THE QUARTERLY NEWSLETTER OF THE VOLUME 37 NUMBER 3 SUMMER 2015

THE PRESIDENT’S LETTER Annual Meeting Recap Our Annual Meeting in May marked the completion of the first year of our sixth Director The American Law Institute’s 92nd Annual Meeting took place May 18-20, . With his leadership, ably 2015, in Washington, DC. The agenda consisted of five projects with drafts up abetted by our Deputy Director Stephanie for approval and three projects with drafts for discussion only—the Foreign Middleton, this has been an extraordinarily Relations project presented drafts both for approval and discussion. The interesting and productive year. We are Meeting also featured distinguished speakers on each of the three days, as well now working on 20 projects approved by as the Distinguished Service and Young Scholars award presentations. the Council (probably the maximum we can See inside this issue for complete details and images from the handle); we approved partial drafts of five Annual Meeting. projects at the Annual Meeting; we are at last being cited by name under a change in The Bluebook rules; and during this ALI year, we have had the enthusiastic acceptance by 158 new members nominated and elected using our new membership process. Another important milestone will be the introduction of the Restatement of Employment Law, which will be in print before the end of the summer.

Our website renovation is now complete, and members have been sent e-mails enabling them to set their own passwords for entering the ALI President Roberta Cooper Ramo, Treasurer Wallace B. Jefferson, Secretary Paul L. private side of our online presence. If you have Friedman, Membership Committee Chair Yvonne Gonzalez Rogers, and Nominating not been regularly going to the website, it is Committee Chair Diane P. Wood at the opening session of the 92nd Annual Meeting worth doing so now, as it is a much livelier and more up-to-date source of information about and for our members. We have notified you, using other means, about the availability online of the important presentations at our Annual Council Elections Meeting by FBI Director James Comey; former At the opening session of the Annual Meeting, Nominating Committee Chair Chief Justice and ALI Executive Diane P. Wood presented four nominees for election to Council—Ivan K. Fong, Committee member Margie Marshall; Senators Senior Vice President of Legal Affairs and General Counsel at 3M; George Mitchell and Olympia Snowe; ABA Steven S. Gensler, Associate Dean of Research and Scholarship and the President William Hubbard; Larry Sonsini, Welcome D. and W. DeVier Pierson Professor of Law at the University of Chairman of Wilson Sonsini Goodrich & Rosati; Oklahoma College of Law; Samuel Issacharoff, Bonnie and Richard Reiss and D.C. Circuit Judge Sri Srinivasan. Even for Professor of Constitutional Law at New York University School of Law; those of us lucky enough to have heard each of and Kathleen M. O’Sullivan, partner and co-chair of the appellate practice these important talks, it is terrific to be able to at Perkins Coie LLP. The membership voted to approve all of them. Short revisit them and share them with colleagues. biographies of all ALI Council members can be found on the ALI website. What cannot be reproduced if you are not at the Annual Meeting are the fascinating debates and conversations about our projects and the discussion leading to votes. Each of you has a governance role in voting to approve or amend the drafts presented at the Meeting. In our best tradition, discussion of even the most difficult topics—from the Model Penal Code Sexual Assault provisions (presented at the May 2015 Ivan K. Fong, Steven S. Gensler, Samuel Issacharoff, and Kathleen O’Sullivan Meeting for discussion only) to a serious debate

continued on page 22 2 THE ALI REPORTER

EDITOR Marianne M. Walker ALI Launches New Website 215-243-1627 [email protected] We are pleased to announce the launch of our new website.

The ALI Reporter (ISSN 0164-5757) is published quarterly by The American Law Institute, 4025 Chestnut Street, Philadelphia, PA 19104-3099. Nonprofit U.S. postage paid at Langhorne, PA.

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

Upcoming Meetings & Events For more information, visit www.ali.org

SEPTEMBER 2015 September 10 (JOINT) Restatement of the Law Third, Torts: Liability for Economic Harm Philadelphia September 11 (JOINT) Principles of the Law, Election Law Philadelphia September 17 (Advisers) September 18 (MCG) Restatement of the Law, Charitable Nonprofit Organizations Philadelphia September 24 (MCG) September 25 (Advisers) Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations New York ALI is excited to announce the launch of our newly designed website, still OCTOBER 2015 located at the web address www.ali.org. The site’s homepage will continue October 1 (Advisers) to feature news about the Institute and its members, and we’ll continue to October 2 (MCG) offer the same access to our projects, publications, and member-only areas Restatement of the Law Fourth, Property while providing a site with enhanced features that is easier to navigate and Philadelphia more user friendly. October 8 (JOINT) Some new site highlights include: Model Penal Code: Sexual Assault and Related Offenses • An enhanced Member Directory where members may add and edit New York biographies and share contact information with other members October 8 (JOINT) Restatement of the Law Fourth, Foreign • An improved search function Relations Law: Jurisdiction New York • A reorganized and updated Publications section, allowing site visitors to easily purchase our work October 9 (JOINT) Restatement of the Law Fourth, Foreign • Expanded Meetings and Projects sections with members-only areas, Relations Law: Treaties New York customized to Members’ project roles

MAY 2016 May 16 - 18 2016 ANNUAL MEETING VISIT THE NEW SITE ONLINE NOW. Washington, DC SUMMER 2015 3

THE DIRECTOR’S LETTER BY RICHARD L. REVESZ Clarifying the Nature of the ALI’s Work The American Law Institute appropriately describes itself as Finally, the inquiry involved in fashioning Restatement black “the leading independent organization in the letter rules contains four principal elements. I’ll quote from the producing scholarly work to clarify, modernize, and otherwise Style Manual (p. 5) because the language was carefully vetted improve the law.” From time to time, it is important for the ALI, by the Council: as for all organizations, to spend time and energy clarifying its own mission. Over the past year, we have devoted significant The first is to ascertain the nature of the majority effort to this important endeavor. rule. If most courts faced with an issue have resolved it in a particular way, that is obviously important to Because the document that describes the mission of the ALI the inquiry. The second step is to ascertain trends in the most sustained way is our Style Manual (formally in the law. If 30 jurisdictions have gone one way, “Capturing the Voice of The American Law Institute: A but the 20 jurisdictions to look at the issue most Handbook for ALI Reporters and Those Who Review Their recently went the other way, or refined their prior Work”), our clarifying effort took the form of revisions of that adherence to the majority rule, that is obviously Manual. It’s a wonderful document, which you might want important as well. Perhaps the majority rule is now to download (www.ali.org/publications/style-manual). The widely regarded as outmoded or undesirable. If revision process was undertaken by a Committee on Institute Restatements were not to pay attention to trends, Style, which was very ably chaired by Professor Mary Kay Kane. the ALI would be a roadblock to change, rather The Committee’s recommendations were then adopted by the than a “law reform” organization. A third step is Council in January. to determine what specific rule fits best with the broader body of law and therefore leads to more I will focus on three highlights. First, the revised Style coherence in the law. And the fourth step is to Manual draws a clear distinction among our major types ascertain the relative desirability of competing rules. of works—Restatements, Model or Uniform Codes, and Here social-science evidence and empirical analysis Principles projects—based both on the primary audience for can be helpful. our guidance and the form in which such guidance is provided. “Restatements are primarily addressed to courts. They aim at One of the misconceptions that I’ve most encountered during clear formulations of common law and its statutory elements or my first year as Director concerned the view, sometimes variations.” Codes, such as our enormously influential Uniform expressed in meetings of our project Advisers, that Commercial Code, which we do in partnership with the Uniform Restatements needed to follow the majority rule. The preceding Law Commission, and Model Penal Code “are addressed to paragraph provides a clear answer to that question. But the legislatures, with a view toward legislative enactment. They Style Manual also cautions us (p. 6) that “if a Restatement are written in prescriptive statutory language.” Principles “are declines to follow the majority rule, it should say so explicitly primarily addressed to legislatures, administrative agencies, and explain why.” Together with Stephanie Middleton, our or private actors. They can, however, be addressed to courts spectacular Deputy Director and my partner in guiding the when an area is so new that there is little established law.” substance of each of our projects, I always remind Reporters Style Manual p. 4. Principles will often take the form of best of the importance of this command. By being transparent, we practices for either private institutions (e.g., our just launched facilitate the opportunity for vigorous debate on the content of Principles of Compliance) or public institutions (e.g., our also our rules—which is a hallmark of the ALI and what makes us just launched Principles of Police Investigations). both distinctive and influential.

The next two highlights concern the nature of Restatements: the On the nature of legal change, the analogy between interpretation of what a Restatement black letter rule is, and the a Restatement and the common law is very helpful inquiry that should be undertaken in formulating such a rule. (Style Manual, p. 6): On the former question, a Restatement aspires to do exactly the same work as a common law judge. In the words of my legendary “Like a Restatement, the common law is not static. predecessor (Style Manual, p. 6), Professor Herbert Wechsler, But for both a Restatement and the common law the which are quoted on the wall of the conference room in the ALI change is accretional. Wild swings are inconsistent headquarters in Philadelphia: “We should feel obliged in our with the work of both a common-law judge and a deliberations to give weight to all of the considerations that the Restatement. And while views of which competing courts, under a proper view of the judicial function, deem it right rules lead to more desirable outcomes should to weigh in theirs.” play a role in both inquiries, the choices generally are constrained by the need to find support in But, as the Style Manual indicates (p. 6), “what a Restatement can sources of law.” do that a busy common-law judge, however distinguished, cannot is engage the best minds in the profession over an extended So, with this clarification of the nature of our own work under period of time, with access to extensive research, testing rules our belts, the ALI’s important work process clarifying the law against disparate fact patterns in many jurisdictions.” can continue to move forward. 4 THE ALI REPORTER Actions Taken at the 92nd Annual Meeting

MONDAY, MAY 19 TUESDAY, MAY 20

Restatement of the Law Fourth, The Foreign Relations Law Model Penal Code: Sexual Assault and Related Offenses of the United States, Sovereign Immunity and Treaties On the agenda was Discussion Draft No. 2, which included the Sovereign Immunity, Tentative Draft No. 1, Chapter 5, §§ 451, following Sections of the draft: 453, 458, and 460 (Immunity of States from Jurisdiction) was • Substantive Material: I. Proposed Sections 213.0 presented for approval. Treaties, Discussion Draft, Chapter 2, to 213.11; II. General Commentary; III. Statutory §§ 101-106 (Status of Treaties in United States Law) was Commentary (Sections 213.0-213.9) introduced for discussion only. After the Reporters fielded • Evidentiary Material: I. Proposed Section 213.10; comments on the various Sections for approval, the membership II. Commentary. voted to approve Sovereign Immunity, Chapter 5, §§ 451, 453, 458, and 460 subject to the discussion at the Annual Meeting The membership discussed and debated the Sections, including and to the usual editorial prerogative. As expected, no vote was the topics of sexual contact, force and consent, and offenses taken on Treaties. where the victim is intoxicated. The Reporters fielded numerous questions and comments, but, as expected, no vote was taken on the draft.

Judge Lee H. Rosenthal leads the discussion of Restatement Fourth, The Foreign Relations Law of the United States, with Coordinating ALI President Roberta Cooper Ramo presides in a session on the Reporters Sarah H. Cleveland and Paul B. Stephan and Reporters Curtis Discussion Draft in the Sexual Assault project with Reporter Stephen J. A. Bradley, Edward T. Swaine, and David P. Stewart. Schulhofer and Associate Reporter Erin E. Murphy.

Restatement of the Law, The U.S. Law of International Principles of the Law, Government Ethics Commercial Arbitration On the agenda for approval was Tentative Draft No. 1, Chapter 4, Presented for membership approval was Tentative Draft No. 4, The Election-Related Activities of Public Servants. The which includes Chapter 1, General Provisions (§§ 1-1(r) membership discussed the Principles’ defined limits on the and 1-1(ff)) and Chapter 2, Enforcement of the Arbitration ability of government officers and employees to use public Agreement. The Reporters received comments from the resources for their personal or partisan benefit in elections. membership, and subject to the discussion at the Meeting and The membership voted to approve the Chapter subject to to the usual editorial prerogative, the membership voted to the discussion at the Meeting, which included a suggestion approve all Sections presented. that the Reporters give due consideration to the issue of the off-duty activities of public employees, and to the usual editorial prerogative.

ALI Director Richard L. Revesz leads the discussion of Tentative Draft No. 4 for Restatement of the Law, The U.S. Law of International Commercial Arbitration, with Reporter George A. Bermann and Associate Reporters Jack J. Coe, Jr., Christopher R. Drahozal, and Professor Douglas Laycock leads the discussion of Principles of the Catherine A. Rogers. Law, Government Ethics, Tentative Draft No. 1, with Reporter Richard Briffault and Associate Reporter Richard W. Painter. SUMMER 2015 5

WEDNESDAY, MAY 20

Restatement of the Law, The Law of American Indians Restatement of the Law, Liability Insurance

The Reporters presented Tentative Draft No. 1, Chapter 1, Professor Tom Baker presented Chapter 1, Basic Liability Federal–Tribal Relations. The membership had the opportunity Insurance Contract Rules, and Chapter 2, Management of to comment on all 10 Sections of Chapter 1, including General Potentially Insured Liability Claims, for discussion only by the Terms, Federal–Tribal Relationship, American Indian Treaty membership. Members commented on many areas of the draft, Law, Federal Legislation, and Breach-of-Trust Claims. including the change from a Principles project to a Restatement Subject to the discussion at the Meeting and to the usual project, the definitions Section, the topics of waiver and editorial prerogative, the membership voted to approve estoppel, and the duty to defend. As expected, no vote was §§ 1-9 of the draft. taken on the draft.

ALI Council member Gary L. Sasso presides over the discussion of the Restatement of the Law, Liability Insurance, Discussion Draft, with Reporter Tom Baker. Ninth Circuit Judge Mary M. Schroeder (far left), an ALI Council member, leads the discussion of the American Indian Law Tentative Draft No. 1 with Reporter Matthew L.M. Fletcher and Associate Restatement of the Law Third, Torts: Intentional Reporters Wenona T. Singel and Kaighn Smith, Jr. Torts to Persons

The Reporters presented for approval Chapter 1, Definitions of Intentional Torts to Persons; Transferred Intent (§§ 101- 105 and 110). For discussion only were Chapter 1 § 101(d), and Comments f, g; § 104(b), and Comment d; and § 105(c), and Comment j. Professor Simons addressed the motions by Professor Richard W. Wright, and on membership vote the motions were defeated. A motion by Guy Miller Struve to amend § 103 by striking the language in subsection (b), defining a contact as offensive by the standards of someone with an “unusually sensitive sense of personal dignity,” initially received a tied vote from members on the ballroom floor. With the Sexual Assault project Adviser Professor Alan B. Morrison addition of votes from the Reporters, the motion was defeated. Jennifer G. Long of AEquitas comments on a draft for the After all motions were addressed, the members voted to approve comments on the draft. Foreign Relations Law project. the draft, subject to the discussion at the Meeting and to the usual editorial prerogative.

The team leading the Restatement of the Law Third, A comment on the American Guy Miller Struve rises to Torts: Intentional Torts to Indian Law draft from argue a motion. ALI Treasurer Wallace B. Persons—Reporter Kenneth W. ALI Council member Jefferson leads the discussion of Simons and Associate Larry S. Stewart Tentative Draft No. 1. Reporter Ellen S. Pryor 6 THE ALI REPORTER New Project Previews Members had the opportunity to hear from Reporters on three new ALI will be the two parts of the project — internal projects—Restatement of the Law, Copyright; Principles of the Law, control (governance, risk management, and Compliance, Enforcement, and Risk Management for Corporations, compliance) and external control (enforcement, Nonprofits, and Other Organizations; and the Project on Sexual and Gender- both criminal and regulatory). Based Misconduct on Campus: Procedural Frameworks and Analysis. Professor Miller will oversee the compliance Work has just begun on each of these projects, and the first project meetings portion of the project, and stated that the project for each are scheduled for Fall 2015. Members may sign up to join the will likely include the following topics, among Members Consultative Group on these and any other projects by visiting others: attorney–client and work-product the ALI website. privileges; enterprise compliance; vendor and customer due diligence; liability of directors, business executives, and others; and successor liability. Professor Hill, who will oversee the risk- management portion of the project, discussed current challenges in risk management. The first project meeting is scheduled for September 2015.

Reporter Vicki C. Jackson introduced the Project on Sexual and Gender-Based Misconduct on Campus: Procedural Frameworks and Analysis. Professor Jackson discussed the procedural issues that are likely to be the subject of discussion during the project. These include reporting procedures, investigation, interim measures or accommodations during Copyright Reporter Christopher Jon Sprigman responds to member comments with investigation, formal hearings, confidentiality and ALI Deputy Director Stephanie Middleton. information sharing, the relationship between the universities and the local police and local Restatement of the Law, Copyright, was presented by Reporter Christopher criminal justice system, training for investigators Jon Sprigman, who was joined by Associate Reporters Lydia Pallas Loren and and adjudicators, admissible evidence, methods R. Anthony Reese. Professor Sprigman said the project could be enormously for taking testimony and examining witnesses, influential both in shaping law that we have and perhaps providing guideposts the role of lawyers, recordkeeping, appeals, and for the reform law that Congress might enact in the long term. The project’s sanctions and remedies, among others. The first mission, he said, “is not to be another combatant” on copyright law, but rather project meeting is scheduled for November 2015. to coalesce the courts’ interpretation of the law into a coherent Restatement and to clarify the law when it may be unclear or inconsistent.

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

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

JOIN THE MEMBERS CONSULTATIVE GROUP ON THESE AND ANY OTHER PROJECTS BY VISITING THE ALI WEBSITE AT WWW.ALI.ORG/PROJECTS. SUMMER 2015 7 Speakers at the Annual Meeting On Monday, the first speaker at the Annual Meeting, Judge Sri Srinivasan of the U.S. Court of Appeals, District of Columbia Circuit, was introduced by Judge Paul L. Friedman of the U.S. District Court for the District of Columbia. Judge Srinivasan’s speech, “The Transition from Advocacy to Adjudication,” addressed his path to ALI membership as well as his path from appellate advocate to appellate judge. He discussed the Judges Sri Srinivasan and FBI Director James B. Comey and former evolution from being a partial advocate in support Paul L. Friedman FBI and CIA Director William H. Webster of a client to being an impartial judge, as well as the importance of consensus.

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

During a break from the project sessions, the membership heard from James B. Comey, Jr., The Director of the FBI who was introduced by former FBI and CIA Director Judge William Webster. Director Comey spoke to a standing- room-only crowd about “one of the true inflection points in human history”—the digital age. He ALI President Roberta Cooper Ramo with former Senators George J. Mitchell and discussed how the FBI is approaching the Olympia J. Snowe challenge of protecting people now that threats manifest at the speed of light. But the good news, he reported, is that the United States retains the greatest capital markets in the world, and that if we can maintain a focus on building At the Members Luncheon Honoring New Life long-term value, “we will continue to lead the world.” Members (Class of 1990) and New 50-Year Members (Class of 1965), Larry W. Sonsini, ALI President Roberta Cooper Ramo moderated a panel of two former the Chairman of Wilson Sonsini Goodrich & Senators, George J. Mitchell and Olympia J. Snowe, both from Maine. Rosati, and a member of the ALI Class of 1990, Roberta led a spirited discussion about the current state of U.S. politics offered remarks on “The Corporate Governance and the law. President Ramo also spoke to the Senators about their own Landscape.” He described a trend of moving experiences, including Senator Mitchell’s time as Senate Majority Leader and away from “director-centric” governance toward Senator Snowe’s strong sense of bipartisanship. “shareholder-centric” governance. He warned of the “politicizing of the boardroom” and a rise in The Members Luncheon on the final day of the Annual Meeting shareholder “activism.” The result, he warned, is featured speaker Margaret H. Marshall, the former Chief Justice of the a shift in priorities from long-term to short-term. Massachusetts Supreme Judicial Court. In her speech “Reflections: An continued on page 20

WATCH FULL VIDEOS OF OUR PRESENTERS ON VIMEO AT WWW.VIMEOPRO.COM/AMERICANLAWINSTITUTE/THE-92ND-ALI-ANNUAL-MEETING. 8 THE ALI REPORTER Welcome to the Institute’s Newest Members ALI welcomed its newest members at two special events at this year’s Annual Meeting. New members gathered at a dinner the evening before the Annual Meeting kicked off, as well as at a lunch on the first day. Photos of the events can be found on these two pages.

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

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

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

New members elected in October 2014, January 2015, and April 2015 SUMMER 2015 9 Distinguished Service Award The Distinguished Service Award was presented to Robert H. Mundheim by ALI Director Emeritus in honor of Mr. Mundheim’s tremendous devotion of time and effort to the Institute. In addition to serving on ALI’s Council for 27 years, he also served on five ALI committees, including as Chair of the Special Committee on Governance.

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

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

In accepting the award, Mr. Mundheim reflected on his 45 years as an ALI member and the “intellectual fun of the Institute” as members participate in shaping the law. He TOP also remarked on the previous award recipients, New members Amie Martinez, a shareholder at Anderson, Creager & Wittstruck, and saying he is “enormously proud and grateful” to Theresa Amato, Executive Director of Citizen Works, with Council member Carolyn be included in such a prestigious group. Kuhl, Presiding Judge of the Los Angeles Superior Court

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

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

BOTTOM New member Michael E. Tolbert, a founding partner at the firm Tolbert & Tolbert, Council member Judge Elizabeth S. Stong of the U.S. Bankruptcy Court for the Eastern District of New York, and new member Brent L. Henry, Vice President and General ALI Director Emeritus Lance Liebman, Robert H. Counsel of Partners HealthCare System Mundheim, and ALI President Roberta Cooper Ramo 10 THE ALI REPORTER

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

You have been a federal criminal prosecutor in Chicago been described as among the most sophisticated dark websites for almost eight years, and before that you were in private of its time. I am very proud of these successful prosecutions, practice with a prominent firm in Washington, DC, will always be grateful for the comradery and selflessness of the representing corporations and executives as a white- agents I had the privilege of working alongside, and will always collar defense attorney, FCPA practitioner, compliance be gratified by the positive difference these prosecutions have counselor, and civil litigator. Why did you decide to made to so many. become a prosecutor? You have worked as a defense attorney representing I never had the extraordinary honor of wearing the military corporations facing high-stakes investigations, and uniform, but as a first-generation American, I had a strong you currently work as a prosecutor who leads such desire to serve this great country, give back, and at some level investigations. How valuable is it to have worked on both make a difference. After becoming a lawyer, and as I handled sides of the aisle? How specifically do your experiences high-profile white-collar cases in private practice, I realized in private practice inform your work as an investigator I could use my legal training, skills, and passion to represent and prosecutor? the United States as a prosecutor. It became something I very much wanted to do, and I especially wanted to investigate and My time in private practice has immensely contributed to my prosecute complex, sophisticated white-collar cases. But, as work as a prosecutor. Those prior experiences, and the lessons luck would have it, the timing was a bit off; I applied to become I learned, inform my strategic decisionmaking throughout all a prosecutor during a hiring freeze. Notwithstanding that, I phases of an investigation and prosecution. More specifically, was really committed to serving and willing to move almost they also allow me to put myself in the “defense’s shoes” when I anywhere the opportunity would take me. When the freeze make a request, issue a subpoena, obtain a search warrant, take lifted, then-Chicago U.S. Attorney Patrick Fitzgerald was a position, or weigh options. Conversely, I feel I am also able to the first to make me an offer; I gratefully accepted, and have better assess the claims and challenges facing opposing counsel. remained in Chicago as a prosecutor since. Simply stated, in my view, a prosecutor with substantive, in-the-trenches private-practice experience has the advantage Since becoming a prosecutor, you have led what the of being able to “think like a defense attorney,” while at the national press and legal commentators have described as same time being able to credibly identify with, and relate to, some of the largest and most complex international fraud opposing counsel. and cybercrime investigations and prosecutions. How have you successfully investigated and prosecuted such You teach a course at the University of Chicago Law School high-profile cases? on Corporate Criminal Prosecutions & Investigations that covers a variety of white-collar crime topics, including the Winston Churchill famously told students of the Harrow School Foreign Corrupt Practices Act, a law with which you have in 1941, “Never, never, never, never—in nothing, great or small, been deeply involved for well over a decade. Do students large or petty—never give in, except to convictions of honor and often begin your class with any myths that the course good sense.” My parents raised me to believe that one person can ultimately dispels? make a difference. As a prosecutor, this translates into a belief that one should not easily give up on a worthy case—particularly Some students begin the class under the impression that one with identifiable victims—just because it may be tough, corporate criminal cases, including those involving the prolonged, untraditional, or present an uncertain outcome. I like FCPA, proceed through a litigative process similar to that of to think that this mindset has served me well. And it of course commercial litigation. By that I mean that a complaint is filed, helps when the federal agents with whom you work as part of a and years’ worth of adversarial discovery takes place, after team are among the best in the business. For example, some of which a case is resolved through either a settlement or trial. my most significant cases have been with phenomenal federal Those impressions quickly evaporate as we work through the agents of the Department of Homeland Security in Chicago. material and discuss central topics such as the foundational Together we’ve twice successfully prosecuted what are billed as principles for corporate criminal liability, mandatory and the largest criminal trade fraud cases in U.S. history, as well as voluntary self-disclosure, corporate cooperation, prosecutorial the largest drug trafficker in the world on “Silk Road,” which has charging discretion, pre-trial diversion agreements, collateral

* In his personal capacity SUMMER 2015 11 consequences, and other related topics. By the end of the course, students understand that the corporate criminal case has a life cycle unique to itself, and that, more often than not, the process involves persuading prosecutors not to file formal charges at all, or to announce formal charges with an accompanying negotiated resolution. The takeaway for the student is that to successfully practice in the field—whether as a prosecutor or defense attorney—you must understand both the substantive law as well as the distinct procedural framework in which the law operates, especially with respect to corporations.

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

UVA Law is chock-full of dynamic professors, who are as caring as they are accomplished. That said, I really enjoyed learning from Professor Jeffrey O’Connell, who until he passed away in 2013, was one of the leading lights of the insurance and tort bars. Having created the theoretical underpinnings for no-fault insurance, Professor O’Connell was able to import the challenges of the real world into the classroom, where we discussed both problems and solutions. In doing so, he offered wonderfully practical insights, while simultaneously maintaining a demanding academic setting. I not only took Professor O’Connell’s advanced torts course, but I later dialogue as well as offer real-world practical observations and became his research assistant. And, together, we authored a commentary, all while staying current on best practices and comprehensive article on certain aspects of tort reform that learning of new ones. was published by the Notre Dame Law Review—an experience You clerked for Judge Eugene E. Siler, Jr., on the United that was both rigorous and educational. All these years later, I States Court of Appeals for the Sixth Circuit. Have you am very grateful for the time and energy Professor O’Connell continued to stay in touch with Judge Siler? What is the invested in me. I believe I am a better lawyer for having studied most lasting piece of advice he gave you? under his care. Judge Siler is a role model, mentor, and trusted friend. He is not In May of this year, you attended The American Law only a legal giant, but a wonderful person. All these years later, Institute’s Annual Meeting. What were your first he and I have remained in close contact. When you clerk for impressions as a new member? Judge Siler, you learn that he is a man whose actions transcend First I thought to myself: “Wow, I’m surrounded by some really words. His most lasting piece of advice came in the form of me impressive people.” Then I reflected on how lucky and honored watching firsthand his never-ceasing respectful treatment of I was to have been elected into this prestigious professional others. And by others, I mean everyone, whether from law or life. family. As the Meeting progressed, it became apparent to The lesson to me was that to be a good effective lawyer, one must me that ALI members seriously cared about the issues being treat others well, including those with whom one disagrees—and discussed, and that the Reporters and other leaders welcomed perhaps especially those with whom one disagrees. And perhaps constructive feedback and debate, including from new as a variation on this theme, I also learned that an effective members. Finally, I was happy to see that the same luminaries advocate disagrees with a position—not the person. who spoke of law by day were able to relax and enjoy friendships What is your idea of a perfect vacation? Tell us about an and fun by night. Through it all, I was made to feel welcomed. especially interesting place you’ve been, or a place that’s on So far, you have joined the MCG for two ALI projects— your wish list. Corporate Compliance and Police Investigations. What Usually, I prefer active vacations full of sightseeing, adventure, drew you to these? historical exploration, and/or cultural immersion. But, My background on the one hand assessing and designing sometimes, I just want to sit in a comfortable chair and look out corporate-compliance programs while in private practice, and at a body of water or the Rocky Mountains. My most memorable on the other hand, evaluating such programs as a prosecutor, vacation was my visit to the land of my ancestral roots, Egypt, immediately drew me to the Corporate Compliance project. which was a trip I took shortly before starting law school. I Also, I think about—and work through—the spectrum of law- treasured stepping back into history and visiting some of the enforcement investigations on a near-daily basis. By signing earliest churches of Christianity and tremendously enjoyed up for these projects, I hope to meaningfully contribute to the exploring the remains from the ancient kingdoms of Pharaonic Egypt. It was the trip of a lifetime. continued on page 12 12 THE ALI REPORTER

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

You recently spoke in London at an ABA event celebrating demand to know how corporations actually earn them. As the 800th anniversary of the Magna Carta. One of the topics such, global corporations can play a vital part in combating the you addressed was human trafficking and corporate social various forms of forced, coerced, and child labor by committing responsibility. How, in your view, is the international to supply-chain integrity, transparency, and corporate good community addressing forced and child labor and what citizenship. To this end, I should note that the ABA and its role can global corporations play in combating this Criminal Justice Section, as well as prominent leaders within persistent problem? the bar, are educating, training, and offering proactive solutions to the business, corporate, and law-enforcement communities Forced and child labor are significant problems that know grappling with these emerging challenges. Two such compliance no borders, rank among the most wide-spread and profitable trailblazers—who, unsurprisingly, are also ALI members—are species of transnational criminal activity, and year-after-year U.S. District Judge Virginia M. Kendall and Perkins Coie ensnare tens of millions of victims. Today, perhaps more than Partner T. Markus Funk, both of whom are distinguished ever, there is widespread recognition of the serious problem, alumni of my Office. and a growing international consensus to do something about it. That is evident from burgeoning legal mandates such as those found in the President’s Executive Order Strengthening Protections Against Trafficking in Persons in Federal Contracts, the California Transparency in Supply Chains Act, the UK Modern Slavery Act of 2015, and the proposed federal Business Supply Chain Transparency on Trafficking and Slavery Act. In fact, legislators from around the globe are in the process of examining new laws that impose stiff criminal and civil sanctions on individuals—and companies—that are involved in such conduct, or, in the case of businesses, that fail to take measures to eliminate it from their supply chains.

As these new (and proposed) legal requirements illustrate, the winds of corporate social responsibility are no longer carrying Boutros speaking at ABA Event in London celebrating the 800th anniversary of the Magna Carta only questions about how corporations spend profits, but rather

BOTTOM LEFT Dean Andrew R. Klein, Professor Frank Sullivan, Jr. (with Cheryl G. Annual Dinner Sullivan), and Professor Jennifer Ann Drobac of Indiana University Robert H. McKinney School of Law Members attended the Annual Dinner on the second night of the Annual Meeting. In addition to networking with new and BELOW old friends, Members were treated to a panel featuring former Bill Wagner, a founding partner of Wagner McLaughlin; Gary L. Sasso, Senators George J. Mitchell and Olympia J. Snowe, moderated president and chief executive officer of Carlton Fields Jorden Burt; Guy Miller Struve, senior counsel at Davis Polk & Wardwell LLP; and Larry by ALI President Roberta Cooper Ramo. S. Stewart of Stewart Tilghman Fox Bianchi & Cain, P.A. SUMMER 2015 13 92nd Annual Meeting Members Reception and Buffet ALI hosted a Members Reception at the National Museum of the American Indian. The museum, part of the Smithsonian Institution, houses one of the world’s largest and most diverse collections of its kind. The museum’s curvilinear architecture, its indigenous landscaping, and its exhibitions were all designed in collaboration with tribes and communities from across the hemisphere.

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

Annual Dinner

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

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

BOTTOM MIDDLE Chancellor Harvey S. Perlman of the University of Nebraska, Judge A. James Robertson II of the San Francisco Superior Court, and Terrance G. Reed, Lankford & Reed, P.L.L.C. Raymond J. Lohier, Jr., judge on the U.S. Court of Appeals, Second Circuit, and Iris Lan of the U.S. BOTTOM Department of Justice Members gather at the museum. 14 THE ALI REPORTER Class of 1990 Celebrates New Life Member Status by Presenting Class Gift to the Institute

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

ALI’s new life and 50-year members were honored at a luncheon on Tuesday, May 19, where Andrew D. Hendry of Colgate-Palmolive Co. and Ronald L. Olson of Munger Tolles & Olson presented the 1990 Life Member Class Gift to the Institute. FROM LEFT, TOP: John A. Spanogle, Jr., J. E. Gallegos, Kenneth S. Abraham, John Michael Clear, Thomas R. Phillips, John A. Nadas, Martin D. Begleiter, Jack B. Jacobs, Vance K. Opperman, Mr. Hendry and Mr. Olson, along with Ronald William Meister; MIDDLE: Richard W. Wright, W. Amon Burton, Robert A. Goodin, Professor Jay L. Westbrook of University Charles W. Petty, Jr., Catherine Kessedjian, Thomas Carlton Arthur, Bernard D. Reams, Jr., of Texas School of Law and Lovida H. Daniel O. Bernstine; BOTTOM: Ronald L. Olson, Gita F. Rothschild, Larry W. Sonsini, Coleman, Jr., served as Co-Chairs of Geoffrey C. Hazard, Jr. (50-Year Member), Diane P. Wood, Joan E. Steinman, Andrew D. Hendry the 1990 Life Member campaign, in which nearly 70 percent of the Class served as ALI’s Director from 1984 to acquisitions—spoke on “The Corporate participated in raising over $125,000 1999. ALI President Roberta Cooper Governance Landscape.” to fund key ALI initiatives such as the Ramo presented Professor Hazard, her Judges and Public-Sector Lawyers former civil-procedure professor, with Mr. Sonsini described the rise of Expense Reimbursement Program and a medallion honoring his 50 years as an shareholder activism, the issues caused the Members Consultative Group Travel ALI member. President Ramo praised by shareholder activists, and the way Assistance Program. Professor Hazard for his intellectual in which boards and companies should vigor and insistence on quality of work, respond. He explained that as a result An essential purpose of the gift, Mr. of shareholder activists pressuring Hendry said, is “to have money not be as well as his impact on ethics in the legal profession. companies to return capital to investors, an impediment to getting the best and there has been a reduction in investment brightest working on our projects.” Larry W. Sonsini, the Chairman of in Research and Development. Mr. The Class Gift will also be used to Wilson Sonsini Goodrich & Rosati, Sonsini ended on a positive note, stating support the Young Scholars Medal and and a member of the Class of 1990, that despite continued efforts by foreign symposium—which raises awareness was the speaker at the luncheon. Mr. countries to emulate what the United of the Institute’s work and engages the Sonsini—who has been involved in many States has done in its markets, “we will next generation of preeminent legal of the most notable IPOs, mergers, and continue to lead the world” as long as we minds—as well as ALI’s ongoing law- acquisitions in the Silicon Valley and don’t lose sight of long-term value. reform projects. beyond, and has gained international recognition for his expertise in the The Institute’s Class Gift program will Representing the Class of 1965 was areas of corporate law, corporate continue with the 1991 Life Member Professor Geoffrey C. Hazard, Jr., who governance, securities, and mergers and Class that will be honored at the 2016 Annual Meeting. SUMMER 2015 15 The 1990 Life Member Class Gift The 1990 Life Member Class Gift will be used to fund important aspects of The American Law Institute’s mission, including the Members Consultative Group Travel Assistance Program, the Young Scholar Award and symposium, Judges and Public- Sector Lawyers Expense Reimbursement Program, and the Institute’s influential law-reform projects. Class of 1990 Co-Chairs Lovida H. Coleman, Jr., Andrew D. Hendry, The Institute is grateful for each and every gift that contributed Ronald L. Olson, and Jay L. Westbrook to the success of this campaign. We appreciate your generosity.

GIVING CIRCLE DONORS Judith Richards Hope, Washington, DC Jerold I. Horn, Peoria, IL Founders Circle $50,000 and above Wayne S. Hyatt, Atlanta, GA Andrew D. Hendry, New York, NY Jack B. Jacobs, Wilmington, DE Charles Alan Wright Circle $10,000 – $14,999 In honor of Robert H. Mundheim Ronald L. Olson, Los Angeles, CA Catherine Kessedjian, Paris, France (Five-year Pledge) Herbert Wechsler Circle $5,000 – $9,999 George Theodore Lowy, New York, NY Robert A. Goodin, San Francisco, CA (Five-year Pledge) Leonard P. Novello, New York, NY Theodore N. Mirvis, New York, NY Robert L. Parks, Miami, FL (Five-year Pledge) Thomas R. Phillips, Austin, TX Gita F. Rothschild, Newark, NJ Roberta Cooper Ramo, Albuquerque, NM In memory of Andrew T. Berry In honor of the 1990 Class Co-Chairs Larry W. Sonsini, Palo Alto, CA Bernard D. Reams, Jr., San Antonio, TX John M. Walker, Jr., New Haven, CT Joan E. Steinman, Chicago, IL (Five-year Pledge) $2,000 – $4,999 Soia Mentschikoff Circle Anthony van Westrum, Golden, CO Martin D. Begleiter, Des Moines, IA (Five-year Pledge) Alexandra A. Brookshire, Seattle, WA W. Wayne Withers, St. Louis, MO Margaret H. Marshall, Cambridge, MA Diane P. Wood, Chicago, IL John A. Nadas, , MA Lester Ray Woodward, Denver, CO Nicholas Adams Robinson, Sleepy Hollow, NY Michael D. Zimmerman, Salt Lake City, UT David H. Weinstein, Philadelphia, PA Sustaining Life Donors $125 – $250 Jay L. Westbrook, Austin, TX Thomas Carlton Arthur, Atlanta, GA Peter V. Baugher, Chicago, IL DONORS Joseph E. Coughlin, Kenilworth, IL Sustaining Life-Plus Donors $500 – $1,999 Jane C. Ginsburg, New York, NY M. Bernard Aidinoff, New York, NY Jeffrey N. Gordon, New York, NY Daniel O. Bernstine, Newtown, PA David I. Levine, Berkeley, CA In memory of Robert B.L. Murphy Ronald William Meister, New York, NY W. Amon Burton, Austin, TX In honor of Eugene R. Fidell John Michael Clear, St. Louis, MO Peter J. Messitte, Greenbelt, MD (Three-year Pledge) Charles W. Petty, Jr., Washington, DC Werner F. Ebke, Heidelberg, Germany David E. Pierce, Topeka, KS J. E. Gallegos, Santa Fe, NM John A. Spanogle, Jr., Washington, DC Roger J. Goebel, New York, NY Kate Stith, New Haven, CT Richard E. Gutman, Dallas, TX Scott E. Sundby, Coral Gables, FL Roy A. Hammer, Boston, MA Charles Szalkowski, Houston, TX Geoffrey C. Hazard, Jr., San Francisco, CA Richard W. Wright, Chicago, IL Donald B. Hilliker, Chicago, IL continued on page 16 16 THE ALI REPORTER

THE 1990 LIFE MEMBER CLASS GIFT CONTINUED FROM PAGE 15

Friends of ALI Giving Circle Donors, Sustaining Life-Plus Donors, and Kenneth S. Abraham, Charlottesville, VA Sustaining Life Donors are Sustaining Life Members for the 2015-2016 fiscal year. Dianne Bennett, Buffalo, NY Richard B. Bilder, Madison, WI ALI Development Office has made every attempt to publish George S. King, Jr., Columbia, SC an accurate list of donors for the 1990 Life Member Class Gift campaign. In the event of an error or omission, please contact Professor Stephen H. Legomsky, St. Louis, MO Kyle Jakob at 215-243-1660 or [email protected]. John Leubsdorf, Newark, NJ Paul Marcus, Williamsburg, VA This report is produced exclusively for the ALI community. The Institute prohibits the distribution of this list to other commercial Martin J. McMahon, Jr., Gainesville, FL or philanthropic organizations. Donors as of June 30, 2015.

As Work Expands, ALI Looks to Members for Support of Ambitious Agenda As Richard Revesz completes his first year as Director, The The Institute’s reputation for integrity and trustworthiness American Law Institute enters its 2015–16 fiscal year with a has always been tied to its independence, a feature that is made growing agenda. The expansion of our work—with a host of possible only by the generous contributions—both intellectual new projects launching this fall—is underscored by a new, more and financial—of its members. modern look for our website which was completely redesigned to improve its functionality and to serve as a source of news Members like you can help to ensure that our law-reform work about the Institute and its members. thrives. By becoming a Sustaining Member, joining a Giving Circle, or making a general donation, your support will be The seven new projects approved in the last fiscal year bring making an investment in the work we produce. the total number of ongoing projects to 20. And ALI members have embraced this new work—ranging from Copyright to Contributions help us guarantee that we are always hearing Campus Sexual Misconduct—by quickly joining the Members a diverse range of opinions in our unique drafting process. Consultative Groups (MCGs) in record numbers. As a result of the Institute’s financial aid initiatives, the full spectrum of ALI’s membership is able to participate in our The Institute’s goals are not only to address developing areas of in-person meetings regardless of financial means. Last year, law that are ripe for review, but to do so more efficiently. This through the Judges and Public-Sector Lawyers Expense means expediting the time in which the projects are completed Reimbursement program, 50 members were approved to to ensure they serve as valuable resources for courts as they receive a total of $51,000 to attend the 92nd Annual Meeting, adjudicate cases, and for institutions—such as universities and providing critical insight to our projects. policing agencies—as they set policies. Without the funding provided by members to support the To achieve a new level of efficiency, the Institute has hired larger Institute’s mission, ALI’s revered contributions to the law teams of Reporters—sometimes as many as five Reporters on a simply would not be possible. project—to draft several sections simultaneously. More Advisers are also being chosen for these projects. Costs, therefore, are Please make a contribution to The American Law Institute sure to rise with these additional Reporter salaries and the by choosing the Sustaining Member option on your dues expenses of holding larger project meetings. statement, or by contacting Development Manager Kyle Jakob at 215-243-1660 or [email protected]. To make a gift online, please Maintaining the quality of work that ALI is known for will visit www.ali.org/support. require that the membership, the Advisers, and the Institute’s staff keep pace so that every project is subjected to the rigorous debate, discussion, and review that are ALI’s hallmark. SUMMER 2015 17

CLASS OF 1965 Stephen H. Legomsky St. Louis, MO M. Bernard Aidinoff New York, NY John Leubsdorf Newark, NJ Geoffrey C. Hazard, Jr. San Francisco, CA David I. Levine Berkeley, CA Alan Lindsay Palm Beach, FL George Theodore Lowy New York, NY Paul Marcus Williamsburg, VA CLASS OF 1990 Margaret H. Marshall Cambridge, MA Kenneth S. Abraham Charlottesville, VA Martin J. McMahon, Jr. Gainesville, FL Frank Spruill Alexander Atlanta, GA Ronald William Meister New York, NY Roy Ryden Anderson Dallas, TX Peter J. Messitte Greenbelt, MD Thomas Carlton Arthur Atlanta, GA Theodore N. Mirvis New York, NY Scott L. Baena Miami, FL Clyde A. Muchmore Oklahoma City, OK Peter V. Baugher Chicago, IL Scott W. Muller New York, NY Martin D. Begleiter Des Moines, IA Luther T. Munford Ridgeland, MS Dianne Bennett Buffalo, NY John A. Nadas Boston, MA Daniel O. Bernstine Newtown, PA Joel S. Newman Winston-Salem, NC Lawrence Bilder Teaneck, NJ Leonard P. Novello New York, NY Richard B. Bilder Madison, WI Otto G. Obermaier New York, NY Alexandra A. Brookshire Seattle, WA Dale Arthur Oesterle Columbus, OH W. Amon Burton Austin, TX Michael D. O’Keefe St. Louis, MO Michael F. Butler Washington, DC Ronald L. Olson Los Angeles, CA Elizabeth Butler-Sloss London, England Victor R. Ortega Santa Fe, NM John Michael Clear St. Louis, MO Robert L. Parks Miami, FL Neil P. Cohen San Rafael, CA Charles W. Petty, Jr. Washington, DC Lovida H. Coleman, Jr. McLean, VA Thomas R. Phillips Austin, TX Joseph E. Coughlin Kenilworth, IL David E. Pierce Topeka, KS Werner F. Ebke Heidelberg, Germany Robert Pitofsky Chevy Chase, MD Robert A. Fippinger New York, NY Mack A. Player Eastpoint, FL J. E. Gallegos Santa Fe, NM Sidney Katherine Powell Asheville, NC Jane C. Ginsburg New York, NY Bernard D. Reams, Jr. San Antonio, TX Roger J. Goebel New York, NY John G. Roberts, Jr. Washington, DC Robert A. Goodin San Francisco, CA Nicholas Adams Robinson Sleepy Hollow, NY Jeffrey N. Gordon New York, NY Gita F. Rothschild Newark, NJ Brian E. Gray San Francisco, CA Larry W. Sonsini Palo Alto, CA David L. Gregory Jamaica, NY John A. Spanogle, Jr. Washington, DC John DeWitt Gregory Hempstead, NY Joan E. Steinman Chicago, IL Philip A. Gruccio Vineland, NJ Kate Stith New Haven, CT Richard E. Gutman Dallas, TX Claude LeRoy Stuart, III Houston, TX Richard B. Hagedorn Salem, OR Scott E. Sundby Coral Gables, FL Roy A. Hammer Boston, MA Charles Szalkowski Houston, TX Ed Hendricks, Sr. Phoenix, AZ Anthony van Westrum Golden, CO Andrew D. Hendry New York, NY John M. Walker, Jr. New Haven, CT Donald B. Hilliker Chicago, IL Steven M. H. Wallman Great Falls, VA Stephen J. Holtman Cedar Rapids, IA David H. Weinstein Philadelphia, PA Judith Richards Hope Washington, DC Jay L. Westbrook Austin, TX Jerold I. Horn Peoria, IL Wayne W. Whalen Chicago, IL Wayne S. Hyatt Atlanta, GA W. Wayne Withers St. Louis, MO Jack B. Jacobs Wilmington, DE Diane P. Wood Chicago, IL Peter J. Kalis Pittsburgh, PA Lester Ray Woodward Denver, CO Catherine Kessedjian Paris, France Richard W. Wright Chicago, IL George S. King, Jr. Columbia, SC Michael D. Zimmerman Salt Lake City, UT Abe Krash Washington, DC 18 THE ALI REPORTER Young Scholars Conference Explores the Role of Law in Solving Pension Issues

Conference participants discuss and debate problems concerning public pensions and Professor Amy B. Monahan possible solutions.

The American Law Institute recently generally focused on either the legal cash-method accounting. Participants hosted the ALI Young Scholars Medal ability of states and cities to reduce also emphasized the lack of clear funding Conference “Can Law Solve the Public earned pension benefits, or on the standards for public pensions, lack of Pension Problem?” Organized by Amy possibility of state and local pension transparency, and lack of oversight. Monahan, a 2013 ALI Young Scholars liabilities being adjusted in bankruptcy. Medal recipient and a professor at the While no clear consensus emerged University of Minnesota Law School, the The discussion in the conference was with respect to the role that law can conference featured financial sector and divided into four segments in which and should play in improving funding industry leaders, leading scholars, and panelists addressed: outcomes, there was a fruitful initial distinguished practitioners. discussion of various possibilities that • The possibility and warrant further consideration. One Professor Monahan structured the desirability of a clear acknowledged hurdle of using law to conference to take a more proactive annual-funding standard enforce annual-funding requirements approach by examining whether law can • Exploring funding enforcement is the issue of separation of powers. be used effectively to prevent pension Courts are hesitant to interfere with underfunding from occurring. • The political budgeting process the inherently legislative task of allocating public funds. And while • Alternatives to There is widespread agreement that several options for federal regulation legal enforcement state and local pension plans are exist, these face significant political significantly underfunded, and that The interdisciplinary nature of the opposition. As the magnitude of public- such underfunding is likely to lead to conference was critical in exploring pension underfunding becomes more some combination of two undesirable these difficult issues of law and politics. and more clear, however, incremental outcomes: (1) a reduction in benefits for One clear takeaway from the conference legal reforms that the conference helped plan participants and (2) a reduction was that the problems facing public bring to light may be able to help cities of funding for governmental services. pensions are but a part of larger issues and states better tackle this debt in a To date, Professor Monahan believes, within state and local finance. Several fair and transparent manner, such as much of the discussion has focused on participants emphasized that pension through improved public-accounting the financial and political causes and contributions are short changed because standards and uniform reporting of implications of the public-pension of the inherently short-term focus of unfunded liabilities. crises. To the extent such discussions state and local finance, combined with have included legal issues, they have SUMMER 2015 19

SPEAKERS AND PARTICIPANTS

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

PANEL 1: THE POSSIBILITY OF DESIRABILITY OF A CLEAR ANNUAL Medal FUNDING STANDARD Justice Goodwin Liu of the California Supreme Moderator: Jack M. Beermann, Boston University School of Law Court, who chairs the Special Committee on Panelists: Keith Brainard, NASRA; Israel Goldowitz, Pension Benefit the ALI Young Scholars Medal, presented the Guaranty Corp; Jean-Pierre Aubry, Boston College Center for Retirement 2015 medals to Professors Elizabeth Chamblee Research; Paul Angelo, Segal Consulting Burch of the University of Georgia School of Law and Michael Simkovic of Seton Hall PANEL 2: THE POLITICAL BUDGETING PROCESS University School of Law. Moderator: Don Boyd, Rockefeller Institute of Government Panelists: Michael C. Genest, Capitol Matrix Consulting; Scott D. Pattison, Professor Burch’s research focuses on class National Association of State Budget Officers; Chuck Reed, Hopkins & actions and large-scale, non-class aggregate Carley (former Mayor, San Jose) litigation. She is noted for her interdisciplinary approach to procedure and often draws from PANEL 3: EXPLORING FUNDING ENFORCEMENT fields that bear on collective action and group Moderator: James E. Spiotto Chapman Strategic Advisors LLC decisionmaking, including social psychology, Panelists: Wallace B. Jefferson, Alexander Dubose Jefferson & Townsend; behavioral law, and economics, as well as Darien Shanske, UC Davis School of Law; Myron W. Orfield, Jr., University political philosophy. of Minnesota Law School’s Institute on Metropolitan Opportunity Professor Simkovic’s scholarship centers PANEL 4: ALTERNATIVES TO LEGAL ENFORCEMENT on bankruptcy, corporate finance, secured Moderator: Kim S. Rueben, Urban Institute transactions, and taxation. His article on mortgage securitization market structure is Panelists: Richard M. Hynes, University of Virginia School of Law; Kirk J. one of the most widely read pieces of research Stark, UCLA School of Law; Marcia Van Wagner, Moody’s Investors Service about the causes of the subprime mortgage PARTICIPANTS crisis. It won the writing award from the Peter Conti-Brown, Gupta Beck PLLC American College of Consumer Financial Services, and it influenced the Government Roberta Cooper Ramo, ALI President Accountability Office’s framework for Housing Brian Galle, Boston College Law School Finance Reform. He has also influenced best Clayton Gillette, New York University School of Law practices in multi-billion-dollar corporate Conrad K. Harper, ALI Council Emeritus bankruptcy litigation.

Christopher M. Klein, Chief Judge, U.S. Bankruptcy Court, Professor Burch addressed the membership Eastern District of CA on the topic of aggregate litigation. She spoke Lance Liebman, ALI Director Emeritus about the core issue across class actions and Martin Lipton, Wachtell, Lipton, Rosen & Katz multidistrict litigation—the principal–agent Luke Martel, National Conference of State Legislatures problem. Professor Simkovic will make a Stephanie Middleton, ALI Deputy Director presentation to the membership at the 2016 Annual Meeting. Kathryn Oberly, Judge, District of Columbia Court of Appeals (retired) Shaun O’Brien, AFL-CIO Richard L. Revesz, ALI Director Christine Sgarlata Chung, Albany Law School Natalya Shnitser, Boston College Law School Robert W. Stein, Society of Actuaries Elizabeth S. Stong, Judge, U.S. Bankruptcy Court, Eastern District of New York David H. Webber, Boston University School of Law Yimeng Yin, Rockefeller Institute of Government

Professor Elizabeth Chamblee Burch, Justice Goodwin Liu, and Professor Michael Simkovic 20 THE ALI REPORTER The Institute in the Courts: Restatements of Foreign Relations Law The Restatements of Foreign Relations Law of the United Justice Scalia, writing for the Court, rejected the state of States have been cited in recent noteworthy opinions. The Texas’s argument that “each additional basis [for habeas relief] Restatement Fourth, which is still in draft form, was cited in requires a cross-appeal.” The Court noted that “[c]ourts reduce a federal circuit case—the first ever citation to that project. their opinions and verdicts to judgments precisely to define The Restatement Second and Restatement Third were cited in the rights and liabilities of the parties,” and cited §§ 481-482 opinions delivered this term by the U.S. Supreme Court. of Restatement Third, The Foreign Relations Law of the United States, for the example that “[p]arties seeking to In Jerez v. Republic of Cuba, 775 F.3d 419, Dec. 30, 2014, the U.S. enforce a foreign court’s decree do not attempt to domesticate Court of Appeals for the District of Columbia Circuit affirmed an opinion; they domesticate a judgment.” The court also cited a district-court ruling that a Florida state court lacked subject- Restatement Second, Judgments § 27, and, in a dissenting matter jurisdiction when it granted a default judgment against opinion, Justice Thomas cited §§ 18 and 19 of that Restatement. the Republic of Cuba. In that case, a former Cuban national attempted to enforce a $200 million default judgment that it had In Zivotofsky v. Kerry, 135 S. Ct. 2076, Jun. 8, 2015 (No. 13-628), obtained in Florida state court against the Cuban government the U.S. Supreme Court affirmed the judgment of the Court of based on claims that he was unlawfully incarcerated and Appeals for the District of Columbia Circuit, invalidating tortured in a Cuban prison in the 1960s and 1970s. The § 214(d) of the Foreign Relations Authorization Act, Fiscal Year court held that “because no statutory exception to sovereign 2003, which directed the Secretary of State, if so requested, to immunity under the FSIA applies, the Florida state court and record “Jerusalem, Israel,” rather than simply “Jerusalem” on the Florida district court lacked subject-matter jurisdiction.” the passports of American citizens born in Jerusalem. Justice The court cited the Reporters’ Note 2 to § 463 of Restatement Kennedy, writing for the majority, quoted § 204 of Restatement Fourth, The Foreign Relations Law of the United States – Third, The Foreign Relations Law of the United States, in Sovereign Immunity (Preliminary Draft No. 2, Nov. 5, 2014), concluding that the President “possesses the exclusive power in explaining that the FSIA contains a provision that “provides of recognition” of a foreign state, and quoted the definition of foreign sovereigns a special protection” for the reason that “‘the “recognition” found in § 203 of that Restatement. In a dissent, government is sometimes slow to respond and that the public Justice Scalia questioned whether enforcement of § 214(d) of fisc should be protected from claims that are unfounded but the Act would amount to recognition at all, and argued that would be granted solely because the government failed to make a “§ 214(d) leaves the President free to dispel” any doubts about timely response.’” “whether the United States recognizes Israel’s sovereignty over Jerusalem” by “issuing a disclaimer of intent to recognize.” In Jennings v. Stephens, 135 S. Ct. 793, Jan. 14, 2015 (No. 13- Citing Restatement Second, Foreign Relations Law of the 7211), the U.S. Supreme Court reversed a Fifth Circuit judgment United States § 104, he argued that such a disclaimer “always that held that the court lacked jurisdiction over one of a criminal suffices to prevent an act from effecting recognition.” defendant’s theories of relief because an underlying federal- court judgment had granted habeas relief to the defendant on two other theories of relief but not the theory that was at issue.

SPEAKERS AT THE ANNUAL MEETING CONTINUED FROM PAGE 7

Immigrant’s Story,” she shared tales of her own life, beginning in her native South Africa where she was an outspoken opponent of apartheid, to her time on the bench. She remarked on the momentous timing of her arrival in March 1968—soon after the assassination of Martin Luther King, Jr., and just months before the assassination of Robert Kennedy—and said she felt “achingly lonely and lost,” and did not intend to study the law. It was only after traveling across the United States and learning about the American justice system, she said, that she recognized that “Law could be a means to freedom, equality, and justice for all.” Justice Marshall spoke about her concerns regarding recent rulings and upcoming decisions and urged the membership to remember the words written in the Massachusetts Constitution of 1780, which declared that judges should be “as free, impartial and independent as the lot of humanity will admit.” SUMMER 2015 21 Government Ethics

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

MCG member Richard G. Feder of the City of Philadelphia Law Department comments Participants in the project meeting, including MCG member Sarah N. Welling of the University of during the project meeting. Kentucky College of Law and Adviser Evelyn V. Keyes of the Texas First Court of Appeals Sentencing

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

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

ABOVE Reporter Kevin R. Reitz discusses the project with the Advisers and MCG members during one of the meeting breaks. 22 THE ALI REPORTER

THE PRESIDENT’S LETTER CONTINUED FROM PAGE 1

in several of the Torts sections—were civil and enlightening. As About one-third of our members have joined one or more of our always, the comments from experts and from those among us Members Consultative Groups, but many of them are not active who followed the discussion and made cogent and important participants. We also have 465 members serving as project suggestions for change or raised key questions although a Advisers appointed by the Director. In the coming year, with particular provision was not in their expertise improved so many new and important projects starting up, we hope to upon what was presented. Without the approval of both the increase the number of members who actively participate in the Council and the members at the Annual Meeting, nothing MCGs by reading drafts and providing feedback to the Reporters is the position of the ALI in any Restatement, Principles, or at meetings or by e-mail. Please visit the Projects portion of our Model Code project. website, click on a project that interests you, and then click on the “sign in” link to sign up for it. And put our Annual Meetings What may not be clear if you have not been to an Annual on your calendar if you are interested in any of our ongoing Meeting is the impact that the discussion and the Boskey work even if you have not yet had a chance to participate in the motion have on our ultimate written work. When the Boskey project meetings. motion is made, it notes that the Reporter(s) will take the discussion at the Meeting into consideration when revising As the year draws to a close, let me note that we have 100 the drafts that have been approved. That means that the percent of our Council as donors to our various funds. As I drafts posted on our website before the Meeting are often not have noted before, it is increasingly important that we be able reflective of what was approved. Additionally, it is important to self-fund our work, and the expenses of having multiple to understand that, in part because time passes and many Reporters in our efforts continually to improve our work and discussions are held between the approval of a portion of a to speed up the drafting process from start to adoption has Restatement and the final vote of the Council and membership added to our costs significantly. If you have not done so, I hope on the whole document, a final Restatement draft is not the before this year ends that you will consider making a donation work of the Institute until the final vote by the Council and the above and beyond your dues. membership. This flexibility in incorporating discussions at the Annual Meeting into the black letter, the comments, and On a personal note, I must note with such sadness the death of the other portions of a Restatement is enormously important our dear friend and ALI leader Dan Meltzer. In his lanky Jimmy and reflects the vital role of the discussions at the Annual Stewart body beat the kindest, most generous heart, and from Meeting. We find sometimes (especially in these days of internet his great brain came incredible insights and improvements to discussion and postings of various kinds) that there may be the our work from stem to stern. There was an amazing standing- wrong impression that a work has been approved when it is room-only memorial for Dan at Harvard Law School on June still in draft form. Even when there has been a vote approving a 17, and I am hopeful that we will be able to obtain a video to portion of a project, changes may be forthcoming because of the share with you all. Dan left us his wife—our member Ellen discussions. And further changes may occur before the whole Semonoff—two wonderful lawyer sons, and one precious baby project is approved and published. granddaughter. And for each of us lucky enough to know him well, he left us with the obligation to carry out, the best we can The quality of our drafting process and of our Reporters, without him, his deeply thoughtful, kind, and inclusive analysis Advisers, and members is what makes our work unique and of everything we do. heavily relied upon by judges and lawyers as they do their work. In its October 2014 Term, the Supreme Court Justices cited Which all leads me to wish you each a summer of good ALI work in 19 opinions in 11 cases. And during the just-ended health and many flowers in your gardens and the pleasure of fiscal year, our Restatements and Principles projects were friends and family. cited more than 3,000 times in reported decisions of the federal Roberta and state courts. Roberta Cooper Ramo President SUMMER 2015 23

In Memoriam – Daniel Meltzer

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

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

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

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

From January 2009 to June 2010, he served as the Principal Deputy Counsel editions of Hart & Wechsler’s The Federal Courts to President Obama. When he announced in May 2010 that he would be and the Federal System and published widely leaving that post to return to Harvard, The New York Times noted that in law journals. Professor Meltzer had “worked on nearly every major legal issue the White House has handled, a sprawling portfolio that ranged from domestic policies Elected to The American Law Institute in 1989, to national security matters.” he joined the ALI Council in 1999. In May 2013, he was named ALI’s Director Designate and was The Times report said Professor Meltzer “played a leading role” in the expected to succeed Director Lance Liebman administration’s efforts to close the military prison at Guantanamo Bay, Cuba, when he retired in May 2014. But Professor and that he had helped to prepare Supreme Court Associate Justice Sonia Meltzer withdrew from the position less than five Sotomayor for her confirmation hearings. months later for health reasons, and a renewed search ultimately led to the selection of NYU Law He was also the White House’s primary liaison to the Justice Department’s Professor and Dean Emeritus Richard L. Revesz, Office of Legal Counsel, which evaluates the legality of proposed policies, the who became ALI Director in May 2014. Times reported, as well as a key figure in the Obama Administration’s efforts to overhaul health care, “by negotiating and helping to draft an executive order On ALI’s Council, he served on the Executive Mr. Obama signed as part of a deal to persuade anti-abortion rights Democrats Committee and Nominating Committee. He also to back the bill.” served as an Adviser on three projects—Model Penal Code: Sentencing, the Federal Judicial Code After he left the White House, Professor Meltzer was appointed as a member Revision Project, and Model Penal Code: Sexual of the President’s Intelligence Advisory Board and of the Intelligence Assault and Related Offenses. He also worked on Oversight Board (IOB). the revision of the Model Penal Code’s Capital Professor Meltzer received an A.B. in Economics from Harvard College in Punishment provision. 1972 and a J.D. from Harvard Law School, where he was President of the Professor Meltzer was a Fellow of the American , in 1975. Upon graduation, he served as a law clerk to Academy of Arts and Sciences and served Judge Carl McGowan of the United States Court of Appeals for the District of as a member of the Committee on Rules of Columbia Circuit and to Supreme Court Justice . Practice and Procedure of the United States From 1977 to 1978, he was Special Assistant to the Secretary of the Judicial Conference. He also served as an Department of Health, Education, and Welfare. After that, he worked Associate Counsel in the Office of Independent three years in private practice with the District of Columbia firm of Counsel Lawrence E. Walsh on the Iran– Williams & Connolly. Contra investigation.

Revered as an expert in the fields of federal courts and criminal procedure, He is survived by his wife, Ellen Semonoff, Professor Meltzer also taught and published in the fields of constitutional law, their two sons and a daughter-in-law, and remedies, and comparative U.S./European federalism. He coauthored several one granddaughter. 24 THE ALI REPORTER

Notes About Members and Colleagues

Effective July 1, Jennifer S. Bard became the first female On May 11, Texas Governor Greg Abbott appointed Wallace B. dean in the University of Cincinnati College of Law’s 182-year Jefferson, a partner at Alexander Dubose Jefferson & history. She holds a secondary faculty appointment in the Townsend and a former chief justice of the Texas Supreme Department of Internal Medicine in UC’s College of Medicine. Court, as a member of the Texas Historical Commission for a term to expire on February 1, 2019. John H. Beisner, a partner at Skadden, Arps, Slate, Meagher & Flom, testified on April 29 in support of the Fairness Douglas Laycock was interviewed about the controversial new in Class Action Litigation Act of 2015 before the House Indiana religious-freedom law by Religion & Politics, an online Judiciary Committee’s Subcommittee on the Constitution news journal that is a project of the John C. Danforth Center on and Civil Justice. Religion & Politics at Washington University in St. Louis.

In July, Kathleen M. Boozang, previously an associate dean Gillian L. Lester, in her third month as dean of Columbia Law at Seton Hall University School of Law in Newark, NJ, became School, was profiled in theNew York Law Journal as a leader the next dean of the law school. She succeeds Dean Patrick E. who is “working to crystallize a vision for the future of the Hobbs, who had led the school since 1999. school that includes innovating its curriculum and expanding its international perspective.” Martin H. Brinkley of Raleigh has been named the 14th dean of the University of North Carolina at Chapel Hill School of Law. Dickinson Wright attorney Leslee M. Lewis has been elected as a Fellow of the American College of Real Estate Lawyers. Evan R. Chesler, the chairman of Cravath, Swaine & Moore and an NYU Law Trustee; Troy A. McKenzie, of the Department George W. Liebmann, author of The Last American Diplomat of Justice’s Office of Legal Counsel; and ProfessorThomas (I. B. Tauris 2014), has published another book called The Fall of Buergenthal of the George Washington University Law School the House of Speyer (I. B. Tauris July 30, 2015). have been honored for “exceptional work” at the NYU School of Law Alumni Awards at the 2015 reunion. A new paper by Margaret Colgate Love, Adviser on the Model Penal Code: Sentencing project, details how the project Philadelphia Mayor Michael Nutter has appointed JoAnne A. manages collateral consequences by integrating them into the Epps, Dean of Temple University Beasley School of Law, to lead sentencing process. See Managing Collateral Consequences in an independent oversight board formed in response to a recent the Sentencing Process: The Revised Sentencing Articles of the Justice Department report finding that police too often use Model Penal Code, ___ Wis. L. Rev. __ (2015). lethal force, in part because of poor training. In its March 2015 issue (Vol. 83, No. 4), Fordham Law Review Susan D. Franck, professor of law at Washington and Lee republished a 1998 article by Gerard E. Lynch, now a judge on University, has been named to the Executive Council of the the Second Circuit Court of Appeals and previously a longtime American Society of International Law (ASIL). professor at Columbia Law School. The Board of Editors selected six of the most influential articles published by theLaw American Bar Association President William C. Hubbard has Review in its first century and republished one piece in each of been called to the Bench as a Master of the Honourable Society its Centennial issues. of the Middle Temple in London. Margaret H. Marshall, the former chief justice of the Massachusetts Supreme Judicial Court, was honored on April 10 for her groundbreaking career as her official portrait was unveiled at the John Adams Courthouse in Boston.

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

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

Queen Elizabeth II greets ABA President Hubbard at the ABA’s Magna Jennifer L. Mnookin, the David G. Price and Dallas P. Price Carta Commemoration. Professor of Law at UCLA School of Law, will become the law school’s ninth dean on August 1. SUMMER 2015 25

Karen Nelson Moore, a judge on the ambitious agenda for the IBA, including Sitkoff, The Prudent Investor Rule and U.S. Court of Appeals for the Sixth topics such as human rights, trafficking, Market Risk: An Empirical Analysis Circuit, has been named president climate change, and judicial integrity (Mar. 20, 2015). Harvard Pub. Law of ’s Board of and corruption. See Dirk Olin, New Working Paper No. 15-06; Northwestern Overseers for 2015-2016. Leader Sets Agenda for the Bar Without Pub. Law Research Paper No. 15-16. Borders, The National Law Journal Robert L. Parks, principal and (Mar. 25, 2015). Carol S. Steiker, a Harvard Law School founding partner of The Law Offices of professor, recently delivered a lecture, Robert L. Parks, has been selected to Dr. Lindsay Robertson has been “Unpremeditated: Capital Punishment receive HistoryMiami’s 11th Judicial selected as the first Chickasaw Nation and American Law.” She and her brother, Circuit Historical Society’s 2015 Native American Law Chair at The Jordan M. Steiker, a professor at the Legal Legend Award. University of Oklahoma College of Law. University of Texas School of Law, are writing a book in which they argue The University of Florida has announced that, over the last 50 years, capital that Laura A. Rosenbury is the new punishment has become the subject of dean of the Levin College of Law. She is top-down, national regulation from the the first female permanent dean in the U.S. Supreme Court. law school’s 106-year history. E. Thomas Sullivan, president of Victor E. Schwartz, a partner at Shook, the University of Vermont, has been Hardy & Bacon, recently debated named the 2015 recipient of the Robert malpractice lawsuits and civil justice J. Kutak Award, which is bestowed reform with Ralph Nader on the Ralph annually to honor an individual who Robert Parks receives Legal Legend Award Nader Radio Hour show. has made significant contributions to Professor David J. Seipp of Boston the collaboration of the legal academy, University School of Law delivered the the bench, and the bar. He will receive Effective June 15,William J. Perlstein Youard Lecture in Legal History at the the award at a reception in his honor on left WilmerHale to join BNY Mellon Oxford University Faculty of Law, on July 31, during the 2015 ABA Annual as Senior Deputy General Counsel. He March 10, with the provocative title Meeting in Chicago. leads the Legal Department practice “When Lawyers Lie: Forging an English Mary-Christine Sungaila of Haynes groups focused on government affairs, Constitution in 1399.” public policy and regulatory affairs, and and Boone, LLP, has received two the corporate services legal functions Robert H. Sitkoff, a Harvard Law School awards: a California Lawyer Attorney supporting M&A, IT, real estate, professor, and Max M. Schanzenbach of the Year (CLAY) award from procurement and sourcing support, and of Northwestern University School California Lawyer magazine for work cyber security. of Law posted a study of the Prudent with significant impact over the past Investor Rule—a rule first crafted by year on the law, the profession, a David W. Rivkin, International Bar The American Law Institute in the particular industry, or the public good; Association President and a partner Restatement Third, Trusts, that became and the Orange County Hispanic Bar at Debevoise & Plimpton LLP, where the centerpiece of fiduciary investment Association’s (OCHBA) Attorney he co-chairs the International Dispute law-reform efforts in the 1990s and of the Year Award for her sustained Resolution Group, has been profiled was ultimately adopted by every state. commitment to pro bono appellate work. in The National Law Journal for his See Max M. Schanzenbach & Robert H.

In Memoriam

ELECTED MEMBERS Roger Errera, Paris, France

LIFE MEMBERS William T. Bahlman, Jr., Cincinnati, OH; J. Ralph Beaird, Athens, GA; Stewart S. Dixon, Chicago, IL; Louis A. Fuselier, Jackson, MS; William G. Guerri, St. Louis, MO; Meyer Kramer, Brooklyn, NY; Daniel J. Meltzer, Cambridge, MA; John E. Murray, Jr., Pittsburgh, PA; Julian J. Nexsen, Columbia, SC; Eldon Olson, New York, NY; H. Martyn Owen, Brunswick, ME; Robert P. Patterson, Jr., New York, NY; Fletcher Leftwich Yarbrough, Dallas, TX 26 THE ALI REPORTER Liability Insurance

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

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

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

In Memoriam – Vincent L. McKusick

Vincent L. McKusick, the former Chief Justice of Maine and a structure and operation of the courts, many involving volunteer dedicated member of The American Law Institute for 53 years, efforts from the community. He rejoined Pierce Atwood on his died on December 3. He was 93. retirement from the bench in 1992.

A member of the Institute since 1961, Justice McKusick Justice McKusick received an A.B. from Bates College, an S.B. was elected to the ALI Council in 1968 and served 40 years and S.M. from the Massachusetts Institute of Technology, and before taking emeritus status in 2008. He also served as an an LL.B. from Harvard Law School, where he was president of Adviser on several ALI projects—Restatement Third, Torts: the Harvard Law Review and graduated magna cum laude. Prior Products Liability; Restatement Second, Property (Donative to joining Pierce Atwood, he served successively as law clerk Transfers); the Federal Securities Code; and the Federal to Chief Judge Learned Hand of the U.S. Court of Appeals for Judicial Code Revision Project. He was active in many legal the Second Circuit and Justice Felix Frankfurter of the U.S. organizations, holding leadership positions in the ABA, the Supreme Court. From 1943 to 1946, he served in the U.S. Army, American Bar Foundation, the American Judicature Society, including 14 months participating in the Manhattan Project in the National Conference of Commissioners on Uniform State Los Alamos, New Mexico. Laws, and the Conference of Chief Justices, serving as its President in 1990-91. Justice McKusick was the recipient of numerous awards. In 1993, he was awarded the inaugural Maine Prize, together with From 1952 until his appointment as Maine’s Chief Justice his identical twin brother, the late world-renowned geneticist in 1977, Justice McKusick practiced law with the prominent Victor McKusick, in honor of their “nationally recognized Maine firm of Pierce Atwood in Portland. During his years on contributions to the quality of life.” the high court, he initiated significant improvements in the SUMMER 2015 27

New Members Elected

On April 14, the Council elected the following 82 persons: John M. Barkett, Miami, FL Brandon L. Garrett, Charlottesville, VA Cory E. Manning, Columbia, SC Scott Bernstein, Miami, FL David R. Geiger, Boston, MA Edward M. Mansfield, Des Moines, IA Richard J. Bonnie, Charlottesville, VA Suzanne Goldberg, New York, NY Beverly B. Martin, Atlanta, GA Andre G. Bouchard, Wilmington, DE Jonathan M. Goodman, Fairfield, CT Geoffrey P. Miller, New York, NY Andrew S. Boutros, Chicago, IL Scott Darren Goss, San Diego, CA Douglas K. Moll, Houston, TX Jeffrey S. Boyd, Austin, TX Maria D. Granger, New Albany, IN Andrew P. Morriss, Fort Worth, TX Steven M. Bradford, Muscatine, IA James E. Graves, Jr., Jackson, MS Tina L. Nadeau, Concord, NH John Bursch, Grand Rapids, MI Martin Guggenheim, New York, NY Catherine Gage O’Grady, Tucson, AZ Emily Buss, Chicago, IL Rachel A. Harmon, Charlottesville, VA Colin Owyang, Boston, MA Ivonne Cabrera, Downers Grove, IL Brent L. Henry, Boston, MA Sue L. Robinson, Wilmington, DE Susan B. Carbon, Manchester, NH Carrie J. Hightman, Merrillville, IN Jeffrey Rosen, Philadelphia, PA W. Tucker Carrington, Oxford, MS Jennett Hill, Indianapolis, IN John Ford Savarese, New York, NY Karen R. Carroll, Vernon, VT Russell F. Hilliard, Portsmouth, NH Stewart J. Schwab, Ithaca, NY Richard T. Cassidy, Burlington, VT Michael David Hintze, Redmond, WA Elizabeth S. Scott, New York, NY Sarah L. Cave, New York, NY Clare Huntington, New York, NY D. Daniel Sokol, Gainesville, FL John J. Connolly, Baltimore, MD Martha Hill Jamison, Houston, TX Laura D. Stith, Jefferson City, MO Robin Kundis Craig, Salt Lake City, UT Emily J. Joselson, Middlebury, VT Peter E. Strand, Kansas City, MO Pamela Craven, Bernardsville, NJ Jude Kearney, Washington, DC Jeannie Suk, Cambridge, MA Charles G. Curtis, Jr., Madison, WI Howard Bruce Klein, Philadelphia, PA Mary Ellen Tabor, Des Moines, IA Andre M. Davis, Baltimore, MD Thomas R. Kline, Philadelphia, PA Kellye Y. Testy, Seattle, WA Sheila A. DiTullio, Buffalo, NY Steve Y. Koh, Seattle, WA Mary Jane W. Theis, Chicago, IL Robert M. Dow, Jr., Chicago, IL Shirley Werner Kornreich, Michael E. Tolbert, Gary, IN Richard K. Eaton, New York, NY New York, NY Michelle M. Umberger, Madison, WI Kevin Emas, Miami, FL Erin C. Lagesen, Salem, OR Karen Lynn Valihura, Wilmington, DE Samuel Fifer, Chicago, IL Jaynee LaVecchia, Morristown, NJ Elisa Masterson White, Little Rock, AR Barry Friedman, New York, NY Travis LeBlanc, Washington, DC Peter A. Winn, Seattle, WA T. Markus Funk, Denver, CO Benjamin Lerner, Philadelphia, PA Mary Yu, Olympia, WA Kenneth S. Gallant, Little Rock, AR Joanne M. Locke, Boston, MA Torts: Intentional Torts to Persons

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

ABOVE Adviser Benjamin C. Zipursky of Fordham University School of Law comments during the meeting. (ISSN 0164-5757) THE AMERICAN LAW INSTITUTE 4025 CHESTNUT STREET NONPROFIT ORG PHILADELPHIA, PA 19104-3099 U.S. POSTAGE PAID ALI

The American Law Institute Introduces Restatement of the Law Employment Law

The result of nearly a decade of work by eminent scholars, judges, and practicing lawyers, this new volume clarifies employment law today.

This publication provides concise and clear rules and analysis on issues specific to the employment relationship, including contracts, termination, compensation, benefits, tort liability, wrongful discharge in violation of Members receive a 20% discount. public policy, defamation, wrongful interference, To order this Restatement at misrepresentation, autonomy, privacy, employee the discounted rate, contact ALI Customer Service at 1-800-253-6397 obligations, restrictive covenants, and remedies. or visit us online at www.ali.org. Use coupon code ALIM2015EMP.

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