THE QUARTERLY NEWSLETTER OF THE AMERICAN LAW INSTITUTE VOLUME 37 NUMBER 2 SPRING 2015

THE PRESIDENT’S LETTER Three Additional ALI Member Projects to Begin in 2015 Engagement The work of The American Law Institute will continue to expand in 2015 as the ALI Council approved three new projects to begin this year. The Project on As spring settles in New Mexico, let me note Sexual and Gender-Based Misconduct on Campus: Procedural Frameworks that our Council met in January in Philadelphia and Analysis; Principles of the Law, Police Investigations; and Restatement of and somehow missed the really bad weather. the Law, Children and the Law, will all commence this year, and members may Over the last five months we have had both register now to join the Members Consultative Groups of any of these projects. project meetings and receptions in Chicago, San Francisco, and Los Angeles. It was sunny wherever we met. Perhaps we should have tried to help Boston!

We have held some of our Adviser and MCG meetings around the country to give more of our members a chance to participate in a substantive project meeting and to meet informally at receptions in their own home towns. In each case, we have been the happy From left, Reporters Barry Friedman, Vicki C. Jackson, and Elizabeth S. Scott recipients of the hospitality of a law firm for our after-meeting program and reception. These three projects join the four projects announced in the fall of 2014— Restatement of the Law Third, Conflict of Laws; Restatement of the Law I just came from Los Angeles where, after Fourth, Property; Restatement of the Law, Copyright; and Principles of the the meeting of the Advisers and others for Law, Compliance, Enforcement, and Risk Management for Corporations, our Restatement of Nonprofit Organizations, Nonprofits, and Other Organizations. Advisers on both Copyright and Conflict the firm of Munger, Tolles & Olson hosted a of Laws have been announced. Advisers for the other five projects are still wonderful reception and provided space for being considered. a first-rate program. Judge William Fletcher of the Ninth Circuit, Justice Goodwin Liu of The Project on Sexual and Gender-Based Misconduct on Campus: the California Supreme Court, and Presiding Procedural Frameworks and Analysis will examine college and Judge Carolyn Kuhl of the Los Angeles Superior university responses to complaints of gender-based and sexual misconduct, Court participated in a fascinating program that including sexual assault. A partial list of issues to be considered includes focused on what each of them found useful and reporting procedures; confidentiality; relationships with police and local important about belonging to and participating criminal justice, including obligations to report; interim measures and actively in The American Law Institute. I have support for complainants and fair treatment of the accused; investigation received rave reviews of the program. Members and adjudication, including training requirements for investigators and from all over the Los Angeles area enjoyed the adjudicators; the role of ; the creation and maintenance of records; chance to get together to chat and hear from sanctions or remedies; and appeals. The project will also examine informal such sage members of the bench. We hope to resolutions, as well as the nature of hearings (including, for example, schedule more receptions around the country admissible evidence and methods of taking testimony). this year and next.

REPORTER: At each of these meetings, members ask us Vicki C. Jackson, Thurgood Marshall Professor of Constitutional Law, how they can become more involved in The American Law Institute. The answer is simple. Fulfilling the ALI mission requires the very ASSOCIATE REPORTER: hard intellectual work of drafting and reviewing Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law; drafts of Restatements, Principles, and Model Director, Center for Gender and Sexuality Law, Columbia Law School; and Codes, and addressing hard problems with Executive Vice President for University Life, Columbia University continued on page 2 continued on page 17 2 | THE ALI REPORTER

EDITOR Marianne M. Walker THREE ADDITIONAL PROJECTS TO BEGIN IN 2015 215-243-1627 CONTINUED FROM PAGE 1 [email protected]

The ALI Reporter (ISSN 0164-5757) is published quarterly by The American Law Institute, 4025 Chestnut Street, The American Law Institute is currently considering the scope of the Philadelphia, PA 19104-3099. Nonprofit U.S. postage paid at newest Principles project, Principles of the Law, Police Investigations, Langhorne, PA. to determine the elements of police investigations that will be examined. POSTMASTER: Send address changes and any other A preliminary list of topics includes the form of eyewitness identification communications to 4025 Chestnut Street, Philadelphia, PA (building on the National Research Council’s 2014 report), forensic evidence- 19104-3099. gathering and preservation of exculpatory material, search and seizure, and remedies and accountability.

REPORTER: Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University Upcoming Meetings School of Law ASSOCIATE REPORTERS: & Events Brandon L. Garrett, Professor of Law, University of Virginia School of Law

For more information, visit www.ali.org Rachel A. Harmon, Sullivan & Cromwell Professor of Law, University of Virginia School of Law APRIL 2015 April 24 (JOINT) Tracey L. Meares, Walton Hale Hamilton Professor of Law, Principles of the Law, Government Ethics Jeffrey Rosen, Professor of Law, The George Washington University Philadelphia Law School

MAY 2015 Christopher Slobogin, Milton R. Underwood Chair in Law, Professor of May 18 Psychiatry, Director, Criminal Justice Program, Vanderbilt Law School COUNCIL MEETING Restatement of the Law, Children and the Law, will deal comprehensively Washington, DC with the legal regulation of children, rather than solely with family-law May 18 - 20 matters. The project will examine the scope of parental authority, including 2015 ANNUAL MEETING decisions on health care, education, discipline, and religion; rights and Washington, DC responsibilities of unmarried fathers; duty to rescue and protect children from harm; and state intervention. It will also take on the issues of children SEPTEMBER 2015 in public schools; children in the justice system, including age boundaries September 10 (JOINT) on jurisdiction, interrogation, the attorney–client relationship, and mental- Restatement of the Law Third, Torts: health screening, evaluation, and treatment; and children as legal persons, Liability for Economic Harm covering tort liability, free-speech rights, regulation of labor, children’s Philadelphia authority to make medical decisions, control over sexuality, and emancipation.

September 11 (JOINT) REPORTER: Principles of the Law, Election Law Elizabeth S. Scott, Harold R. Medina Professor of Law, Columbia Law School Philadelphia ASSOCIATE REPORTERS: September 17 (Advisers) September 18 (MCG) Richard J. Bonnie, Harrison Foundation Professor of Law and Medicine, University of Virginia School of Law Restatement of the Law, Charitable Nonprofit Organizations Emily Buss, Mark and Barbara Fried Professor of Law, University of Chicago Philadelphia Law School September 24 (MCG) September 25 (Advisers) Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York University School of Law Principles of the Law, Compliance, Enforcement and Risk Management for Clare Huntington, Professor of Law, Fordham University School of Law Corporations, Nonprofits, and Other Organizations Solangel Maldonado, Professor of Law, Seton Hall University School of Law New York

MAY 2016 May 16 - 18 2016 ANNUAL MEETING Washington, DC SPRING 2015 | 3

THE DIRECTOR’S LETTER

Our New Projects By Richard L. Revesz With nine months under my belt as Director, I am very excited focus on the importance of internal controls. We hope to about all of our new activity. During its October and January find consensus on best practices for both for-profit and meetings, the Council approved seven new projects (the nonprofit entities. terrific Reporters who will lead these projects are indicated in parentheses). Two of these projects are Restatements in areas in Principles of Police Investigations (Barry Friedman) will which we have worked throughout most of our history: Conflict deal with topics such as eyewitness identification, forensic of Laws (Kermit Roosevelt) and Property (Henry Smith). Both evidence gathering, interrogation, and searches and seizures. are ripe for re-examination. The intended audience for our advice will be policing agencies, executive officials, and legislatures with the authority to Two others are Restatements in areas that are new to the ALI: regulate police action. Living in New York City and traveling Copyright (Christopher Sprigman) and Children and the Law around the country, I am continuously reminded of the (Elizabeth Scott). At first glance, Copyright might appear to significance of this topic and of the need to find common be an odd project for us because it is governed by a detailed ground. I understand the challenge we are undertaking but am federal statute. But the statute leaves to judicial discretion cautiously optimistic that we will be able to find such common important matters, such as the boundary between copyrightable ground on some significant issues. expression and uncopyrightable ideas, the standard for and defenses to copyright infringement, and remedies. The Finally, our Project on Sexual and Gender-Based Misconduct on Restatement will principally focus on these matters. Guiding Campus: Procedural Frameworks and Analysis (Vicki Jackson) judicial discretion is at the core of the ALI’s mission. We can do will tackle the many procedural challenges faced by colleges that equally well in the federal statutory context as in the state and universities in responding to reports of sexual and gender- common law context. based misconduct. We have been working for some time on the Model Penal Code: Sexual Assault and Related Offenses, but As to Children and the Law, the ALI’s leadership, and that project focuses on criminal provisions, while our new one particularly the Projects Committee (formerly the Program will seek to determine “best practices” for procedural responses Committee) wonderfully chaired by Judge Lee Rosenthal, to reports of sexual and gender-based misconduct, including decided that children, rather than families, were the preferable approaches to disciplinary hearings, in colleges and universities. organizing concept. As the prospectus for the project notes: “For To give you a sense of the interest in this project, within two some purposes, children today are rights-bearing persons, and weeks 100 members signed up for the Members Consultative parental authority has become more limited. … But the basis Group, which I believe is a record response in the history of for recognizing children’s autonomy interests and limiting the ALI. parental and state authority has not been well articulated. Nor is there clarity about the conditions under which the law should, With these seven new undertakings, we now have 20 ongoing and should not, recognize children’s rights.” Those are the projects, which is roughly our capacity. My hope is that we will fascinating challenges that await us. complete multiple projects at the 2016 Annual Meeting, and that we will undertake some new projects in 2015-2016. In Our remaining three new projects seek primarily to give particular, I would very much like to add the projects that will be guidance to institutions other than the courts and deal with necessary for us to finish the Restatement Third of Torts. matters that have significant legal components and great social salience. We believe that each will benefit from the careful, Recruiting Reporters has been one of the ALI activities that exacting process undertaken by our Reporters and Associate I have enjoyed the most! The goal is to identify the very best Reporters, the sustained scrutiny of a very broad group of expert person for each project and to persuade that person to take on Advisers representing a broad spectrum of the legal profession, a very significant commitment. The challenge with recruiting the further attention of our Members Consultative Group, and Reporters is that individuals of that distinction already have a finally, the intense focus of our two approval bodies: the Council full plate of interesting projects. I was very gratified that for each and the membership attending our Annual Meeting. of our seven new projects, I approached the academics who I thought would carry out the work with the most distinction, and Principles of Compliance, Enforcement, and Risk Management in the end each one agreed (and were subsequently approved by for Corporations, Nonprofits, and Other Organizations the Council). And we also were able to recruit an enormously (Geoffrey Miller) will focus on issues that have been central distinguished group of 27 Associate Reporters. Altogether, to the business community since the financial crisis of 2008. 21 law schools are represented. Our ability to enlist all these Highly publicized, multi-billion settlements of government individuals is an extraordinary testament to the esteem in which enforcement actions against major institutions are only the the ALI is held in the academy and the legal profession. most visible markers of the dramatic growth in compliance activities. Other indicators of the importance of our endeavor I continue to be awed by the extraordinary work that so many include dramatic increases in compliance positions, significant ALI members do to move forward our mission to “simplify and governance changes at the board level, and governmental clarify” the law and very much look forward to seeing you at the Annual Meeting, where this work is most intense! 4 | THE ALI REPORTER

Fables In Law By D. Brock Hornby U.S. District Judge D. Brock Hornby of the District of Maine is a member of the ALI Council. He wrote these Fables In Law for publication in The Green Bag. They are reprinted here by permission. Look for additional chapters in upcoming issues of The ALI Reporter.

Chapter 1, Legal Lessons From Field, Forest, And Glen

THE FOX’S THE MOLE IN HIS FOUNDATION OWN WORDS

Fox was representing Hedgehog in Snake prepared carefully for a dispute over whether contractor each witness in each case. For Mole had properly supervised the witnesses he cross-examined, he workers repairing Hedgehog’s had a list of leading questions, den. Fox called Hare as a witness and asked Hare whether Mole with alternate lines available, depending upon the answers. As had supervised the workers properly. Opposing counsel Snake an inexperienced advocate, he tended to use leading questions objected, claiming “Lack of foundation.” Judge Owl said to Fox, for the witnesses he called for his own side of the case as well “You need to lay a foundation before I will permit that question.” (unless there was objection), so that their testimony would support his theory of the evidence and the argument. Fox then proceeded as follows: In questioning his client Mole, Snake thus proceeded as follows: Fox: “Hare, have you ever been to Hedgehog’s den?” Snake: “You have been supervising construction Hare: “I have been visiting there on a daily basis for workers for 10 years, correct?” the past three months.” Mole: “Yes.” Fox: “Did you have occasion on your visits to see Mole at work?” Snake: “And during that time no one else has ever questioned your job performance, correct?” Hare: “Well, I saw him a couple of times, but during the repairs he was hardly ever there.” Mole: “That’s right.”

Fox: “How do you know that?” Snake: “You have never been inebriated on a job site, correct?” Hare: “Hedgehog was ill, and I visited with him daily, all day long, during the repair period.” Mole: “Correct.”

Fox: “How many times did you see Mole inspect the Snake: “And you never saw Hare at Hedgehog’s building site during that period?” den during the ten occasions on which you came to supervise the repairs, correct?” Hare: “Twice. Five minutes each time.” Mole: “Correct.” Fox: “What did you observe about Mole’s condition?” Experienced opposing counsel Fox never objected that Snake Hare: “Each time he appeared bleary-eyed and was improperly leading his own witness. Although Snake unsteady on his feet.” obtained the answers he wanted, the jury never got to hear Owl: “Objection overruled.” Mole tell in his own words what happened. As a result, in deliberations they were skeptical of this version. As a result of the careful foundation that Fox was prompted to lay, the jury found Hare’s testimony very important. Moral: Unless your witness is unreliable, let him tell his story in his own words. Juries pay more attention to the words of Moral: An experienced does not object for lack of witnesses than to the words of lawyers. foundation unless certain that the foundation cannot be laid. SPRING 2015 | 5

THE HARE’S FINAL Muskrat: “Yes.” ANSWER Fox: “And did you then swear to tell the truth, the Snake was cross-examining whole truth, and nothing but the truth, just as you Hare over Hare’s testimony did today before this jury?” that Possum had a carrot in his Muskrat: “Yes.” possession. Snake succeeded in getting Hare to agree that, at the time, dusk was falling, Hare was in a hurry, and he was some Fox: “And did you not then say – and I quote – that distance from Possum. Snake concluded the line of questioning the waterway around the dam was huge?” by asking Hare, “So you don’t really know what Possum was Muskrat (puzzled): “Yes.” carrying, do you?” Hare blurted out in response, “Of course I do. I saw him take something long and orange out of his mouth and Whereupon, Fox walked triumphantly back to counsel table, heard him scream, ‘This carrot tastes awful.’” threw down the deposition transcript, and said to Owl, “No more questions,” looking meaningfully at the creatures on the jury. Moral: It is safer not to ask the final question. Instead, one can The jury, however, was nonplussed by Fox’s performance. argue later, after the record is closed, that the witness could not be confident of what he saw. Moral: Not every difference in the choice of adjective amounts to impeachment. THE UNIMPEACHED MUSKRAT THE SNAKE’S NOT-SO-BRILLIANT Fox was cross-examining Muskrat who had proven to be a credible BRIEF witness against Fox’s client. Snake filed a legal brief with Owl. Fox had in her hand a copy of Snake had worked on it late into Muskrat’s deposition transcript. the evening, fortified by a little Fox: “So, Muskrat, did I hear you on direct wine. Some of Snake’s arguments examination say that the waterway around the dam were brilliant, but they dripped was large?” with sarcasm and vitriol. Fox, on the other hand, filed a brief whose logic was simple and plainspoken, without histrionics or Muskrat (pausing): “Yes.” memorable utterances. As Owl studied both briefs in deciding the controversy between the parties, she virtually winced each Fox: “Do you remember that I took your deposition time she had to re-read Snake’s brief. Owl was much more on January 12 of this year?” comfortable re-reading Fox’s less vehement brief. In the end, Muskrat: “The date sounds about right.” Fox’s more temperate argument prevailed in Owl’s decision.

Fox: “And was there a court reporter there recording Moral: For persuasion, simple statements generally wear better everything that you said just as there is here in the and longer than sarcasm and bombast. Glen today?” 6 | THE ALI REPORTER

92nd Annual Meeting Preview We hope you can join us at this year’s Annual Meeting, taking place May 18–20 at the Ritz Carlton in Washington, DC. There are seven projects on the agenda, and we have assembled an exciting lineup of speakers. The Annual Meeting is a critical step in our mission of clarifying and improving the law, and we rely on our members to make our Meeting a success. It’s also a terrific opportunity to reconnect with old friends and make some new ones.

SPEAKERS

James B. Comey, Jr., is the Director of the Federal Bureau of Investigation.

William C. Hubbard is President of the American Bar Association and a partner with the Columbia, SC, office of Nelson Mullins Riley & Scarborough.

Margaret H. Marshall served for 11 years as Chief Justice of the Massachusetts Supreme Judicial Court and is now Senior Fellow of the Corporation of Yale University, a Senior Research Fellow and Lecturer at Harvard Law School, and Senior Counsel at Choate, Hall & Stewart.

George J. Mitchell served as a United States Senator from FROM LEFT TO RIGHT, TOP TO BOTTOM Maine from 1980 to 1995 and as Senate Majority Leader from James B. Comey, Jr., William C. Hubbard, 1989 to 1995. Margaret H. Marshall, George J. Mitchell, Olympia J. Snowe, Larry W. Sonsini, Former United States Senator Olympia J. Snowe served in the U.S. Senate from 1995 to 2013 and as a Member of the U.S. House of Representatives from 1979 to 1995.

Larry W. Sonsini is Chairman of Wilson Sonsini Goodrich & Rosati.

YOUNG SCHOLARS MEDAL RECIPIENTS Sri Srinivasan is a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Elizabeth Chamblee Burch of the University of Georgia School of Law TENTATIVE PROJECT LIST Michael Simkovic of Seton Hall University School of Law Restatement of the Law, The Law of American Indians

Justice Goodwin Liu of the California Supreme Court, Restatement of the Law, Liability Insurance who chairs the Young Scholars Medal Selection Restatement of the Law Third, Torts: Intentional Torts Committee, will present the awards on Monday, to Persons May 18, at the ALI Annual Meeting. Restatement of the Law Fourth, The Foreign Relations Law of the United States

Restatement of the Law, The U.S. Law of International FOR MORE INFORMATION OR TO Commercial Arbitration REGISTER NOW, PLEASE VISIT THE Principles of the Law, Government Ethics ANNUAL MEETING WEBSITE AT Model Penal Code: Sexual Assault and Related Offenses 2015ANNUALMEETING.ORG. (Discussion Draft) If you have questions about the Annual Meeting, please call our Membership Department at 215-243-1623 or 1624. SPRING 2015 | 7 THE DISTINGUISHED SERVICE AWARD Members Robert H. Mundheim Reception This year, the Distinguished Service Award will be presented to Robert H. Mundheim, whose remarkable legal and Buffet career has taken him to the pinnacle of Monday 6:30 to 8:30 p.m. achievement in government service, National Museum of the American Indian private practice, academia, and the Tickets are $75 per person. corporate world. While building this stellar resume, Mr. Mundeim has Enjoy cocktails, a sumptuous buffet, and time always made time for The American to socialize with other ALI members amid a Law Institute, often helping to chart the magnificent display of American Indian art at Institute’s course by devoting his time this year’s Members Reception at the National and talents to important committees. Museum of the American Indian on Monday, May 18, from 6:30 p.m. to 8:30 p.m. Most notably, Mr. Mundheim served as chair of the Special Committee on Governance, overseeing a critically important time of transition as ALI The museum, part of the Smithsonian revamped its Bylaws and Council Rules to mandate term limits. The work of Institution, houses one of the world’s largest that committee helped to modernize the Institute’s governing structure and and most diverse collections of its kind. ensured that it remains vibrant and constantly benefits from the infusion of The museum’s curvilinear architecture, its fresh participants and new ideas. indigenous landscaping, and its exhibitions were all designed in collaboration with tribes The breadth of Mr. Mundheim’s professional achievements is truly and communities from across the hemisphere. astonishing. Currently of counsel at Shearman & Sterling LLP in New York, he has served as general counsel to the U.S. Treasury Department; Transportation will be provided from cochairman of Fried, Frank, Harris, Shriver & Jacobson; senior executive The Ritz-Carlton Hotel to the museum and vice president and general counsel at Salomon Smith Barney Holdings Inc.; returning to the hotel after the reception. and dean of the University of Pennsylvania Law School. He also chaired the The museum is located at 4th Street and American Bar Association’s Standing Committee on Ethics and Professional Independence Avenue SW, Washington, DC, Responsibility (2006-2011) and served as a member of the ABA Task Force and the guest entrance is located at 3rd Street on Corporate Responsibility; he has been a faculty member of the Vanderbilt and Maryland Avenue, SW, Washington, DC. Directors’ College, the Duke Directors’ Education Institute, and the Stanford Directors’ College.

Perhaps even more astonishing is the time and effort Mr. Mundheim has devoted to The American Law Institute. Elected to the Institute in 1969, he Annual served on ALI’s Council for 27 years, taking emeritus status in 2012. He has served a total of eight years on the ALI Executive Committee; 15 years on Reception the Investment Committee, including three years as chair; five years on the Nominating Committee; and 14 years on the Special Committee on Conflicts of Interest. He is an Adviser on the Restatement of the Law of Charitable and Dinner Nonprofit Organizations and joined the Members Consultative Group to work (Black tie optional) on Principles of the Law of Government Ethics. He was also an Adviser and Consultant on Principles of Corporate Governance (1994) and an Adviser on Tuesday – Reception at 7:00 p.m. the Restatement of the Law Third, The Law Governing Lawyers (2000). Dinner begins at 7:45 p.m. Tickets are $125 per person

ABOUT THE DISTINGUISHED SERVICE AWARD After dinner in The Ritz-Carlton Ballroom, the The Distinguished Service Award is given from time to time to a member Honorable Olympia J. Snowe and the Honorable who over many years has played a major role in the Institute as an institution, George J. Mitchell will be joined on stage by ALI accepting significant burdens as an officer or committee chair and helping President Roberta Cooper Ramo for an open keep the Institute on a steady course as the greatest private law-reform discussion of law and politics. organization in the world.

Previous recipients include: FOR MORE INFORMATION OR TO Gerhard Casper — 2014 Roswell B. Perkins — 2008 REGISTER NOW, PLEASE VISIT Geoffrey C. Hazard, Jr. — 2013 Bennett Boskey — 2007 THE ANNUAL MEETING WEBSITE Michael Traynor — 2011 John T. Subak — 2006 AT 2015ANNUALMEETING.ORG. 8 | THE ALI REPORTER

IN THIS MEMBERS SPOTLIGHT, WE SPOKE TO THREE OF OUR IN-HOUSE COUNSEL ALI MEMBERS TO FIND OUT WHAT BEING AN ALI MEMBER HAS MEANT TO THEM.

must say that the ALI may well be one of the last bastions of civility in our nation. Over the years in its quest to clarify and Vanita M. Banks simplify the law, the ALI has endeavored to balance declarative Corporate Counsel, Allstate Insurance Company and normative considerations, and the challenge of stating the law as it is versus what the law should be. This Restatement When did you first consider project illustrates this continuing challenge. becoming a lawyer, and what was your career path to becoming What is your idea of a perfect vacation? Tell us about an Corporate Counsel at Allstate? amazing place you’ve been or someplace you are planning to travel to. I decided to become a lawyer at age seven based on images of lawyers on My perfect vacation includes an ocean and a beach. In 2008, television. In fourth grade, I authored during my term as President of the National Bar Association, I a paper entitled Women and the Law. led a delegation of lawyers, judges, and physicians to Cuba on a From an early age, I viewed the law as humanitarian mission to promote civil society. Cuba is on the a calling, not just a profession. The law brink of transformative change, and I hope to return soon to was taught as a calling at Valparaiso help shape its evolution. University School of Law where I attended, and focused on its ethical underpinnings. I believe that we are called to lift and improve society as we climb in our profession, and in the words of Charles Hamilton Houston that “a lawyer that is not a social R. Hewitt Pate engineer is a parasite on society.” My career has coincided with the evolution of in-house counsel within corporations. Vice President and General Counsel, Chevron Aspiring to practice corporate law, I took insurance, business, and tax courses in law school. While teaching Legal Research When did you first consider and Writing and Moot Court at DePaul University College of becoming a lawyer, and what was Law, I obtained an L.L.M. in Taxation. This curriculum prepared your career path to becoming me for the opportunity with Allstate, where I have specialized General Counsel at Chevron? in complex insurance and employment law and litigation. I am I first considered becoming a lawyer currently a member of our Government & Industry Relations during high school when I got Public Policy Division, where I lead our cybersecurity and involved in a mock trial at Boy’s State privacy initiatives. The opportunity to help shape public policy in Virginia. After law school, I had on issues of vital importance to our nation and the world is the good fortune to have clerked for very rewarding. J. Harvie Wilkinson at the Fourth Circuit, and for Justices Lewis Powell What have you gained as an in-house lawyer from your and Anthony Kennedy, and then to go to work for an outstanding membership in The American Law Institute? lawyer named Tom Slater at Hunton & Williams. Along the way As a new ALI member, I am looking forward to the continued I have also had the chance to teach at UVa Law School and then intellectual exchange with members from across the nation and to pursue a period of public service at the Justice Department. the world, many of whose bodies of decisions and scholarship My predecessor at Chevron was Charles James, who was my I have consulted and admired throughout my career. The boss at the DOJ and another great mentor and friend. That’s the opportunity to work with this accomplished group of lawyers, short story of how I ended up at Chevron. I feel very fortunate to judges, and scholars to shape the law is unparalleled. have had such a varied, challenging, and enjoyable career.

You serve as an Adviser on ALI’s Restatement of the Law of What have you gained as an in-house lawyer from your Liability Insurance. Can you describe what it has been like membership in The American Law Institute? to participate in project meetings and seeing how the project In-house lawyers must necessarily be tightly focused on their progresses through votes at the ALI Annual Meeting? own company and its industry, and ALI is a valuable vehicle to It has been a privilege to serve as an Adviser to the ALI keep in touch with the wider profession. It would be good to see Restatement of the Law of Liability Insurance. To be part of an more in-house lawyers participating in ALI projects, as I think it organization envisioned by Judges Learned Hand and Benjamin would strengthen ALI’s work. Cardozo and Professor Samuel Williston is truly an honor. I SPRING 2015 | 9

You serve as an Adviser on ALI’s recently launched project became a partner at Washington, DC’s, Wiley, Rein & Fielding, on the Foreign Relations Law of the United States. Why was focusing on constitutional, administrative, and appellate this project especially important to you, and what do you litigation. While at Wiley, I became deeply involved in the ABA’s anticipate as you begin to work with this group? Section of Administrative and Regulatory Law, ultimately chairing the Section. I was also an adjunct scholar at the Chevron’s global footprint requires us to care a lot about American Enterprise Institute for a few years, writing a book international rule of law. Some of my work during the past called Retroactive Legislation. A successful First Amendment five years, for example, has involved defending against an challenge to the FDA led to my becoming FDA Chief Counsel in Ecuadorian judgment that the Southern District of New York 2001. After a brief sojourn at Sidley Austin, I was recruited to be found to be fraudulent, and that has involved litigation in General Counsel of GSK, a fabulous professional opportunity to Argentina, Brazil, Canada, and Gibraltar, as well as Bilateral work at a company with the object of helping patients do more, Investment Treaty arbitration. I hope to contribute a little feel better, and live longer. practical experience to the project, since I could not pretend to compete with the other Advisers as a scholar. You serve as an Adviser on ALI’s recently launched project on Conflict of Laws and you have also signed up to work What is your idea of a perfect vacation? Tell us about an on our new Corporate Compliance project. Why are these amazing place you’ve been or someplace you are planning to projects especially important to you, and what do you travel to. anticipate as you begin to work with these groups?

Being the lawyer for any business in California, much less Even though the Compliance function does not report to me at an energy company, can be a challenge. But it is impossible GSK, I work very closely with our Compliance group. I believe I to beat the weather, the activities, or the food. I get a chance can help give a real-world perspective on what happens inside to visit some interesting places where Chevron companies companies, why it happens, and what is possible. As for conflicts have operations—Australia, Kazakhstan, Argentina, Nigeria, of law—a subject I found quite challenging in law school—I Thailand, and Indonesia, to name a few. For vacation, I would was invited to join by Director Revesz. The list of scholars and be happy to spend time at the beaches or mountains here judges on the project is so impressive that I instantly wanted in California. to be associated with this effort. Moreover, for a multinational company like GSK, the question of which law will apply to a dispute can be outcome determinative. I hope I can bring that experience and perspective to this group.

Daniel E. Troy What have you gained/What do you hope to gain as an General Counsel and Senior Vice President at in-house lawyer from your membership in The American GlaxoSmithKline Law Institute? I hope to have a positive impact on the incredibly influential When did you first consider Restatements that the ALI produces, particularly by bringing becoming a lawyer, and what was my practical experience to bear. your career path to becoming General Counsel and Senior Vice What is your idea of a perfect vacation? Tell us about an President at GlaxoSmithKline? amazing place you’ve been or someplace you are planning to travel to. I knew in high school that I wanted to be a lawyer, as I enjoyed the My wife and three children and I love to visit my brother’s application of law to facts and felt as family in Israel, an amazing country that is perfect to visit (other if I had a legal turn of mind. I started than in the summer). We can tour ancient religious sites in the out wanting to be a sports agent, then morning and by afternoon be hiking in mountains or on the Tel a baseball arbitrator. I eventually landed in entertainment law, Aviv beach. Notwithstanding the impression one can get in the although only for the first three years of my career. I then moved media, the most dangerous activity in Israel is driving. We also to the Department of Justice’s Office of Legal Counsel, where I love hiking in Switzerland, most recently in Zermatt. specialized in First Amendment law. From there, I joined and 10 | THE ALI REPORTER Former Clerks of ALI Celebrates Three Judge John Minor New 50-Year Members Wisdom Join to This year, The American Law Institute honors three members Fund Award of the Class of 1965 on becoming 50-Year members. M. Bernard Aidinoff served as a consultant on To ensure the perpetuity of the John Minor the ALI’s Federal Income Tax Project and was Wisdom Award—one of The American Law chair of ALI’s Tax Program Committee. In 1995, he Institute’s most prestigious awards—an received the ALI’s John Minor Wisdom Award for initiative to raise funds was recently launched outstanding member contributions to the Institute’s by ALI members who are former clerks of the work. A magna cum laude graduate of the Harvard legendary judge for whom the award is named. Law School, Mr. Aidinoff clerked for Judge Learned Hand of the U.S. Court of Appeals for the Second Established by The American Law Institute Circuit. He then joined Sullivan & Cromwell in 1956, in 1990, the John Minor Wisdom Award became a partner of the firm in 1963, and has been honors the legacy of Judge Wisdom of the senior counsel since 1997. U.S. Court of Appeals for the Fifth Circuit, a longtime ALI Council member and Presidential Medal of Freedom recipient renowned for his Geoffrey C. Hazard, Jr., was Director of The landmark decisions ordering and implementing American Law Institute from 1984 to 1999 and desegregation in the wake of the Supreme served as a Reporter for the Restatement Second Court’s historic ruling in Brown v. Board of Judgments and the ALI/UNIDROIT Principles of Education. of Transnational Civil Procedure. He has been The award is given from time to time to an a member of the ALI Council since May 1999. A ALI member who has rendered extraordinary leading expert in the fields of professional ethics service to the Institute, but is not a project and civil procedure, Professor Hazard has taught Reporter, an officer, or a member of Council. at law schools since 1958, beginning at Boalt Hall Over the years the Wisdom Award has been (University of California, Berkeley), then the given only seven times, most recently in University of Chicago, Yale University, and the 2014 to Professor Neil B. Cohen of Brooklyn University of Pennsylvania. He is the Emeritus Law School, for his decades of service on the Thomas E. Miller Distinguished Professor of Law at Institute’s commercial-law projects. Previous the University of California, Hastings College of the recipients were Guy Miller Struve (2011), Law, Emeritus Professor of Law at the University of Judge Jack B. Weinstein (2006), Michael Pennsylvania Law School, and the Sterling Professor Marks Cohen (2004), Donald J. Rapson (1999), of Law Emeritus at Yale Law School. M. Bernard Aidinoff (1995), and W. Loeber Landau (1993). Alan Lindsay contributed to the ALI’s Federal To ensure that Judge Wisdom’s memory and Estate and Gift Taxation Recommendations project legacy of service be securely perpetuated within as one of the chairs of the Committee on Estate the Institute for the foreseeable future, his and Gift Taxes of the Section of Taxation of the former clerks set a goal of raising $50,000. The American Bar Association. He also contributed funds will be used to pay for a fitting award gift to the 1992 campaign to fund the ALI’s A. James and the recipient’s travel expenses to accept Casner Reporter’s Chair. A graduate of Harvard the award at an ALI Annual Meeting in the University and Harvard Law School, Mr. Lindsay years it is presented, as well as to support an in 1957 joined the Palm Beach, FL, law firm Alley, ALI project to gather and preserve materials Maass, Rogers & Lindsay, where he focused his relating to Judge Wisdom. To date, $15,000 has practice on estate law, tax planning, and been raised. The clerks intend to continue this trust administration. effort until reaching their goal.

To contribute to the John Minor Wisdom Award Fund, please contact Kyle Jakob, ALI Development Manager, at 215-243-1660 or [email protected]. SPRING 2015 | 11 January Council Meeting – Philadelphia

ALI Director Richard L. Revesz and Council member Mary M. Schroeder of the U.S. Court of Appeals for the Ninth Circuit join the Reporters on Restatement of the Law, The Law of American Indians: Matthew L.M. Fletcher and Wenona T. Singel of Michigan State University College of Law, and Kaighn Smith, Jr., of Drummond Woodsum.

Council member Yvonne Gonzalez Rogers Council member Seth P. Waxman of Council member Carol F. Lee of Taconic of the U.S. District Court for the Northern WilmerHale discusses two recent Supreme Capital Advisors LP makes a comment during District of California makes a comment Court arguments: Gelboim v. Bank of America a project session. during a project session. and Arizona State Legislature v. Arizona Independent Redistricting Commission.

Council member John H. Beisner of Skadden, Arps, Slate, Meagher & Flom LLP joins two of the Reporters on Restatement of the Law, Consumer Contracts: Florencia Marotta-Wurgler of New York University School of Law and Omri Ben-Shahar of University of Chicago Law School. 12 | THE ALI REPORTER

ALI’s Projects on the International Stage

CONFERENCE ON FOREIGN Dodge of the University of California, Hastings College of the RELATIONS LAW FEATURES SIX ON Law, who is a Reporter on the Jurisdiction section, and two of the Reporters on the Treaties section of the project, Curtis ALI RESTATEMENT PROJECT Alan Bradley of Duke Law School and Edward T. Swaine of Five of the Reporters on ALI’s Restatement of the Law Fourth, George Washington University Law School. Joining them will The Foreign Relations Law of the United States, will be be Professor Campbell Alan McLachlan of Victoria University traveling to Geneva in July to participate in a conference on of Wellington Law School in New Zealand, who serves on the comparative foreign relations law sponsored by Duke Law International Advisory Panel for the ALI Restatement. School. The conference, part of Duke’s summer Institute in Transnational Law, will be held at the University of Geneva IN PARAGUAY, ALI REPORTER and will consider similarities and differences in how nations— GEOFFREY P. MILLER DISCUSSES and the European Union as an entity—handle various issues CORPORATE COMPLIANCE PROJECT of foreign relations law. Scholars from various countries will present short papers outlining how these issues are addressed in Geoffrey P. Miller of New York University School of Law, the their countries or in the EU, and scholars from the United States lead Reporter on the new ALI project Principles of the Law, will draw comparisons to U.S. practice. Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations, recently Attending are the two Coordinating Reporters—Sarah H. visited Paraguay to discuss several of the project’s themes Cleveland of Columbia Law School and Paul B. Stephan of the with bankers, attorneys, economists, and government officials. University of Virginia School of Law—as well as William S. Foreign Relations

ALI Director Richard L. Revesz, project Coordinating Reporters Paul B. Stephan of the University of Virginia School of Law and Sarah H. Cleveland of Columbia Law School, and Reporters Edward T. Swaine of George Washington University Law School and Curtis A. Bradley of Duke Law School

Mary Catherine Malin of the U.S. Department of State and Conrad K. Harper discuss the A. Robert Pietrzak of Sidley Austin LLP Restatement of the Law Fourth, The Foreign Relations Law of the United States, during a break in the meeting. SPRING 2015 | 13

Professor Miller gave a major speech at the Central Bank of held at the headquarters of the World Intellectual Property Paraguay on the corporate governance of financial institutions. Organization (WIPO). He then met with Carlos G. Fernández Valdovinos, the President of the Central Bank, to discuss the American and Paraguayan The official text of this project,Intellectual Property: banking industries. Finally, he met with President Horacio Principles Governing Jurisdiction, Choice of Law, and Cartes, who was very interested in the ALI project and its Judgments in Transnational Disputes, was published in potential for improving corporate governance around the world. 2008 and provides a comprehensive framework for considering The two also discussed plans for reform of higher education in issues of private international law in intellectual property Paraguay as well as the need for enhanced compliance and risk disputes. Serving as Reporters on the project were Rochelle management at financial institutions. C. Dreyfuss of New York University School of Law, Jane C. Ginsburg of Columbia Law School, and François Dessemontet of Lausanne University in Switzerland. In January, Professors ALI PROJECT PROMPTS COLLABORATION Dreyfuss and Ginsburg presented the ALI’s work at a WIPO ON INTERNATIONAL INTELLECTUAL seminar in Geneva and collaborated with the International Law PROPERTY DISPUTES Association to consolidate the recommendations of the ALI project with similar work developed by the Max Planck Institute An ALI project on resolving international intellectual property for the European Union and by a consortium of Japanese and disputes is coming into its own. It was presented in January Korean intellectual property lawyers interested in streamlining 2015 by two of the project Reporters at a seminar in Geneva Asian litigation.

The Institute in the Courts The Restatement Second of Torts continues to attract The Utah Supreme Court, in a negligence action, expressly favorable attention from state courts, with the Vermont adopted the standards set forth in Restatement Second of and Utah Supreme Courts recently handing down decisions Torts § 317, which describes an employer’s duty to exercise adopting two different sections of that Restatement. reasonable care in preventing its employees from acting outside the scope of employment in intentionally harming others. In a case involving a defamation claim, the Vermont Supreme Parents brought suit on behalf of their minor daughter against Court adopted the conditional privilege recognized by a provider of services for individuals with mental and physical Restatement Second of Torts § 598A for inferior state disabilities, alleging that, because of the provider’s negligence officers whose statements were made in performance of in the hiring, training, and supervision of its employees, their official duties. In that case, the losing bidder on a contract to daughter, who had been playing outside one of its neighborhood run a state-subsidized spay/neuter program for pets of low- residential facilities and had been invited inside to watch income residents sued an employee of the state agency that television, was sexually assaulted by a facility employee. administered the program, alleging that defendant made false The Utah Supreme Court affirmed the trial court’s denial of statements to co-workers during the bid-selection process defendant’s motion for summary judgment on the question about plaintiff’s ability to run the program, and that these of duty, concluding that defendant owed a duty to plaintiffs’ libelous statements prejudiced the bid-selection committee daughter to exercise reasonable care in hiring, training, and against her. The trial court dismissed on immunity grounds; supervising its employees on the basis of a special relationship the Vermont Supreme Court affirmed, but did so by concluding established under the terms of § 317. The court reasoned that, instead that the Restatement’s conditional privilege for inferior because it was more than foreseeable that defendant’s workers state officers was directly applicable in this case and extended would come into contact with the public, including children to defendant’s statements, because plaintiff had alleged that such as plaintiff’s daughter, defendant was hardly in a position defendant was an employee of the state agency at issue and to question the basis for its knowledge of the necessity of had made the statements in the course of her employment. controlling its employees in their interactions with the public. Since plaintiff’s complaint thus showed the presence of the In adopting § 317, the court observed that, while it had not conditional privilege, plaintiff had the burden of overcoming previously endorsed the standards of that section directly, it it by demonstrating that defendant had abused the privilege found those standards eminently reasonable, noting that § 317 by acting with malice. Finding plaintiff’s allegations of malice had been widely endorsed throughout the United States. Graves deficient, the court declined to infer that defendant had acted v. North Eastern Services, Inc., 2015 UT 28, 2015 WL 404528 intentionally, knowingly, or recklessly for purposes of defeating (Jan. 30, 2015). the conditional privilege. Skaskiw v. Vermont Agency of Agriculture, 2014 WL 7237236 (Dec. 19, 2014). 14 | THE ALI REPORTER

Notes About Members and Colleagues

Mari Carmen Aponte, U.S. Ambassador Gerhard Casper, President Emeritus of Stanford University and a Professor of Law to El Salvador, and Emma Coleman Emeritus at Stanford Law School, will assume his duties as president-in-residence at Jordan, professor at Georgetown the American Academy in Berlin in July 2015. University Law Center, were selected as 2015 recipients of the American Bar Evan R. Chesler, chairman of Cravath, Swaine & Moore, has been named chairman of Association’s Margaret Brent Women the New York Public Library Board of Trustees. Lawyers of Achievement Award. Effective July 2015,Danielle M. Conway will become the first African American to At the ABA serve as dean of the University of Maine School of Law. Midyear Meeting, Mariano-Florentino Cuéllar was sworn in on January 5 as an Associate Justice of the Kim J. Askew California Supreme Court by Governor Jerry Brown. of K&L Gates LLP received the 2015 ABA Spirit of Excellence Award. The award recognizes lawyers who work to promote a more racially and ethnically diverse legal profession. Askew On December 3, Amelia H. Boss of Drexel University Thomas R. Kline School of Law received the Electronic Signature and Records Association’s Cornerstone lifetime achievement award. Cuéllar © Paul Kitagaki Jr/Sacramento Bee/ZUMA Wire On February 7, David L. Callies of the University of Hawai‘i at Mānoa William S. Richardson School of Law was given Quinn Emanuel Urquhart & Sullivan, LLP, announced on January 21 that Charles R. the Crystal Eagle Award by the Owners’ Eskridge III will join the firm’s Houston office as a partner. Mr. Eskridge is an Counsel of America for his lifetime of experienced trial lawyer who has handled a wide range of complex commercial matters. scholarship addressing land use, takings Matthew L.M. Fletcher of Michigan State University College of Law, the lead Reporter law, and private-property rights. for ALI’s Restatement of the Law, The Law of American Indians, has been reappointed as tribal associate justice by the Nottawaseppi Huron Band of the Potawatomi tribe and will serve a six-year term on the tribe’s Supreme Court.

Elizabeth Garrett, president-elect of Cornell University, will become the first woman to lead the university when she takes office in July.

On January 4, Michael D. Green of Wake Forest University School of Law received the 2015 William L. Prosser Award from the Association of American Law Schools Torts & Compensation Systems Section. Professor Green, who served as Co-Reporter for Restatement Third, Torts: Liability for Physical and Emotional Harm, was recognized for his outstanding contribution to tort-law scholarship, service, and teaching.

On December 1, Allyson N. Ho of Morgan, Lewis & Bockius represented the respondent in Perez v. Mortgage Bankers Association before the U.S. Supreme Court.

Ian C. Holloway, dean of the University of Calgary, Faculty of Law, in Alberta, Canada, was appointed as a member of the Security Intelligence Review Committee by Prime Minister Stephen Harper on January 30.

Kirk C. Jenkins, a partner at Sedgwick LLP, launched the blog “Illinois Supreme Court Review,” which analyzes the decisionmaking of the Illinois Supreme Court to help Callies readers better understand the civil appellate practice in civil litigation. SPRING 2015 | 15

On January 3, Herma Hill Kay of the University of California, David W. Rivkin of Debevoise & Plimpton was elected Berkeley School of Law, received the President of the International Bar Association. His two-year Lifetime Achievement Award of the Association of American term as IBA President concludes on December 31, 2016. Law Schools Section on Women in Legal Education. Judge Lee H. Rosenthal of the U.S. District Court for the Carolyn B. Lamm, a partner at White & Case, led a team in Southern District of Texas has been named to the Baylor College assisting the government of the Republic of the Philippines in of Medicine Board of Trustees. its third consecutive international arbitration win in a dispute over the international airport terminal in Manila that has Charles W. Schwartz, a partner at Skadden, Arps, Slate, lasted a decade. Meagher & Flom LLP, was elected a Fellow of the American College of Trial Lawyers. Derek P. Langhauser was named interim president of the Maine Community College System and began his term Richard L. Thies of Webber & Thies, P.C., in Urbana, IL, was on February 16. He has been the system’s general counsel presented the “Lincoln the Lawyer” Award by The Abraham for 20 years. Lincoln Association. This award recognizes individuals who reflect the character and ideals of Abraham Lincoln in their Douglas Laycock of the University of Virginia School of Law legal careers. recently argued and won a religious liberty case, Holt v. Hobbs, 135 S. Ct. 853 (2015), in the U.S. Supreme Court, which ruled unanimously in favor of a Muslim inmate’s right to grow a beard.

Judge Benjamin Lerner of the Pennsylvania Court of Common Pleas, Philadelphia County, an Adviser to the Institute’s Model Penal Code: Sentencing project, received the Philadelphia Bar Association’s Justice William J. Brennan Jr. Distinguished Jurist Award on December 9.

On December 8, Margaret H. Marshall, Senior Counsel at Choate, Hall & Stewart and former Chief Justice of the Massachusetts Supreme Judicial Court, received the 2014 We Are Boston Leadership Award from Boston Mayor Martin J. Walsh, for her “leadership by example as a champion for access to justice and a transparent and independent judiciary.”

Pedro Julio Martinez-Fraga and C. Ryan Reetz, partners at Bryan Cave LLP, have coauthored Public Purpose in Robert A. Stuart, Jr., ALA President, presenting “Lincoln the Lawyer” International Law: Rethinking Regulatory Sovereignty in the Award to Richard L. Thies Global Era (Cambridge Univ. Press 2015).

Margaret P. Mason, a partner at LeClairRyan’s New Haven Former ALI President Michael Traynor served as a office, has received the Connecticut Bar Association’s Edward F. panelist for a workshop in September 2014, including some Hennessey Professionalism Award. 50 scientists, journalists, and lawyers, on the ethics of communicating scientific uncertainty, funded by the National On November 24, President bestowed the Science Foundation and the Environmental Law Institute. In Presidential Medal of Freedom, the nation’s highest civilian February, he published his article “Communicating Scientific honor, on Abner J. Mikva, whose public career included service Uncertainty: A Lawyer’s Perspective,” 45 ELR 10159 (2015) in as a state lawmaker, member of Congress, chief judge of the U.S. the Environmental Law Reporter. Court of Appeals for the District of Columbia Circuit, and White House counsel. In cases argued by Charles W. Wirken of Gust Rosenfeld PLC, the Arizona Supreme Court has twice recently adopted the Owen Olpin, retired partner of O’Melveny & Myers LLP, and approach of the Restatement Third, Property (Mortgages), Michael Traynor, former ALI President and senior counsel to equitable subrogation in different contexts. The cases are at Cobalt LLP, were recently named Honorary Life Trustees Sourcecorp, Inc. v. Norcutt, 229 Ariz. 270 (2012), and Weitz Co. of Earthjustice after being recognized for their distinguished L.L.C. v. Heth, 235 Ariz. 405 (2014). service to Earthjustice and to the environment.

Richard Pildes of New York University School of Law appeared before the Supreme Court on November 12 to argue on behalf of the appellants in the voting-rights case of Alabama Democratic Conference v. Alabama. 16 | THE ALI REPORTER Los Angeles Member Reception

Our host, Ronald L. Olson of Munger, Tolles & Olson A panel of judges offered remarks. From left, Judge William A. Fletcher, U.S. Court of (left), who is serving as a cochair of the 1990 Life Member Appeals for the Ninth Circuit; Justice Goodwin Liu, California Supreme Court; and Class Gift campaign, with ALI President Roberta Cooper Presiding Judge Carolyn B. Kuhl, Superior Court of California, County of Los Angeles Ramo and ALI Director Richard L. Revesz

Judge Paul J. Watford, U.S. Alexandra Natapoff, Loyola Law Susan F. French, Professor ALI Deputy Director Court of Appeals for the Ninth School, and Justice Goodwin Liu, of Law Emerita, UCLA Stephanie A. Middleton Circuit, and Fred A. Rowley, Jr., California Supreme Court School of Law with Professor Alexander M. partner, Munger, Tolles & Olson Capron, University of Southern California Gould School of Law

Thank You! The American Law Institute recently held members receptions especially partners Fred A. Rowley, Jr., and Ronald L. Olson, in Chicago, Los Angeles, and San Francisco to give our members and all of our speakers—Judge William A. Fletcher of the an opportunity to connect with other members in their regions, U.S. Court of Appeals for the Ninth Circuit, Presiding Judge to meet ALI President Roberta Cooper Ramo, ALI Director Carolyn B. Kuhl of the Superior Court of California, County of Richard L. Revesz, and Deputy Director Stephanie A. Middleton, Los Angeles, and Justice Goodwin Liu of the California and to hear remarks from esteemed judges who have been Supreme Court. involved with ALI’s work for many years. Thanks to everyone at Sidley Austin in Chicago, and especially These receptions are terrific events that combine socializing, partner Teresa Wilton Harmon, for hosting our reception networking, and good food and drink with a substantive there in November, and to our speaker, Chief Judge Diane P. discussion about ALI’s work and the exciting new projects that Wood of the U.S. Court of Appeals for the Seventh Circuit. are launching this year. Additionally, thanks to everyone at DLA Piper in San Francisco, The Institute wishes to thank everyone at Munger, Tolles & especially partner Cedric C. Chao and our speaker, Justice Olson who helped to make the Los Angeles event such a success, Mariano-Florentino Cuéllar of the California Supreme Court. SPRING 2015 | 17

THE PRESIDENT’S LETTER CONTINUED FROM PAGE 1 legal solutions in other formats from time to time. The work, of the District of Columbia Circuit; from William Hubbard, responsibility, and power of an individual ALI member lie President of the American Bar Association and member of the in becoming involved in our projects. The MCGs are open to Council of the ALI; and from the first of this year’s ALI Young any member. And most importantly, members can come to Scholars Award winners, Professor Elizabeth Burch of the the Annual Meeting to participate in the draft discussions University of Georgia, whose important civil procedure work and the votes. You are each a part of the bicameral scheme set focuses on the financing of class actions. And Director Emeritus up in 1923. Nothing is an official work of the ALI until both Lance Liebman will present an award to Robert Mundheim, our the Council and the membership at the Annual Meeting have longtime Council member, leader of the governance changes for approved a draft. While we strive mightily to make sure that all our Council, and superb lawyer and person. interested sides in a subject are involved as Advisers to a project, the input from the floor of our Meeting of both those who are On Tuesday, May 19, we will hear from FBI Director James experts and those who are not is deeply important. It is difficult Comey. And Larry Sonsini, who has been at the epicenter of for most members to read all of the project drafts on the agenda the evolution of Silicon Valley, will speak at the lunch honoring in depth. However, we hope that you will speak up in the areas in new Life and 50-Year members. That evening we will have the which you have expertise, but also read at least one or two of the honor of hearing a discussion between former Senators Olympia drafts for projects that are in areas outside your regular work Snowe and George Mitchell about civility, partisanship and or scholarship. Remember that the Restatements are often the bipartisanship, and the implications for our democracy from the most important resource for those judges and lawyers who are current situation. not deeply schooled in a particular area. The informed, balanced I have always felt like the luckiest possible lawyer at the ALI view in our work is what courts and lawyers in practice rely on Annual Meeting. The quality of the discussion, the speakers, in fulfilling their parts in the justice system. and those I meet never fails to make me vow to try personal The upcoming Annual Meeting is notable, not only because improvements on all counts. of the speakers (more about that later), but because we have Last week, I drove through northern New Mexico, where an agenda packed with important substantive matters; some the bright blue sky and the snow-covered landscape that subjects are for preliminary discussion, but six are coming to encompasses the mountains, mesas, and valleys let you see you for votes. Tentative Drafts up for approval include parts of natural beauty without horizon and somehow concentrate the Restatement of the Law Fourth, The Foreign Relations Law of mind. The ALI discussions also inspire and focus our minds on the United States – Sovereign Immunity; Restatement of the the work of the law and the responsibility of being a member of Law, The U.S. Law of International Commercial Arbitration; The American Law Institute. Principles of the Law, Government Ethics; Restatement of the Law, The Law of American Indians; Restatement of the Law, Happy spring. Hope to see you each and all in May. Liability Insurance; and Restatement of the Law Third, Torts: Roberta Intentional Torts to Persons. There will be more discussion, with no vote, of the Model Penal Code: Sexual Assault and Roberta Cooper Ramo Related Offenses. President Several years ago we began the practice of bringing new projects to the Annual Meeting for discussion with the Reporters before drafts are brought to the floor. This has proven to be very helpful P.S. If you are not in the habit of visiting the Institute’s website— to the Reporters and the Advisers as they begin framing and www.ali.org—start today. The website is really new in its format drafting work in new areas. This year, those discussions include and changing information. If you looked today, you would see a the new project on Sexual and Gender-Based Misconduct on link to a fascinating discussion between our Director Richard Campus: Procedural Frameworks and Analysis; Restatement Revesz and Professor Laurence Tribe on environmental of the Law of Copyright; and Principles of the Law, Compliance, regulation in the U.S. House of Representatives; a wonderful Enforcement and Risk Management for Corporations, article about Judge Pat Wald, Sara Ehrman, and Jodie Nonprofits, and Other Organizations. Bernstein; thoughts on judging from Judges Paul Friedman and Ketanji Brown Jackson; and a fascinating piece about our We also look forward to a number of stimulating and important member David Seipp’s lecture at Oxford based on the 1399 Year presentations. On Monday, May 18, we will hear from a judge Book case, titled “When Lawyers Lie.” All show the breadth and who is new to the ALI and to the bench, Judge Sri Srinivasan depth of our members. 18 | THE ALI REPORTER

Harvey Goldschmid, Reporter for Principles of Corporate Governance and former SEC Commissioner, Dies at 74

Harvey J. Goldschmid, a corporate prohibiting brokers from making law expert and Columbia Law School political contributions in order to win professor who served as a Reporter for municipal bond business. The American Law Institute’s Principles of Corporate Governance project and Just before Professor Goldschmid was went on to work for the Securities confirmed as a commissioner, Congress and Exchange Commission where he passed the Sarbanes-Oxley Act, a law converted some of his law-reform ideas he had helped draft. The law overhauled into enforceable law, died on February 12 corporate financial reporting. in Manhattan. He was 74. In the late 1990s, in response to the rise A member of the ALI for nearly 40 years, of the Internet and its effect on securities Professor Goldschmid was appointed markets, Professor Goldschmid was to the SEC in 2002, served through the architect of Regulation FD—for 2005, and was credited with helping to fair disclosure—a rule that prohibits formulate the agency’s response to a companies from disclosing material information only to select clients. ABA amended Model Rule 7.6 to prohibit series of corporate accounting scandals, lawyers from accepting “a government including the collapse of Enron, Inc. In the wake of the massive financial legal engagement” if they made political and WorldCom. crisis that began in 2008, Professor contributions for the purpose of being Prior to his appointment as an SEC Goldschmid pressed for the creation of considered for legal work. commissioner, Professor Goldschmid a stand-alone systemic risk agency that would have oversight of the financial As an ALI member, Professor was general counsel of the SEC from Goldschmid also served as an Adviser 1998 to 1999, and served as special sector. The result was the Systemic Risk Council, a private-sector, nonpartisan on Restatement of the Law, Charitable senior adviser to then-Chairman Arthur Nonprofit Organizations. Levitt, Jr., in 2000. body of former government officials and financial and legal experts who join to A graduate of Columbia College and In his various roles at the SEC, Professor address “regulatory and structural issues Columbia Law School, Professor Goldschmid at times succeeded in relating to systemic risk in the United Goldschmid joined the Columbia Law implementing the principles of law States.” In 2012, Professor Goldschmid faculty in 1970. that he had drafted in his role as an was named a member of the Systemic ALI Reporter. Risk Council. He is survived by his wife, Mary, and their three sons, Charles, Paul, and As SEC general counsel, he provided the Professor Goldschmid also worked on Joseph, all of whom followed their legal underpinning for two important lawyer-ethics issues. He served on an father’s path and graduated from new rules that barred publicly traded American Bar Association task force that Columbia Law School. corporations from selectively disclosing recommended new limits on political market-moving information and contributions from lawyers. In 2000, the

In Memoriam

ELECTED MEMBERS V. Thomas Fryman, Jr., Lexington, KY; Charles W. Sprague, Brookfield, WI;Helmut Steinberger, Leimen, Germany

LIFE MEMEBERS Richard J. Archer, Petaluma, CA; George W. Bermant, Denver, CO; Murray C. Goldman, Philadelphia, PA; Harvey J. Goldschmid, New York, NY; Robert B. Kent, Lexington, MA; Leonard M. Leiman, New York, NY; Philip H. Magner, Jr., Buffalo, NY;Decatur H. Miller, Baltimore, MD; Thomas A. Quintrell, Gates Mills, OH; Herbert F. Schwartz, New York, NY; Charles R. Simpson, Sarasota, FL; Roy L. Steinheimer, Jr., Lexington, VA SPRING 2015 | 19

New Members Elected

On January 16, the Council elected the following 26 persons:

Sara C. Bronin, Hartford, CT Laura Elizabeth Little, Philadelphia, PA Beatrice A. Butchko, Miami, FL Lydia Pallas Loren, Portland, OR James A. Fanto, Brooklyn, NY Tanya D. Marsh, Winston-Salem, NC Kimberly Kessler Ferzan, Charlottesville, VA Troy A. McKenzie, New York, NY Daniel J. Gervais, Nashville, TN Thomas W. Merrill, New York, NY Richard Blair Goetz, Los Angeles, CA Christopher M. Newman, Arlington, VA Seth Grossman, San Francisco, CA R. Anthony Reese, Irvine, CA Richard Blum Herzog, Jr., Atlanta, GA Sandra G. Rodriguez, Houston, TX Claire A. Hill, Minneapolis, MN Deborah Tuerkheimer, Chicago, IL Daniel B. Kelly, Notre Dame, IN Molly S. Van Houweling, Berkeley, CA Hilary K. Krane, Beaverton, OR Richard B. Walker, Newton, KS Brian A. Lee, Brooklyn, NY Christopher A. Whytock, Irvine, CA Gail A. Lione, Washington, DC Jonathan J. Wroblewski, Washington, DC

Charitable Nonprofit Organizations

From left, Daniel I. Halperin of Harvard Law School; Douglas M. ALI Director Richard L. Revesz and the Reporters on the Restatement Mancino of Seyfarth Shaw; and Nancy A. McLaughlin of the University of the Law, Charitable Nonprofit Organizations, Marion R. Fremont- of Utah, S.J. Quinney College of Law Smith of , Kennedy School of Government, and Jill R. Horwitz of the University of California, Los Angeles School of Law

LEFT One of the project Advisers: Bonnie Brier, Senior Vice President, General Counsel, and Secretary of New York University

RIGHT Two members of the project’s Members Consultative Group: Guy Miller Struve of Davis Polk & Wardwell (right) and Edward A. Morgan of Scarsdale, NY (ISSN 0164-5757) THE AMERICAN LAW INSTITUTE 4025 CHESTNUT STREET NONPROFIT ORG PHILADELPHIA, PA 19104-3099 U.S. POSTAGE PAID ALI

2014 Proceedings Now Available The 2014 Proceedings, containing the complete transcript of the Institute’s 91st Annual Meeting, are now available. The 420-page volume (Order Code 1PROC14) may be obtained from the Institute’s Customer Service department at 800-253-6397, or it can be ordered online for $85 (ALI members) or $85 plus shipping and handling (nonmembers). The volume includes discussions of:

• Model Penal Code: Sentencing; • Restatement Third, The Law of American Indians; • Model Penal Code: Sexual Assault and Related Offenses; • Restatement Third, Torts: Intentional Torts to Persons; • Principles of the Law of Liability Insurance; • Restatement Third, Torts: Liability for • Restatement Third, Employment Law; Economic Harm; and

• Restatement Fourth, The Foreign Relations • Speeches delivered during the Meeting, Law of the United States, Jurisdiction; including remarks by outgoing Director Lance Liebman.

The Proceedings for previous years are also available for purchase.

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