May 19- Day 1 of ALI Annual Meeting

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.