From the American Law Institute to the European Law Institute

From May 16 until May 18 the American Law Institute (abbreviated: ALI) held its 88th (2011) annual meeting. The opening keynote speech was by Lord Phillips of Worth Matravers, who gave a brief (historical) overview of how the House of Lords lost its role as the highest court of the United Kingdom and a new UK Supreme Court was established.  Lord Phillips is the first President of this new Supreme Court. Then Stephen Zack, President of the American Bar Association spoke. He worried about how funds are being taken away from the judiciary and, more general, from the judicial system as a whole, resulting from budget cuts. It seems, he argued, as if the legislative branch, with the support of the executive branch, is marginalizing the judicial branch of government. He warned against the risks: a rule by law is not the same as a rule under the law. Minorities – and this is enshrined in the 10th Federalist Paper – should be protected against majorities, although majorities make the law.

Discussed were several projects, ranging from “principles” (on election law) to “restatements” (tort, restitution, employment law, non-profit organizations and trust) and model codes (Uniform Commercial Code and Model Penal Code). Also a very interesting session concerned possible new projects.  With regard to restitution a “guide” was discussed. The trust part concerned the last step towards finalizing the Restatement on Trusts 3rd. The whole project took about 25 years.  Interesting was the discussion about the nature of “principles”, a “restatement” and “model code”. Principles are meant as guidance for legislators and courts to solve problems encountered in practice, a restatement is guidance based upon an analysis of the laws of the states and federal law; a model code can be innovative and go against the existing laws of the states or federal law. In this setting “black letter law” is nothing to be ashamed of, as some comparative lawyers might make you believe. The black letters are the basis for the guidance to practitioners and this is precisely what these projects are all about.

Remarkable was the motion to withdraw the 2003 Amendments to Uniform Commercial Code (UCC) Articles 2 (Sales) and 2A (leases). These amendments have not been adopted by any of the states and it was accepted that no state would adopt them. Therefore – and this is unique in the history of the UCC – the Amendments were seen as rejected by the states and should therefore be withdrawn. The motion carried unanimously.

To integrate the work of the ALI more in research done by younger academics the ALI for the first time awarded a Young Scholars Medal to Oren Bar-Gill (New York University) and Jeanne C. Fromer (Fordham University). Prof. Oren Bar-Gill gave a presentation of his research on consumer psychology and consumer protection, focusing on credit cards and mortgages. Part of the prize both have won is the opportunity to organize a seminar with experts in the field of their research.

Modeled after the American Law Institute and after several years of preparation a European Law Institute (abbreviated: ELI)  has been established. The ELI was created as a legal person a few weeks ago during a meeting of the founding members in Athens. At a conference in Paris on 1 June the ELI will be presented to the legal community. A major purpose of the ELI, like of the ALI, is to give the initiative with regard to the development of the law (for the ALI: American law generally, for the ELI: European law) to practitioners (judges, advocates, barristers, solicitors and notaries). The role of academics is to provide expertise and guidance, but the impetus and practical input will have to come from these practitioners.

As one of the co-founders of the ELI and having been involved in the process from the very beginning it was a fascinating experience to attend the ALI’s general meeting and see how its European counterpart could develop itself!

~ Sjef van Erp

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