Law Commons^™

Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell

Faculty Scholarship

We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” …

Additional Comments On Preliminary Draft 9, Jane C. Ginsburg

Faculty Scholarship

I am adding to the comments submitted by Profs. Balganesh, Menell and myself a list of points in PD9 that I believe require correction or clarification. These comments do not include Chapters 8, 10 or 11.

Comments On Council Draft 7 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

CD7 adopts several of the suggestions in my comments on PD8; I appreciate those modifications. CD7 does not, however, respond to a number of other criticisms and suggestions regarding PD8. For the benefit of the Council, I reprise the suggestions that I consider to be most significant to ensuring the accuracy of the draft (page and line references have been changed to reflect CD7)

Retelling Copyright: The Contributions Of The Restatement Of Copyright Law, Jessica Silbey, Jeanne Fromer

Faculty Scholarship

This Article was written for a special issue on the American Law Institute’s (ALI) Restatement of Copyright Law.

Since the American Law Institute (ALI) launched in the early twentieth century, its mission has been “the clarification and simplification of the law and its better adaptation to social needs ... [and] to secure the better administration of justice.” A principal way it has pursued that mission has been through its Restatements of Law project. By their nature, Restatements of Law reflect tensions between what it means to “restate” and reform the law. As the ALI has grown and the legal profession …

Law School News: Logan To Serve As Adviser On Restatement Third Of Torts 11-07-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Like Snow To The Eskimos And Trump To The Republican Party: The Ali's Many Words For, And Shifting Pronouncements About, "Affirmative Consent", Kevin Cole

Faculty Scholarship

This short piece examines changes from prior drafts in the most recent draft (Preliminary Draft No. 6) of the American Law Institute's project on sexual assault law.

Rodney Dangerfield No More: The American Law Institute's Coming Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel

Scholarly Works

In a casebook I co-author, "Principles of Insurance Law," with Peter Swisher and Erik Knutsen, we refer to insurance as "the Rodney Dangerfield of law." It just does not (to paraphrase the words of the late comedian), get enough respect. Lawyers are familiar with (and have been since perhaps the fourth week of law school), the American Law Institute's Restatements of the Law, particularly widely cited restatements, such as those governing torts and contracts (and, to a lesser extent, judgments, conflict of laws, restitution, suretyship and others). Despite the importance of insurance in the civil justice system, it has been …

Enhancing The Socially Instrumental Role Of Insurance: The Opportunity And Challenge Presented By The Ali Restatement Position On Breach Of The Duty To Defend, Jeffrey W. Stempel

Scholarly Works

The American Law Institute (ALI), in its current draft of the Restatement of the Law of Liability Insurance , has adopted the position that a liability insurer in breach of its duty to defend, but not acting in bad faith, forfeits the right to dispute coverage of the resulting judgment or reasonable, noncollusive settlement in a lawsuit. The ALI view is the minority rule in the courts in that most make bad faith a prerequisite for loss of a coverage defense but presumably will spur re-examination of the issue in many states. Unsurprisingly, insurers have opposed the ALI position with …

A Restatement Of Copyright Law As More Independent And Stable Treatise, Ann Bartow

Law Faculty Scholarship

This article maps the problematic consequences of over reliance by judges, lawyers and policy makers on copyright law treatises, with a particular focus on the negative effects Nimmer on Copyright has had on the evolution of various copyright law doctrines. It proposes that an ALI Restatement of Copyright Law is needed to create a reference tool that is transparently authored and edited.

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Recognition And Enforcement Of Foreign Judgments In U.S. Courts: Problems And Possibilities, S. I. Strong

Faculty Publications

The United States is currently facing a period of intense interest in transnational litigation. Not only has the U.S. Supreme Court become increasingly active in this field, but the American Law Institute (ALI) is also in the process of revising and drafting a number of Restatements concerning international law. The United States also recently signed The Hague Convention on Choice of Court Agreements (COCA), although the instrument has not yet been ratified.

The United States can and should reconsider U.S. law concerning the recognition and enforcement of foreign judgments immediately and unilaterally. Although this may appear to be a daunting …

Agenda: Drafting Model Laws On Indoor Pollution For Developing And Developed Nations, University Of Colorado Boulder. Center For Energy & Environmental Security, Colorado Natural Resources, Energy And Environmental Law Review

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

On July 12 and 13, 2012, experts convened at Colorado Law to demonstrate the extent to which a model law could help address the global problem of indoor air pollution from inefficient cook stoves. The air pollution that results from inefficiently burning biomass as fuel for cooking has serious health and climatic consequences. The workshop produced two sets of Model Laws and commentaries to help nations solve the problem, and the commentaries were published in the Colorado Natural Resources, Energy, and Environmental Law Review.

Drafting Model Laws On Indoor Pollution For Developing And Developed Nations Workshop, July 12-13, 2012, Boulder, Colorado: Introduction, Lakshman Guruswamy

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

11 pages.

"This Essay introduces the framework for deliberation and legislative drafting undertaken at the workshop: Drafting Model Laws on Indoor Pollution for Developing and Developed Nations on July 12-13, 2012, in Boulder, Colorado. There are a number of fundamental premises upon which the workshop was based, and this Essay refers to the most salient among them."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 319 (2013).

When The Restatement Is Not A Restatement: The Curious Case Of The "Flagrant Trespasser", David Logan

Law Faculty Scholarship

No abstract provided.

The Recent Amendments To Ucc Article 9: Problems And Solutions, David Frisch

Law Faculty Publications

This article examines three of the forthcoming amendments to Article 9 in some detail: (1) the required name of an individual on a financing statement; (2) the perfection of collateral following the debtor's relocation to a new jurisdiction; and (3) collateral acquired by a new debtor. In the interest of brevity, the discussion of other, less noteworthy, amendments of the statutory text and Official Comments is not as complete. The primary purpose of this article is to off er guidance to legal professionals confronting particular issues under current and future Article 9.

On Restating Products Liability Preemption, Mary J. Davis

Law Faculty Scholarly Articles

This Article provides a brief explanation of the state of preemption doctrine and explains how the Court altered, quite dramatically, its treatment of preemption of common law tort actions in the last two decades. The Court's almost exclusive focus on the interpretation of express preemption provisions, which never specifically address common law tort claims one way or the other, turned "traditional" preemption analysis of common law tort claims on its head. The Court then, almost as suddenly, signaled a retreat from the emphasis on express preemption analysis and returned, awkwardly, to implied preemption doctrine. The Court has only recently begun …

Restating The U.S. Law Of International Commercial Arbitration, Catherine A. Rogers

Journal Articles

In December 2007, the American Law Institute ("ALI") approved the development of a new Restatement, Third, of the U.S. Law of International Commercial Arbitration (the "Restatement"). On February 23, 2009, the Restaters and authors of this Essay presented a Preliminary Draft of a chapter of the Restatement (the "Draft") at an invitational meeting in New York. The Draft addresses Recognition and Enforcement of Arbitral Awards. This brief Essay provides some reflections of the Reporters from the process of producing and presenting the Draft. Subsequent Drafts have been produced and approved by the ALI.

The "Hidden Judiciary": An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich

Vanderbilt Law School Faculty Publications

Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.

A Conference On The American Law Institute's Proposed Restatement Of Employment Law, Kenneth Glenn Dau-Schmidt

Articles by Maurer Faculty

In this volume, the Employee Rights and Employment Policy Journal presents the written reports of three working committees organized by the Labor Law Group on the American Law Institute’s Proposed Restatement (Third) of Employment Law, along with various written comments on and responses to these reports. These reports and comments were originally presented on February 7, 2009, at a conference on the American Law Institute’s Proposed Restatement (Third) of Employment Law held at the University of California – Hastings School of Law and co-hosted by the School of Law and the Labor Law Group. As the Chair of the Labor …

Restating The U.S. Law Of International Commercial Arbitration, George A. Bermann

Faculty Scholarship

The American Law Institute's new Restatement of the U.S. Law of International Commercial Arbitration is only barely underway, and the reporters began with a chapter, on the recognition and enforcement of awards, that should represent for them a comfort zone of sorts within the overall project. Yet already a number of difficult, and to some extent unexpectedly difficult, questions have arisen. Some of the difficulties stem from the very nature of an ALl Restatement project. Others stem from the nature of arbitration itself and, more particularly, from the inherent tension between arbitral and judicial functions in the arbitration arena. Still …

Providing A Safe Harbor For Those Who Play By The Rules: The Case For A Strong Regulatory Compliance Defense, Richard C. Ausness, H. Lee Barfield, David A. King, Joshua R. Denton, Stephen J. Jasper

Law Faculty Scholarly Articles

On September 25, 2003, a fire broke out at the National Health Care (NHC) nursing home facility in Nashville, Tennessee, causing sixteen deaths and a number of injuries from smoke inhalation. Thirty-two victims subsequently filed suit against the nursing home, alleging that NHC was negligent for failing to install sprinklers in its facility. This claim was made notwithstanding the fact that applicable federal, state, and local safety regulations did not require the installation of sprinklers in this particular type of building, and notwithstanding that the NHC facility had been inspected by state fire inspectors just months before the fire and …

For Ira Ellman: One More Reason 'Why Making Family Law Is Hard', David L. Chambers

Articles

Kate Bartlett and Ira worked together as reporters on the ALI project. I was merely one of nearly thirty advisors to the reporters. The advisors had no responsibility for drafting, no responsibility for coming up with original proposals. Our sole job was to come once a year to a meeting in Philadelphia and take potshots at the drafts that Ira, Kate, and Grace Blumberg sent to us. At the meetings, the reporters would sit on a platform and listen to our comments as we moved section by section through a draft. Ira became a master of reportership. He would nod …

The Politics Of The Products Liability Restatement, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Bismarck's Sausages And The Ali's Resatements, Charles W. Wolfram

Cornell Law Faculty Publications

Kentucky Law Survey: Family Law, Louise Everett Graham

Law Faculty Scholarly Articles

This Article addresses some of the family law developments occurring since the Kentucky Law Journal last published a Kentucky law survey. Space limitations preclude discussion of every post-1985 change. Instead, this Article focuses on general trends, significant cases, and legislative developments.

Inquiry into family law developments in Kentucky is timely, not only because of the social importance of family relations, but also because of other contemporaneous efforts at family law reform. The American Law Institute ("ALl") is currently considering a final draft of principles governing family dissolution. That draft, and the discussions that surround its ultimate acceptance or rejection by …

Interstate Consolidation: A Comparison Of The Ali Project With The Uniform Transfer Of Litigation Act (American Law Institute Complex Litigation Project: A Symposium, In Memoriam Donald Theodore Trautman), Edward H. Cooper

Articles

The Uniform Transfer of Litigation Act (UTLA) was undertaken for purposes simpler than the mass consolidation of multiparty, multiforum litigation. It seeks to create an effective tool that can be used to reduce some of the artificial barriers that tradition has erected around the sovereign separateness of the many different court systems in this country. The fact of separate sovereignty must be recognized, however, and to this end consent of both transferring and receiving courts is required. Within the consent requirement, transfer from the court system of one sovereign to the court system of another can improve on present practices …

Revising Section 402a: The Limits Of Tort As Social Insurance, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Reflections On The Historical Context Of Section 402a, Oscar S. Gray

Faculty Scholarship

No abstract provided.

A Proposed Revision Of Section 402a Of The Restatement (Second) Of Torts, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Progress Is Our Only Product: Legal Reform And The Codification Of Evidence, Michael S. Ariens

Faculty Articles

Twentieth century reform of the American law of evidence was initially premised on the ideals of legal progressivism, ideals splintered by American legal realism. In preparing the American Law Institute's Model Code of Evidence from 1939 to 1942, Harvard Law School professor Edmund M. Morgan attempted to reconstitute the framework of reform in light of the challenge of legal realism. The Model Code was based on granting greater discretion to the trial judge and changing the goals of the trial from a search for truth to a "rational" resolution of disputes.

Morgan’s decision to emphasize the rational resolution of disputes …