ALI Annual Meeting Continues

Another report from the annual meeting of the American Law Institute. (Readers likely know that ALI is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. It publishes the Restatements and other works, including, notably for our readers, the Principles of the Law of Aggregate Litigation.)

Day 2 highlights included an address by the still-new Chief Justice of the California Supreme Court, the Honorable Tani Cantil-Sakayue.  Her remarks focused on the issues of access to justice in these challenging economic times.  She talked about the looming issues in her first 5 months as Chief Justice, presiding over a judicial branch with 2000 judges, 21,000 employees, and 500 facilities.

She noted how over the past 14 years the California judicial system has evolved from a loose confederation to a more unitary system, having more control over where the courts will be situated. The use of court fees is a primary mechanism funding 60 major construction projects to bring the California judicial system into the 21st century.

Another interesting session concerned the recently completed Restatement Third of Restitution and Unjust Enrichment.  Starting about a generation ago, many law schools stopped having courses on these doctrines, which had been a staple of law school curricula. For the younger ALI members, the Reporter, Prof. Kull noted that restitution is like in the game of Monopoly;  you land on Community Chest and get a card "Bank error in your favor, collect $20", and then the next day the bank wants that money back.

But even if the classes have, the claims have not vanished -- ask Mets fans about the Madoff-related litigation. Indeed, along with torts, contracts, equity, and statutory claims, restitution provides one of the fundamental sources of economic harm claims.  Restitution is a distinct form of liability, not necessarily based on a tort or a contract, and its remedies can be distinct as well.

The First Restatement from the 30's and the leading treatises from the early 70's had been outdated and out paced -- hence this project.  The new restatement strives for plain English, and does not rely on arcane pleading doctrines. It attempts to fit the cases into a set of General Principles, and then discusses the rules governing liability, remedies, and defenses. Publication is expected by summer 2011.


ALI Annual Meeting This Week

Your humble blogger is a member of the American Law Institute, attending the annual ALI meeting in San Francisco this week.  Readers likely know that ALI is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law.  It publishes the Restatements and other works, including, notably for our readers, the Principles of the Law of Aggregate Litigation.

Highlights of Day 1 included an address by Steve Zack, President of the ABA.  We have been privileged to know and work with this excellent lawyer for about 15 years.  His tenure as head of the ABA has been marked by a number of important initiatives, and at ALI he spoke of assaults on the important principle of equal justice under law.  The down economy, falling tax revenues, etc. have severely impacted access to justice, including to the degree that civil jury trials are indefinitely postponed or excessively delayed in some jurisdictions. Courts are closed, judicial staff let go.  Steve closed with a moving story about his grandparents fleeing from the communists in Cuba, heartened by the freedoms and rule of law in the U.S., and noting that they would never be refugees again because if the U.S. legal system collapsed, there would really be no place else to go.

Mush of the afternoon was devoted to the final chapter of the Restatement Third of Torts. Volume 1 of the Restatement was published in 2009, and covers the most basic topics of the law of torts: liability for intentional physical harm and for negligence causing physical harm, duty, strict liability, factual cause, and scope of liability (traditionally called proximate cause).  A second volume, dealing with affirmative duties, emotional harm, landowner liability, and liability of actors who retain independent contractors, will complete this work and is expected to be published in 2011.  Yesterday's session dealt with the final chapter, the liability of actors who retain independent contractors.

Professor Pryor of SMU was the leader for this final chapter, which deals both with direct liability of those who hire, and vicarious liability for the contractor's tortious conduct.  Students of the Restatements may recall that Dean Prosser himself once said that this topic was "the worst mess of any chapter" in the Restatement.  But Prof. Pryor has done great work to improve that situation.

A number of tweaks were suggested by the membership, including by my colleague Jim Beck, who noted that an illustration regarding the asbestos context would be helpful, given the search for new defendants that is a constant feature of that mass tort, and a clarification of the Reporter's sense that the references to public nuisance in the section referred to traditionally land-based public nuisance claims, and were not expressing any opinion on the recent attempts to apply the doctrine to non-traditional settings, such as climate change.

ALI Annual Meeting

Next week I will be on the road attending the Annual Meeting in Washington, D.C., of the American Law Institute (ALI).  I was pleased to be elected earlier this year to membership in this organization.

As readers may know, the American Law Institute is one of the leading independent organizations in the United States producing scholarly work seeking to clarify, modernize, and otherwise improve the law. The Institute (made up of leading lawyers, judges, and law professors) drafts, discusses, revises, and publishes Restatements of the Law, model statutes, and principles of law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education. ALI has long been influential internationally and, in recent years, more of its work has become international in scope.

By participating in the Institute's work, its members have the opportunity to influence the development of the law in both existing and emerging areas, to work with other lawyers, judges, and academics, to give back to a profession to which they are deeply dedicated, and to contribute to the public good. 

Among the projects of interest to readers are the Restatement (Third) of the law of restitution and unjust enrichment, and the just-published Principles of the Law of Aggregate Litigation.