its first students. It’s a four-year liberal arts college, but I wasn’t able to see it because it was closed that day.

After that interesting ride into St. Thomas, I got dropped off in the middle of downtown, which is about 3 blocks long. There are little alleyways that you can wander in and out of, so I just walked along very casually, sightseeing and taking a few pictures. Then I headed back to the hotel because we had a dinner that evening at 6:00 p.m. It was about 3:30 p.m. when I decided to head back and I’m glad I decided to return early because I got put out of two cabs! Here’s what happened . . . I got into the first cab, we started driving and he said, “Where are you going?” I told him I was going to The Ritz-Carlton and he pulled up next to another cab, blew his horn and yelled across to the other guy, “Where are you going? Where are you going?” and then he says, “OK, he’ll take you to The Ritz” and he put me out!

So, in the middle of traffic with all these horns blaring, I had to get out of the cab and go get in the other cab. So the other cab driver says, “Where are you going?” and I say, “The Ritz” and he started laughing and said, “Why did he do that? I’m not going any where near The Ritz.” He was in fact going to a ritzy shopping center close to where the cruise ships land, which was a long way from our hotel. So, he said, “Well, I tell you what, I will drive you to a place where you can get a cab.” I guess technically I didn’t really get put out of the second cab, but I really did because he didn’t take me. Anyway, he drove me to a cab stand. It turned out that the gas there is expensive and the Ritz is so far out from downtown that a lot of cab drivers don’t want to take the fare because they don’t think they’ll make any money by the time they pay for their gas. So that was the problem. The driver who finally took me said, “If it’s just you by yourself, I’ll charge you extra,” and by that point I said, “fine” because I wanted to get back.

Dinner that evening was on St. John, which you could see from the windows of the hotel on St. Thomas. We boarded several mini buses in groups and they took us to the ferries for our trip to St. John. It only takes 5-10 minutes to get over there by ferry, but because this was to be a relaxing excursion or a little mini cruise, it took us about an hour to get there. We went all around, and the ship’s officer served champagne to us along with cheese and crackers. We saw the most amazing sunset from the ocean. It was fabulous.  Our restaurant on St. John was called Caneel Bay Restaurant. It was very lovely with a great view, looking back across at St. Thomas.

We were served a wonderful appetizer with seared tuna, shrimp and crab with avocado. It was very good. Then we had (and I’ve never had this before) an interesting sweet potato soup. In the center were little chunks of what tasted like meat, but it turned out that it was breaded (and I think maybe braised) tofu. It was good, too. The main course was surf and turf, a small filet and a lobster tail already removed from the shell. Dessert was pastry with a shell made of pecans and what tasted like toffee. It held ice cream and berries. Afterwards we got back in our boats and we arrived in St. Thomas in about 10 minutes. It was really fun and an enjoyable start to the Council meeting.

As Erin, Steve and I were walking down to our rooms in the begonia building, we passed by some bushes and I said, “Hey, what’s that? I’m not moving another step until I know what that is.” There was something in the bushes and it turned out to be a little deer. It was just standing there right outside of our rooms eating the flowers. It was a Cay deer. It is a small deer that is very common there. It didn’t move and we didn’t move, so we got pictures of it. Anyway, that was kind of a cool ending to the night.

The week began with a lovely dinner hosted by Jane and Dave Gearhart and Mary Ann and Reed Greenwood at the Greenwood residence. A number of University administrators and supporters were there, including several of our alums: Jim and Nancy Blair, Stanley and Charlene Reed, Lewis Epley and Charles Scharlau. All the Deans and Vice Chancellors were there, along with Jeff Long, Johnetta Cross Brazzell, Tysen Kendig, Richard Hudson and his wife…just everybody! It was quite an event. The Greenwoods and the Gearharts celebrated and praised the Chancellor and Mary Lib. There were several toasts to them, many thanks and gifts, and then a wonderful dinner. Everything was just lovely.

The table settings were amazing, and in fact, one of the jokes of the evening amongst the guests was how many knives and forks were actually on the table and what each was for. The menu was white bean soup with andouille sprinkles; Bertani Due Uve 2006; bibb lettuce with tangerines and almond slivers served with a cilantro vinaigrette; grilled shrimp, cheese grits and smoked tomato sauce; pomegranate frappé; seared duck breast with cognac demi-glace served with buttered apples and baby lima beans with marinated artichoke hearts; Purple Mountain Pinot Noir 2006; Stilton, Edam, and Swiss cheeses, fig jam and water crackers; Commander’s strawberry shortcake; Crème Chantilly; decaffeinated snickerdoodle coffee; and Belgian truffles. The meal was fabulous.

The dinner conversation at my table focused on the fate of Fayetteville High School, the Fayetteville mayoral race, growth and development in Rogers and Benton counties versus Washington County, the upcoming law school dedication, traveling and exotic foods. It was a delightful evening and I’m really grateful to have been included in such a lovely event. Thanks so much Chancellor White and Mary Lib for all you’ve done for the University of Arkansas, and for the School of Law. We wish you the very best as you transition into your new life. Reed and Mary Ann, as always, what a lovely event. But as you know, one would expect nothing less from both them and from the Gearharts.

Thursday morning began with a jolt – the phone rang at 5:30 a.m. I am always anxious about phone calls between say, midnight and 6:00 in the morning worried that they’re bringing bad news. Startled, I reached over for the phone and hit the light to see who was calling. It was American Airlines telling me that my flight to the ABA Labor and Employment Section Council Meeting had been canceled. I had been scheduled to leave on a direct flight to Miami and the agent was now saying I could get out the next day. The problem was that the Council dinner was on Thursday night and I really wanted to be there for that. So, I called American again and worked with the agent who got me rescheduled. But the new flight meant I had to leave a lot earlier than I had anticipated and when you are a last minute arriver at the airport, an hour is a lot.
It was also coincidentally garbage day and I had to get all the garbage out to the curb. I can’t put my garbage out the night before like most people because I have a neighbor (unknown to me) who, when I put my garbage out overnight, spreads it up and down the street and also moves my garbage can down the block. That vandalism has occurred several times, so I always put my garbage out the morning of collection. Anyway, that’s a long way of saying that I had to get my garbage out and get packed, get dressed, go by the bank and get money, and get to the airport! I got on the move, got everything done, got in the car, got to the airport, got the flight just fine and arrived at the transfer point in Dallas. Dallas was uneventful except for the fact the connection was a little bit tight, and there had been no time for breakfast earlier in the morning. The only thing close to my gate in Dallas was Popeye’s Chicken and I know that is a horrible way to start the morning, but nevertheless, that was brunch on the plane.

I had tried to get an upgrade based on my frequent flier status, but the plane was full and I ended up sitting next to the person who was number two on the wait list for an upgrade. His name is Steven Stevens. He works for Texas Dow Employees Credit Union and he turned out to be pretty interesting. He had been a manager for many, many years and we talked about managing and different ways he problem solves and his philosophy of managing.

He informed me about issues raised by e-banking and some of the new trends and the different types of products the credit union was trying to focus on marketing to younger people and trying to determine what kind of services might make the credit union more attractive to them. It was such an interesting conversation that before we knew it, we were landing in Miami. Coincidentally when I arrived at XNA Bobby Jones, our alum, was on the same plane. He and Steven (the banker) were both going to Key West. Steven was going for a managerial retreat and Bobby for a hearing. They dashed off to make their tight connection to Key West.

As I wandered through the terminal I ran into Mike Posner who was one of the very first people I met when I became involved in the ABA Labor and Employment Law Section’s Committee on Ethics and Professionalism. I snuck up on him while he was buying a sandwich and joined he and his family (his daughter Michaela and his wife Cassandra) while they had their lunch. I was still nursing the Popeye’s.

Our flight from Miami to St. Thomas was delayed and while waiting for it, I ran into a number of other people who were going to the Section meeting. Wendy Nutt, Joel D. Alba, and Christine Cooper and her husband, Ricky, and Steve and Erin Moore, were all on the same flight. Steve was past Co-Chair of our Committee and he’s now Co-Chair of the Section’s newsletter. He, Erin, and I are really good friends. I don’t see Erin as much as I see Steve, so we took that opportunity to catch up while we were waiting for our delayed flight. Coincidentally, on the flight, Steve’s seat was next to mine so we visited. He talked to me about an interesting case he’s working on. Steve is a partner at Baker Hostetler in Denver and has tried over 100 jury trials. He is a constitutional law expert, especially in terms of workplace issues. He will be representing the City of Denver during the Democratic national convention around first amendment issues. Steve is a fascinating, brilliant person, but he’s very low key so you wouldn’t know it. You’d have to get to know him to learn all the amazing things that he’s doing. That flight went by pretty quickly as well. We had one small glitch on the flight and that was that it hit a pretty rough patch of turbulence. He and I both thought it was over – and you’re talking two people who fly a lot. The thing that made it so disturbing was that it apparently spooked the flight attendant who came on the overhead p.a. system and shrieked a pretty shrill, “Get in your seats!!”

We landed safely and were met by a woman holding a sign saying “ABA,” which is always a great feeling because you know you don’t have to hassle about anything; somebody’s going to get you where you’re going. They packed us up in a van and took us way out about 15 miles from the airport to the beautiful Ritz-Carlton hotel on the water. When we arrived, there was a young man who greeted us with tropical punch fruit drinks. They felt great having been in the heat and humidity for a while. The woman who greeted us asked if our flight had been delayed. When we said yes, she said, “Oh, it’s always delayed and the one going back in the morning will be delayed, too, so count on it.” After checking in we had a guy in a golf cart drive us each to our rooms, which were beautiful. And, that was Thursday.

Wednesday started with a meeting with Teri Stafford and Mark Powers to review Teri’s six months here at the law school. That was a good meeting. It was also our May birthday celebration and in addition a very sad occasion.

We said goodbye to Macey Panach who has been a wonderful Communications Director for the past year. We’ll miss her and her excellent work very much and we wish she and Matt the very best in their new lives in Oklahoma City. Happy Birthday to our May birthdays – Professor Steve Sheppard and Sally Kelley.

We had a couple of visitors stop in unexpectedly. Professor Laurence popped in and it’s always a pleasure to see him. As you all know, he is now retired and he was talking about his jumping lessons; he’s a very big horse enthusiast. He had fallen and he was talking about that experience with Professor Judges who also rides. Then Travis Martin, one of our alums, stopped by as he was on campus briefly that afternoon. It was good to see him. Also, a new member of the law school community, Professor D’lorah Hughes, is here now and she came for birthday cake, so it was a great afternoon.

At 2:00 p.m. I had a meeting with Professor Kim Coats and she’s planning some very interesting scholarship over the summer and big news –She was recently married! Congratulations Professor Coats! It’s awesome and we wish she and her new hubby the very best. We had a good meeting and I was tickled to receive that good news and to wish them both well.

After the meeting with Professor Coats, it was time to catch up the blog. We have a new system in place and we’re working to get things posted much more promptly, so I didn’t want to be the glitch in that new process and took the time to get caught up. Also I needed to prepare for the American Bar Association Labor and Employment Law Section’s Council Meeting which, yes I know it’s a big sacrifice, is in St. Thomas. But, that meant I would be away from my desk for a while, so I was taking time to get all the letters/correspondence done and to return phone calls before leaving.

Today got off to a delightful start (joking, joking).  Actually it was time to go back to see Dr. Henderson.  I’ve been seeing him a lot.  If you read the blog, you should have noticed that I’ve had a lot of dental work this year.  All this work would come the year that I forget to turn in my cafeteria plan paperwork.  Nevertheless, I digress.  I went to see Dr. Henderson to get a crown and for those of you who have had that specific dental work done, you know it’s no fun.  I’ve said it before and I’ll say it again, I do not like going to the dentist, but I do like my dentist.  I’ll have to go back to see him again because this is a temporary crown and this time I’ll get his picture so you can see this mysterious dentist who sings and cracks jokes.  I know it sounds really strange.  He doesn’t really sing, he kind of hums.  You just have to be there.

I had a brief meeting when I got back in the building (with a half Novocaine face) with Monika Szakasits again about issues around the library, particularly our new library director’s office that has problems with leaking.  Time to be much more assertive to get those issues resolved before Randy arrives.  For lunch, I went to Taste of Thai and enjoyed the special, which was a very light chicken dish with asparagus, broccoli, green beans and zucchini (I don’t like zucchini or eggplant for that matter, so I just pushed that aside).  It was a very healthy and light meal before getting pampered later today.  Late that afternoon Teri Stafford and I had a quiet meeting around development issues.  Then it was time to spruce up a little bit that evening with a manicure and pedicure.  Summer’s begun for sure.  I’ve got to get back to working out.  I’ve fallen off the “Fabulous at 50” bandwagon – and my cruise is less than 35 days away!

Thursday, May 23

Thursday, I returned from the ALI meeting in Washington, DC, checked in with the office and learned everything was quiet.

Friday, May 24

It was a fantastic Friday. Mike Mullane came in first thing in the morning with a beautiful carved statue from Haiti – a wonderful full figured woman who sits on the corner of my desk and reminds me of the gift of friendships. Thank you very much, Prof. Mullane.That day I also received in the mail a gift from Dean Kent Syverud from Washington University. It was a little squeeze toy for stress, in the shape of a fire hydrant labeled “Dean.” It’s a reflection of both the realities of the job (sometimes) and the wacky sense of humor of Dean Syverud. Thanks Kent!

The morning was busy. It’s always that way after I’ve been out of the office for a while. In fact, I had a meeting scheduled with Professor Sheppard but we had to move that back to 11:00 a.m. and it was a very good meeting. He is working on a few projects. Cambridge University Press has agreed to publish a book based on his doctoral thesis, to be called I Do Solemnly Swear: The Moral Obligations of Legal Officials, and he is finishing his edits for that by July 1. He is also working on his new law dictionary for Aspen Publishers/Wolters Kluwer, supervising a team of twenty of our students. They collect quotations and drafting definitions, and he edits and redrafts them into final form. His hope is that the dictionary will be both easier to read and more informative than other dictionaries on the market. That dictionary should have its first edition released next year. He also has a book review column for this year’s Law Notes and is continuing to develop his article on John Locke, hopefully for publication next spring.

When my lunch plans didn’t work out, I spent that time catching up. At 3:30 p.m., I met with Mike Macechko, Angela Monts, Teri Stafford and Andrew Albertson about the anticipated changes to the Alumni Society. They are very excited and I think our alums will be pleased to learn of the new initiatives coming out of this restructuring. We’ll be sharing that with our Law Alumni Board in Hot Springs.

That evening I had a delightful dinner with Vice Chancellor Johnetta Cross Brazzell and Dean Carolyn Allen at Soul Restaurant and Lounge. Soul is located on 265 across from the Fayetteville Health Club and if you haven’t been there, check it out. It’s a quiet place to have a meal at the end of the day. The menu is interesting and there are always specials that vary weekly. Dean Allen ordered the walnut and gorgonzola salad. It was a house blend of arugula, spinach, and romaine leaves gently tossed with toasted walnuts, red onions, gorgonzola cheese, and flash fried turnip chips. Vice Chancellor Brazzell had the blue bayou crab cake, described in the menu as a sweet and succulent lump crab cake lightly fried and served alongside a bed of fresh spinach with the signature mango-curry aioli. My meal was a special item on the menu, a fish dish that was very light served with thyme and butter carrots and rice. I think Dean Allen also had the crab cake for her entree, too. It was an enjoyable meal, but what I most enjoyed about it was the camaraderie and the fact that on a holiday weekend they took time to spend it together with me visiting, catching up and being supportive of each other. There’s just no replacing that. Thank you to Johnetta and Carolyn for your continued encouragement and support and friendship.

Saturday, May 25

I think I mentioned in the blog earlier that when I arrived in DC, my luggage was pretty much destroyed, so Saturday Mom and I went to the Mall. There were big luggage sales over the Memorial Day weekend and I was able to inexpensively replace my luggage. We also took a bunch of stuff to Goodwill. I have to tell you that that’s about all we did. The only other activity we engaged in was to go to the movies to see the second installment of “The Chronicles of Narnia,” which was a lot of fun because we saw it at the drive-in on the big screen. If you are going to see a battle epic type film, the drive-in is a good place to see it. Other than that, the weekend was time to relax and enjoy doing nothing over the holiday. It was great.

Wednesday morning began with a discussion of the restatement of employment law. It’s very controversial and there were a number of motions – some to table the work on it, another to reach out to a group of law professors who have a very strong interest and to make sure that they have a seat at the table during the conversations. Both those motions were delayed until later in the session but they ultimately failed. We began by going through the provisions section by section. There were a number of comments offered from all different perspectives on each section and, in fact, the discussion was so slow that we were delayed for lunch and had to come back to some of the later provisions after lunch, which was a change in the planned program schedule.

When we adjourned for lunch I had a chance to sit with Mary Kay Kane, former Dean of Hastings, and Marjorie Girth, former Dean of Georgia State. The luncheon speaker was Judge Carolyn Dineen King of the Fifth Circuit and her luncheon talk was on the politicization of the judicial selection process and how that’s a threat to judicial independence. The lunch consisted of chicken with an interesting fruit sauce over couscous with raisins and shredded carrots. Dessert was a cream puff that was seated on apricot and chocolate sauce.

After lunch we reconvened and took a look at a proposal to amend section 301 of the UCC. That passed without much conversation at all. We returned then to the restatement of employment law. During this session, I did offer some comments on the public policy exception to employment at-will. There had been speakers who expressed reservations about that claim sounding in tort and I offered three suggestions as to why the drafters had it right. One is that it’s more than a contract issue in that there are public externalities. Those folks are not contractual parties to the employment relationship. Second, employers should be deterred from firing employees who engage in this behavior in the sense that it sets a tone for other employees who might report wrongful conduct. And third, an employee who is doing the right thing in the work place and trying to report something that might cause harm to the public could reasonably experience emotional harm for being terminated for doing the right thing. I think the drafters appreciated support for their position of this as a tort claim rather than a contractual claim. The rest of the day ended up with principles of the law of software contracts, but by that time I had retreated to my room to check e-mail and draft correspondence.

Wednesday night, Stacie Walters picked me up and we went and had dinner at Ceiba Restaurant. It’s a very interesting Cuban fusion restaurant. I had the soup special which was corn, chorizo and pepper and Stacie had a black bean soup. My main course was slow braised pork shank feijoada. It had black beans, collard greens, rice and traditional accompaniments. Stacie had the whole crispy red snapper veracruz with tomatoes, so frito, manzanillo olives, capers and pickled jalapenos. It’s always great to spend time with Stacie and that evening was no exception. Then it was time to pack up and get ready to head back to Fayetteville the next morning.

Tuesday at 9:00 a.m., the ALI meeting began with a report on the principles of the law of non-profit organizations. As you might imagine there was a great deal of interest among the membership on this topic. If you’re an academic your institution is generally a non-profit institution, plus many attorneys serve on the boards of non-profits of all kinds and though we tend to think of non-profits as being charities, there are also non-profit organizations that are not charitable in nature but that serve very important functions in society. It was a very lively and interesting discussion. As I wandered out to get a cup of coffee, I ran into my law school Torts Professor Michael Green who’s now teaching at Wake Forest. It was great to see him.

At 12:45 p.m. the meeting adjourned for lunch and I went with Federal Court of Appeals Judge John M. Rogers and Professor Steve Sheppard to a restaurant called City Lights of China, a Chinese restaurant recommended by the concierge in the Mayflower Hotel. It was within walking distance, actually not too far off Dupont Circle. When you go in, you go down a few stairs. It was fantastic. One of the things I think we need more of in Fayetteville is really good Chinese food. We had asparagus with spice salt and it was very fresh, crisp and delicious. I had spicy duck slices served with mushrooms and peppers. Prof. Sheppard had szechwan chicken and Judge Rogers had eggplant. It was a pretty healthy meal and I was actually even able to get an Arnold Palmer, which is unusual in a Chinese restaurant. (An Arnold Palmer is of course half lemonade and half ice tea). I enjoyed meeting Judge Rogers and getting to know a little bit about him as well as life on the bench.

We were very full as we walked back. We stopped at Kramer Bookstore on the way back to the hotel. The afternoon session was on restitution and unjust enrichment and I stayed for a little bit and then went up to my room to comb through e-mails and get some work done.

That evening was the annual reception and annual dinner for ALI and the dinner speaker was President Michael Traynor, the outgoing President of ALI. Professor Killenbeck was not able to attend, so he gave me his ticket and Stacie Walters joined me at the dinner, which was black tie optional. (For those of you who follow the blog, Stacie’s a regular.) We were fortunate in that we sat with a number of dignitaries at our table, including Yale Law Professor Drew Days, attorney Charles Cooper (chairman of the law firm Cooper & Kirk, PLLC) and his wife Deb and Judge Everett Robinson from Durham, NC. We had a delightful dinner getting to know each one of them. They made us feel very welcome, both me as a new member to ALI, and Stacie as a visitor. The dinner remarks given by Michael Traynor were right on target in that they focused on lawyers and our role in defending the rule of law. It was a delightful evening (I said that didn’t I? But indeed it was) and thanks very much to Prof. Killenbeck for providing the dinner ticket to Stacie. Thanks too, to all our dinner companions for making dinner so enjoyable.

After dinner it was time to rest for the next morning because the first session of the next day was the restatement of employment law and as you might imagine, I have a particular interest in that substantive area and had received a heads up that there might be some controversy about some of the provisions. I wanted to be rested to be alert and to participate and contribute to that discussion.

Today was the first day of the American Law Institute (ALI) 85th Annual Meeting. According to the certificate of incorporation of the ALI (www.ali.org), the particular business and objects of the society are educational and to promote the clarification and simplification of the law and its better adaptation to social needs; to secure the better administration of justice; and to encourage and carry on scholarly and scientific legal work.

The session began with a report on the Supreme Court from Justice Ginsburg who was very funny and a great speaker. I’ll share just a few highlights of her remarks. She made a joke that the Courts had many friends this term and what she was referring to was the fact that there were 574 amicus briefs filed. She noted that the Court had reached decisions much more on a consensus basis this term than in the last term and she talked about some of the more significant cases, including the Heller case on gun control, which is the City of DC’s gun control law being challenged on the second amendment right. The court examined issues around the U.S.’s detention in Guantanamo Bay, specifically the issues of whether the detainees are protected by the constitutional right to Habeas Corpus and whether if not, Congress established adequate substitution for Habeas review.

Another case Justice Ginsburg mentioned is the Medellin case involving the Vienna Convention, under which aliens who are arrested must be told of their right to contact the Consulate and that wasn’t done in the case of a Mexican national now on death row. When the Texas court heard that argument, the Court said that he forfeited his rights when his lawyer failed to raise them. The attorney for the Mexican national brought the case in the International Court of Justice and won and as a result, the Bush administration withdrew from the protocol that required the Mexican to be told his rights. Then they ordered the state court to reexamine the issue of death row inmates in that situation in light of the ICJ opinion. Texas’ response was that the President can’t overrule state court rulings and congressional action would be required to render the ICJ decision binding. Another case Justice Ginsburg mentioned was the Crawford case. It was a voting rights case and had to do with the state requiring a photo ID. The plaintiff lost in that case according to the Justice because there was very little evidence that the burdens imposed by the law outweighed the state interest and voter fraud. Justice Ginsburg pointed out in particular that the group challenging the law couldn’t point to one specific identifiable person for whom the ID requirement was going to be problem, so that made it an uphill battle for them to win. As you can see, there were a number of pretty interesting questions that the Court had to hear.

After Justice Ginsburg’s Supreme Court review, there were a number of business items, including announcements of emeritus status members, and a report on the reorganization of ALI-ABA. There was a report given on the new members of the ALI and the push for members from under-represented states as well as women and people of color. This was followed by a treasurer’s report. Back to the membership report, ALI now has 2,706 elected members plus additional honorary and life members. The membership chair noted that in 1994, 13% were women and today that number is 25%. In 1994, 3% of the members were people of color and that’s now up to 13%. The new President of ALI for the first time ever in 85 years is Roberta Ramos, a woman. She was also the first woman President of the American Bar Association.

After that business, we heard a status report on capital punishment. This turned out to be a pretty interesting session because last year there was apparently a motion that ALI take a position on the death penalty, in opposition. That motion was withdrawn for further consideration and study. Two reporters have been appointed, a brother and sister team of academics, to study the issue in more detail. The speakers who came to the microphones to speak about the capital punishment and ALI position or what the response should be had several different ideas. I know from talking to one judge who was attending the meeting, sitting near me, that her concern was being affiliated with an organization that took an anti capital punishment position when, as part of her job, she might have to sentence defendants to death. She thought that might create the appearance of a conflict, so she was very uncomfortable about ALI taking a position.
Other speakers on the subject talked about the fact that even if ALI ended up not taking a position, it really should do the background work to find out under what conditions it’s appropriate to give a death sentence or at least look at the cases in the states and try to come up with a series of principles. That was an interesting start to the substantive law business of this ALI session.

The next session was on principles of the law of aggregate litigation. Principles are different from restatements. Principles are gathered when an area of law is somewhat unsettled or at least not settled enough for a restatement. Then the ALI (and this is my understanding) compiles them to be used as guidelines in a particular area of law. The way the sessions are conducted on these various principles and restatements is that the reporter on a particular principle or restatement announces that the session is going to begin. There are two huge screens on either side of the board ballroom and the provisions that will be discussed are projected. People come to the mic and give their comments, suggestions, and questions to the reporters and it proceeds that way through each section being discussed on a particular day. The speakers who come to the mic would not only address the substance, but sometimes the placement of particular sections or black letter law or comments. For example, sometimes there would be suggestions to move certain sections or comments in a way that would be more helpful. It was very interesting. All of the attendees received the restatements or principles in advance and the drafts were also available in the back of the ballroom before each session began. In addition as noted before, they are projected on two screens so that you can follow along and hear the discussion.

Once we adjourned for lunch, there was a luncheon for new members of ALI. At my table was Bill Wagner who is a member of the Council of ALI, Andrew Schultz who is a new member, Michael Pearson who is a new member, Robin Russell who is a new member, and Juliet Moringiello who was a 5-year member of ALI. The idea of the luncheon was for us to get to know some other new members and for some of the longer term members of ALI to get to know a little bit about each of us – why we joined, where we are from, what our background areas are, and which of the work of the ALI we would be most interested in participating in. The lunch was pretty unusual for a conference lunch; it was a large crab cake with a warm bean salad and asparagus. Dessert was a berry mousse little tart. It’s also unusual to get lemonade at a conference lunch. It was a pretty good lunch.

In the afternoon we returned to the work on the aggregate litigation principles. At 4:30 p.m. I had to duck out early for a conference call with the Ethics Committee of the Labor and Employment Law section of the ABA. We were going over the mid-winter meeting and beginning the process of planning next year’s mid-winter meeting with the co-chairs Justin Schwartz and Peggy Luke.

That evening, there was a members’ reception and buffet held at the Washington Club at Patterson House. The Patterson House was built in 1901 and is a stunning Beau-Arts Mansion designed by noted architect Stanford White to resemble a traditional renaissance palace and is the only remaining mansion on the circle once surrounded by such magnificent homes. Charles Lindbergh was a guest there after his transatlantic flight and that is where the members’ reception and buffet were held on Monday evening. On the way walking there with Guy Du Pont and Professor Sheppard, I ran into Linda Ammons, a fellow Dean who I have mentioned before and have pictures of both in the blog and on Facebook. It was great to see her. Once at the reception there were a number of folks that I knew – Price Marshall was there, as well as Linda Green from the University of Wisconsin, our own Professors Goforth and Killenbeck, and I ended up meeting John McCamus who is a Professor of Law at Osgoode in Toronto and a former Dean. We had a long talk about deaning and he was pretty helpful.

After the reception we remembered we had noticed an Indian restaurant (and for those of you who follow the blog know that’s one of my favorite cuisines), so I convinced them (coaxed them, cajoled them) into having dinner there. It was me, Steve Sheppard, Guy and John McCamus. We began with some samosas, and we had chicken tikka saas, lamb vindaloo, as well as rice with peas, and naan of course. It was great food, good company, and a lot of fun. It was a good start to the ALI meeting. A long day, but a good day.