Minutes of the One Hundred Forty-Eighth Meeting of the Council

The Council of The met on Thursday,

Friday, and Saturday, December 14, 15, and 16, 19724 in Price iiall of the Univel2sity of Pennsylvania Law School and at The MrclavL in Philadelphia, Pennsylvania, The President, Norris Darrell, presided, and the Director, iierbert Wechsler, serveti as Secretary of the meeting. Present for all or part of th'e meeting were: Dillon Anderson Joseph F. Johnston Frederick A. Ballard Edward Hirsch Levi F. DI. &ird ' William B. Lockhart Bennett Boskey Ross L. ?falone Robert Braucher William L. Marbury Charles D, Ereftel lIale FIcCown John G. Buchanan Carl %IcGowan William T. Coleman, Jr. Vincent L. NcKusick R. Ammi Cutter Charles Merton Merrill Xorris Darrell Roswell B. Perkins Hardy C. Dillard H. Chapman Rose Ii. Vernon Eney Ernest J. Sargeant William 11, Erickson Walter V, Schaefer Thomas E. Fairchild Bernard G. Segal Jefferson l3. Fordham Eugene Bonn Strassburger Henry J. Friendly Roger J. Traynor ./ Edward T, Gignoux Charles Hastings Willard Erwin Ii. Griswold Laurens Williams Vester T, Hughes, Jr. John Minor 1,.Jisdom * Laurance Mastick Hyde Charles Alan !#bight William J. Jameson Charles E, bJyzanski, Jr. Herbert Wechsler Paul A. Wolkin

1 0 The President opened the meeting at 1O:OO a.m. He intro- duced the Dean of the University of Pennsylvania Law School, -- Bernard Wolfman. Dean Wolfman extended a cordial welcome and expressed pleasure on behalf of his faculty and himself at the -. Institute's meeting in the Law School which was the site of its original home. -- 2 0 Report of the Director A 0 In view of the appointment to the Supreme Judicial Court of of Co-Reporter , the appoint- ment of a new Co-Reporter for the Restatement of the Law, Second, Judgments is indicated. -- At the suggestion of the Director, the following resol- ution was unanimously adopted: Resolution No. 2153 Upon motion, duly seconded, - RESOLVED: Professor Geoffrey C. Hazard, Jr., is appointed a Co-Reporter for the Restate- ment of the Law, Second, Judgments.

B l The plan for instituting a system. of royalties or license fees for use by publishers of the official comments to the Uniform Commercial Code has been carried out and the first license arrangement has been concluded with West Publishing Company. L!e s t has agreed to pay a license fee of $5,000 a year for each of five years and the first payment has been received. C * The combined publication of Tentative Drafts 1 through 7 of the Restatement of the Law, Second, Contracts is now on press and should be available by the Spring of next year. D 0 (i) With respect to the legislative proposals con-

-2- cerning the Study of the Division of Jurisdiction Between State -- and Federal Courts now in the Congress, it appears that the Bill has survived its first exposure with but modest modifications, - The Director has met with a bar committee concerned with the

-- admiraity provisions and the committee is to prepare a report to be submitted to him for his comments prior to publication, To date, however, the report has not been received. (ii) There are two new substantive penal code -- revisions - one in Maryland and the other in Nebraska. They seem to follow the general line of penal legislative efforts in the various states.

7 The L l Federal Securities . Code project is moving ahead on schedule. A meeting in New Orleans of the Committee of the American Uar Association on Federal Regulation of Securities will consider the draft. --

F l The schedule for the February meeting of the Council

-- will include submissions on Restatement of the Law, Second, Judg- ment, the Federal Securities Code, and A Model Code of Pre-Arraignment-2 -_ Procedure.

3 0 Report of the Director of the ALI-ABA Joint Committee A 0 The fiscal year ended June 30, 1972 was the most

-- - successful one that the Joint Committee ever experienced. It appears that the current year may exceed that one.

w-- B l Courses of Study. The University of Wisconsin week-

-- long program dealt with Estate Planning in Depth last June. It was oversubscribed and so many were turned away that the course is scheduled again for June of 1973. The trend appears to favor more extensive educational opportunities than the two- or three-day pro- grams in vogue and to test this the Joint Committee will be offering a four-week program on Federal Securities Regulation in July of 1973 at EIaverford College. The Practising Law Institute has been invited to cosponsor the program and has accepted. The Planning Chairman for the course is Professor Ratner of Cornell Law School. The Joint Committee plans to conduct a number of programs with the cosponsorship of state agencies on the Proposed Federal Rules of Evidence. The first one will be offered in California. The Pro- posed Bankruptcy Rules stimulated programming in City, Chicago, Houston, and San Francisco. A course on Law and the Life Sciences in New York will probably be -a scholarship program

since interest in it is primarily on the part of individuals un- able to pay the fixed registration fee. A course of study in Florida on Land Use Planning attracted a nation-wide audience. , Appearing at the program as one of the speakers was the Governor of Florida who paid tribute to the assistance received from Fred Bosselman and the Institute's TJlodel Land Development Code in. the development and enactment of the Florida legislation on the subject. C 0 Publications and Periodicals. The final manuscript for the Civil Trial Manual, a joint endeavor with the American --

College of Trial Lawyers, is now under review. It will parallel the Trial Manual for the Defense of Criminal Cases for which Professor Anthony G. Amsterdam was the Chief Reporter. He has agreed to continue as Reporter and to prepare an annual supplement. The Proposed New Rules of Evidence, when adopted, will require a new edition of Morgan's Handbook on Evidence and Judge Weinstein has agreed to undertake its authorship. The Practical Lawyer is maintaining its subscription level. The other periodical publication of the Joint Committee is the ALI-ABA CLE Review which informs the bar of forthcoming courses of study and publications and also carries editorial material dealing with post-admission legal education and related matters. Under consideration is a new monthly publication entitled Jurisconsultus Practicus that will feature interviews with members of the profession and will also be a vehicle for carrying information about the Joint Committee's audio cassette program. D 0 The study of legal education proposed several years ago is still pending and awaiting financing. Judge McGowan and IW. Voorhees met with r/fro Wirtz who indicated that he would still have an interest if financing can be obtained and if he can conduct -- the study without reference to an overall committee representing various bar organizations. He believes that mavbead the studvb shoulrl -_- be limited to post-admission legal education. In this regard the

-._ suggestion was made that perhaps the Ford Foundation should be approached again since it may have a renewed interest in this area. -- - The suggestion that the study, if undertaken, be limited to post-

-5- admission legal education received the support of the Council. E 0 A conference is to be sponsored with the Association of American Law Schools in the Fall of 1973 to explore an enlarged role by law schools in post-admission legal education programs. -- F 0 Finally, a Committee appointed by the President to consider the future role of The American Law Institute in post-ad- mission legal education has completed its report. It is now being reproduced and will be submitted to the Council either at this meeting or at the next one. . 4 0 Treasurer% Report The reports of the Treasurer appear in Appendix A. The Treasurer submitted the following oral comments. The financial results of the Joint Committee% June 30, 1972 fiscal year have been excellent. The character of the independent auditors' report is under review. The low rate of appreciation on the. Institute% investments is causing some concern. Surplus funds on hand were being invested in short term items so that they might earn some interest. It would be appropriate for the Joint Com- mittee to invest some of its surplus funds not needed for cur- rent operations in longer term securities. An increase in the limit on membership should be considered so that there might be a greater yield from dues for general operating expenses which are

._-. now just about at the break-even point. Following his comments there was discussion of the advisability of engaging a professional investment advisor or money manager. The President suggested that this matter be further considered by the Investment Committee. The Treasurer submitted the following resolution for con- sideration and it was unanimously adopted: Resolution No. 2154 Upon motion, duly seconded, RESOLVED: The President and Treasurer of The American Law Institute are each hereby authorized to sell, assign, and transfer stocks, bonds, evidences of interest, evidences of indebtedness and/or -- of other obligation, and all other securities corporate or otherwise now or hereafter held by it in its own right or in any fiduciary capacity and to execute any and all instru- ments necessary, proper, or desirable for this purpose.

5 0 Report of the Committee on Membership During the course of the meeting, the Chairman of the Committee on Membership reported on its behalf. The Chairman's summary of his report, which includes a statement of the action taken at this meeting of the Council, appears in Appendix B. -_-. The following are the resolutions that the Council adopted: Resolution No. 2155 Upon motion, duly seconded, -. RESOLVED: Pursuant to Bylaw II (2) the number of elected members of the Institute shall not exceed 1550. Resolution No. 2156 Upon motion, duly seconded, RESOLVED: Council Rule I B pertaining to waiver of dues and attendance is amended to read as follows: "An elected member who has been such for twenty years may be relieved of the duty of attendance and the payment of dues by the action of Council." Resolution No. 2157 Upon motion, duly seconded, RESOLVED: Special Status membership without the obligation to pay dues is accorded to James V. Bennett of Bethesda, Maryland, Timothy Brown of Madison, Wisconsin, Thomas J. Michie of Charlottesville, Virginia, and Lloyd Wright of Santa Ana, California; the resignations of Philip M. Glick of Chevy Chase, Maryland, Ira R. Hill of Pittsburgh, Pennsylvania, and Breck P. McAllister of New York, New York are accepted, [\AJex S. Malone having sub- sequently withdrawn his resignation and action on George H. Hafer's resignation being held in abeyance]; those whom the Committee recommends for election to membership are hereby elected to membership. 6 0 A request from the President of the \Jorld Peace Through Law Center, Charles S. Rhyne, for a complimentary set of publications of The American Law Institute to be exhibited at the 1973 \Jorld Conference in Abidijan, Ivory Coast, and subsequently to become part of the library for African Judges was submitted. The following resolution was unanimously adopted:

Resolution NO. 2158 Upon motion, duly seconded, RESOLVED: The American Law Institute publishers are re- quested to make a gift of $ set of the Restate- ment of the Law to the World Peace Through Law Center's 1973 World Conference in Abidijan, Ivory Coast, the set to remain thereafter as part of a library for African Judges.

7 0 The Director informed the Council that it may be necessary that its next meeting be of four days duration starting on January 31 and going through February 1, 2, and 3. This suggestion met with the approval of the Council. 8 0 Restatement of the Law, Second, Property Professor A. James Casner presented Council Draft No. 1 on Landlord and Tenant, Restatement of the Law, Second, Property.

-8- This being the first presentation on this subject, the Reporter made an extensive introductory presentation, and discussion of' the various sections was thereafter undertaken. Following the con- clusion of the presentation, there was extensive consideration of the extent of the submission to be made to the Annual Meeting. The following resolution was thereupon unanimously adopted: Resolution No. 2159 Upon motion, duly seconded, RESOLVED: Chapters l-4 of Council Draft No. 1 of' the Restatement of the Law, Second, Property, after revision to reflect Council discussion and SUE- gestions, may be submitted to the Annual Meeting as Tentative Draft No. 1 and Chapters 5 and 6 arc to be submitted as a discussion draft, the Re- porter being givenleave to revise Chapter 5 in light of the discussion. 9 0 A Model Land Development Code Professor Allison Dunham and Mr. Fred P. Bosselman presented

Council Draft No. 9 containing Article 4 on. Land Acquisition and Article 12 on Financial Provisions and Conditions to Capital Grants. The Council approved in substance Parts 1, 2, and 5. Sub- stantial questions were raised concerning Part 3 on Land Acquisition for Large Scale Developments. The Council by vote of 23-13 approved a motion expressing the view that it does not look with favor on the grant of the power of eminent domain to private developers as pro- posed in this Article. After discussion of the remaining sections of this draft, the following resolution was unanimously adopted:

-9, Resolution No. 2160 Upon motion, duly seconded, RESOLVED: The Reporters are authorized to submit Parts 1, 2, and 5 of Article 4 and Article 12 of Council Draft No. 9 to the Annual Meeting after revision in accordance with the dis- cussion and suggestions of the Council; Part 3 of Article 4 may also be submitted but the views of the Council with respect to it are to be brought to the attention of the Annual Meeting; Part 4 on Land Reserves is to be recommitted to the Ad- visers and discussion is to be postponed to a later date.

10 l Restatement of the Law, Second, Torts Professor John W. Wade presented Council Draft No. 36 dealinll: with Immunities, Damages, and Injunction. Material in this draft had previously been submitted to the Council and had been recommitted to the Reporter. There was further extensive discussion of Sections 903, 908, 914A, 924(comrlent h), -- and 927. The following resolution was unanimously adopted: Resolution No. 2161 Upon motion, duly seconded, ..- RESOLVED: Council Draft No. 36 may be submitted to the Annual Meeting upon being revised to reflect the action taken at this meeting of the Council. There being no further business, the meeting adjourneti at

- 330 p.m. on Saturday, December 16, 1972. Respectfully submitted,

Herbert Wechsler, Secretary

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