VOLUME 32 • NUMBER 1 FALL 2009 The ReporterPublished By The American Law Institute DEDICATED TO CLARIFYING AND IMPROVING THE LAW XX The President’s Letter Capital Punishment and Other Matters Last May at the Annual Meeting, after (The Council report, dated April 15, At both the Council meeting and the thoughtful debate our members voted in 2009, is accessible on the Institute’s web- earlier Program Committee meeting, the favor of an amendment to a recommenda- site at http://www.ali.org/doc/Capital%20 general discussion about § 210.6 led to a tion of the Council that § 210.6 of the Punishment_web.pdf.) Because it was not look at other sections of the Model Penal Model Penal Code dealing with the death the exact recommendation of the Council, Code that also seem out of date and in penalty be withdrawn. The exact language of the motion that passed, with some members abstaining, was: …the Institute withdraws Section 210.6 of the Model Penal Code in light of the current intractable institutional and structural obstacles to For reasons stated in Part V of the ensuring a minimally adequate system for administering capital punishment. Council’s report to the membership, the Institute withdraws Section 210.6 of the Model Penal Code in light of the current intractable institutional and structural this motion did not become ALI policy need of revision. That certainly applies to obstacles to ensuring a minimally ade- but was referred back to the Council for its the sections addressing the crime of rape quate system for administering capital further deliberation and vote. and to the absence in the Code of crimes punishment. newly defined in the era of electronic com- At the October Council Meeting, a strong munication. Given the Council’s interest, majority of the Council voted, with absten- the Director and the Program Committee tions, to accept the motion passed by the agreed to consider other criminal-law top- Inside… membership in May, and it now becomes ics suitable for the Institute’s attention. ALI policy. As with the meeting of the Reporter Kevin Reitz is doing excellent members in May, the Council discussion work on the sentencing portions of the Wilson Minute in was appropriately serious and substantive. Model Penal Code. Remembrance page 4 continued on page 3 Council Affirms Membership Vote to Withdraw New Project on Government Ethics Capital Punishment Section from Model Penal Code page 5 On October 23 the ALI Council voted to accept the resolution approved by the mem- bership at the 2009 Annual Meeting to withdraw § 210.6, dealing with capital punish- Fall Meetings ment, from the Model Penal Code. (For more information, including the exact wording page 6 of the resolution, see also the President’s Letter on page 1.) Having been approved by both the Institute’s membership and its Council, this reso- Notes About Members and lution is now the official position of The American Law Institute. The Council’s vote Colleagues brings to a conclusion more than two years of research, study, and discussion that began page 7 when Professors Roger S. Clark of Rutgers – Camden School of Law and Ellen S. Podgor of Stetson University College of Law moved at the 2007 Annual Meeting that the Institute take a position against the death penalty in connection with its work revis- ing the sentencing provisions of the Model Penal Code. continued on page 2 New Members Elected On September 21, the Council elected the following 68 persons as the newest members of the Institute: Keith Aoki, Davis, CA; Oren Bar- Los Angeles, CA; Richard L. Hasen, Rebecca C. Morgan, St. Petersburg, FL; Gill, New York, NY; Jennifer S. Bard, Los Angeles, CA; Berta Hernandez, Brian Morris, Helena, MT; Luz Estella Lubbock, TX; Levi J. Benton, Houston, Gainesville, FL; Tanya K. Hernandez, Nagle, St. Petersburg, FL; Joseph E. TX; Bruce J. Berger, Washington, New York, NY; Allyson N. Ho, Houston, Neuhaus, New York, NY; Kenneth A. DC; Daniel B. Bogart, Orange, CA; TX; Lonny S. Hoffman, Houston, TX; Oliphant, Vienna, Austria; Maria L. Peter J. Boyer, Philadelphia, PA; Jeffery P. Hopkins, Cincinnati, OH; Jill Ontiveros, San Francisco, CA; Carolyn Thomas J. Buiteweg, Ann Arbor, MI; R. Horwitz, Ann Arbor, MI; Philip K. S. Ostby, Billings, MT; Eric J. Pan, New John L. Carroll, Birmingham, AL; Howard, New York, NY; Anthony D. York, NY; Gordon J. Quan, Houston, William N. Clark, Birmingham, AL; Johnstone, Helena, MT; Claire R. Kelly, TX; W. Michael Reisman, New Haven, Bradley G. Clary, Minneapolis, MN; Brooklyn, NY; Julio A. Kelly, Buenos CT; Mark A. Rothstein, Louisville, KY; Gregory S. Coleman, Austin, TX; Aires, Argentina; Jeffrey S. Kinsler, Adam W. Samuel, London, England; Angela Joy Davis, Los Angeles, CA; Greensboro, NC; Christopher M. Jon M. Sands, Phoenix, AZ; Elliot Charles S. Duggan, New York, NY; Klein, Sacramento, CA; M. Sue Kurita, B. Scherker, Miami, FL; Thomas D. James J. Eisenhower, Philadelphia, PA; El Paso, TX; Arthur B. Laby, Camden, Charles R. Eskridge III, Houston, TX; NJ; Steve Leben, Topeka, KS; Wilma Schroeder, Winston-Salem, NC; David Michael S. Flynn, New York, NY; Holly B. Liebman, Washington, DC; Lisa R. Stras, Minneapolis, MN; Cindy G. Fujie, Los Angeles, CA; Eileen Gauna, Luis, Houston, TX; Pedro A. Malavet, Thyer, Paragould, AR; Loren Tucker, Albuquerque, NM; Marc J. Goldstein, Gainesville, FL; Pamela A. Mann, Virginia City, MT; Leti Volpp, Berkeley, New York, NY; Jane Cutler Greenspan, New York, NY; Michael J. Marchand, CA; Cheryl L. Wade, Jamaica, NY; Philadelphia, PA; Joanna L. Grossman, Plano, TX; M. Scott McDonald, Dallas, Spencer W. Waller, Chicago, IL; Toni P. Hempstead, NY; Gillian K. Hadfield, TX; Jacob M. Monty, Houston, TX; Wise, East Palo Alto, CA Council Affirms Membership Vote continued from page 1 editor Marianne M. Walker At its meeting in New York on October 22 and 23, the Council also approved two (215) 243-1627 Council Drafts for submission as Tentative Drafts to the membership at the 2010 Annual [email protected] Meeting: §§ 8.01 through 8.08 of Chapter 8 of the Restatement Third of Employment associate editor Law, dealing with the employee’s duty of loyalty (there was insufficient time to discuss Todd David Feldman the Chapter’s last three sections), and certain proposed revisions to U.C.C. Article 9 on (215) 243-1682 secured transactions. [email protected] The Council also reviewed Chapter 1 (Relationship Between the Charity and the State) of membership information Reporter Evelyn Brody’s draft for the Principles of the Law of Nonprofit Organizations. Beth M. Goldstein Professors George Bermann and Catherine Rogers, Reporter and one of the Associate (215) 243-1666 Reporters for the Restatement Third, the U.S. Law of International Commercial [email protected] Arbitration, presented Chapter 5, dealing with recognition and enforcement of arbitration production & design awards, for the Council’s discussion. In each case the Reporters received helpful feedback. Matthew Born The Council also approved the commencement of a new ALI project on ethics in govern- (215) 243-1685 ment. (See article on page 5.) [email protected] In other business, the Council confirmed Director Lance Liebman’s appointment of 31 The ALI Reporter (ISSN 0164-5757) is pub- Advisers to the International Commercial Arbitration project; their names are posted on lished quarterly by The American Law Institute, the Institute’s website, www.ali.org, under the “Projects” link. 4025 Chestnut Street, Philadelphia, PA 19104- 3099. Periodicals postage paid at Lancaster, PA. Following longstanding custom, two new Council members were invited to make brief POSTMASTER: Send address changes and any other communications to 4025 Chestnut Street, remarks to introduce themselves to their colleagues at the Council dinner on October 22. Philadelphia, PA 19104-3099. Derek P. Langhauser, General Counsel of the Maine Community College System, and Judge Elizabeth S. Stong of the U.S. Bankruptcy Court in Brooklyn accomplished their task with grace and humor. 2 | The ALI Reporter The President’s Letter continued from page 1 To obtain suggestions of other law- I mention this work especially because that our country faces have made the reform topics the Institute might address, litigators on our Council have made work of law reform at the highest levels and to help our members understand the point that many lawyers and judges ever more important. We hope soon to the process by which we select proj- would find the new Restatement terrifi- launch a new project on election law, our ects, Judge Paul Friedman, Chair of the cally helpful but may not appreciate the Principles of Nonprofit Organizations Program Committee, and Director Lance amount of practical guidance related to project continues to evolve, and Lance is Liebman plan to host an early-morning litigation to be found in it, because they working hard to help us define the right gathering for interested members at our may not normally think of Restitution place for us to be helpful in the area of next Annual Meeting in May 2010 in in any number of commercial situations. financial regulation. Washington, D.C., at the Mayflower If any of you are in that group, you hotel. For those of you particularly inter- will want to pay special attention to We are proud to have a small but efficient ested in this meeting about project devel- the e-mail we send to the membership staff that somehow manages to get our opment, I hope you will put our Annual proudly announcing the publication of many meetings organized beautifully, keep Meeting dates—May 17-19, 2010—on Restitution Third. up with multiple projects, and deal with your calendar now. If you can’t attend all of the other issues that nonprofits face the entire Meeting, keep your eye on our these days.