 This is an audio-visual interview with Professor A. James Casner. It is taking place in the Mayflower Hotel on May 16, 1990, during the ALI's annual meeting. Professor Casner yesterday submitted his tentative draft on donor transfers, completing more than a half-century of service as an ALI advisor, reporter and consultant. Jim, if our research is correct, you started with the ALI as an advisor in 1936 dealing with Chapter 7 and the general vision of Volumes 1 and 2 of the first restatement of property. How did this association start to come about? Well, I'd like to go back a little bit before the dates you mentioned in 1935 and 6. When I was teaching at Maryland, the first contact I had with the American Law Institute was doing the state annotations to the restatement of agency. And that's what brought my attention particularly to the American Law Institute. But my real work for the Institute, of course, came a little bit later, as you suggested in your comments a moment ago. The way things developed for me was that after teaching in Maryland from 1930 to 1935, I felt the need of doing some graduate work at some place. So I applied for a graduate fellowship at Harvard and I applied for one at Columbia. I received an invitation at both places, but the one at Columbia attracted me more because of the person who was then the reporter for the restatement of property, namely Richard Powell, professor at Columbia. Because my field of interest was property, I had been teaching property for some six years, so I can just progress for a moment how I got into teaching and teaching property because that was somewhat accidental too. I was graduating from the University of Illinois College of Law in 1929. And of course Paul, you're too young to know what the general economic condition was in 1929, but it was rather difficult to get any job as a lawyer. If you got one, you did rather low salary. So I was asked by Jim Harno, who was then dean of the law school, to stay on after graduating in 1929 from the College of Law and teach the courses that were being taught by a professor, Walt Summers. And they were all property courses. So that it was accidental that I started teaching in property at all because to take the teach during this one year absence of this professor. And I was offered a salary of somewhat like $4,000 to teach that year. And the job offer I had to go into practice was $150 a month. I was married and so the money induced me to go into teaching although it never occurred to me before then to go into teaching. After teaching for that year, during the course that year, I went to the sort of slave market that we had of our teachers that people want jobs, the teaching would go, and the meeting was down in New Orleans, the meeting of the Association of American Law Schools. And while I was down there, I met the then dean of the University of Maryland Law School and they had a vacancy in the property field and they invited me to come to Maryland. Well, that was another development that never occurred to me at all. In fact, on the way down to New Orleans, I stopped in Atlanta and visited with the law firm of Sutherland and Tuttle and the idea of going to Atlanta in the practice of law at the end of the year at Illinois. But I went on in New Orleans and I got this offer to go to Maryland and I accepted it and I got a rather substantial raise in salary and this was during depression, I mean where people were not teaching and getting jobs. So again, the money side of the thing sort of induced me to go to Maryland and not give up and go out into practice. And so after five years at Maryland, as I indicated earlier, I felt the need of getting away and doing some graduate work and I ended up at Columbia for the year 1935-36 and worked with Dick Powell, the then reporter for the restatement of property. Dick evidently took quite an interest in me because he invited me to attend some sessions of his meetings with his advisors during that year and I went to several meetings and was asked to stay on as an advisor for what was then Chapter 7, as you indicated, and the general revision of the first two volumes of the restatement. And I worked in that capacity but at the end of my year of graduate work at Columbia I got the offer from Illinois to go back to Illinois as a teacher. But there was no opening in teaching property. But I wanted to go to Illinois again, my family was there, I grew up there and so it was a natural thing for me to want to go back there. And so I went back to Illinois and took on teaching constitutional law, public utilities and other public law courses, no property courses. But at the same time I continued in my capacity with the restatement and I would teach public law all week and go on the weekends, go out to one of these property meetings with the restatement work. So I kept up my interest in the property field as a result of that. This was in 1936 when I went back to Illinois after finishing the year of graduate work at Columbia. And after, in the summer of 1937 I guess it was, I was asked to go up to Michigan to Ann Harbor to teach in the summer program. This was obviously a look-over job. I mean did you use summer teaching, summer teachers that they invited didn't look them over. And Dean Station was then the dean of Michigan. And we spent the summer there at Michigan. It was very enjoyable at Ann Harbor. And Professor Martin from Ohio State was there. He was another property man. So we had a very enjoyable experience. I remember doing those days particularly at Ann Harbor. If you wanted to have a drink you had to pull the shades down in your house. And we found after being there a while there were only a few places where if you were invited out for dinner that you'd get a cocktail anyway. And it was a pretty dry area. But I enjoyed Ann Harbor and I went back to Illinois. I didn't get any prominent invitation to stay at Michigan, but I went back to Illinois at the end of the summer teaching. And then I got the offer during that period to go out to Stanford in the next summer. And it was again obviously one of these things where you were going around to summer teaching to see if you could make an impression on somebody that they might give you an offer better than the one you had. And all this time I was still working on the restatement even though I was teaching in the public law area. But both at Michigan and at Stanford I was back teaching in the property field in the summertime. And on the spring of 1938 before I went to Stanford I got the offer to go to Harvard. And of course the offer to Harvard was largely due to the fact Bart Leach who was one of the members of the group on the restatement of property that I had been working with. And if I hadn't been on the restatement work and hadn't met Bart Leach or been double other, I would have ended up at Harvard. But anyway, we got this offer in the spring of 1938 to go to Harvard. And so the trip to Stanford was just a lot. We didn't have to feel we had to impress anybody. And when the summer was over we had to go all the way from Palo Alto across the country to Cambridge. And I was to teach in Harvard in the property field again so I was back home where I belonged in that regard anyway. We arrived in Cambridge and about a week or so later the 1938 hurricane hit Cambridge. And it was really a very demolishing hurricane. But we lived through that. When I was invited to go to Harvard I asked for a leave of absence from Illinois because I was on tenure at Illinois. I was an associate professor with tenure status and they granted that to me for one year. And I went to Cambridge in the status of a visiting professor. There was no permanency attached to it. But at the end of the first year at Cambridge the question came up as to whether I would go back to Illinois with my visiting professorship at Cambridge at Endon. And I was asked by the faculty to stay on not on a tenure position but to stay on as an assistant professor without tenure status. Well I had to face the decision to give up a tenure position at Illinois or stay on at Harvard for what was another trial period. The first year that I went to Harvard in 1938 I was about the only visiting professor I think on the premises and I was the first time any young man had gone to Harvard who wasn't I think a graduate of the Harvard Law School. They had had some senior professors like Ralph Baker who was at Pennsylvania they'd come up but they were senior men when they came on the faculty. And so it was somewhat of an experiment for Harvard to see whether anybody that hadn't gone there to law school could be acceptable and raise the comp to the standard that they expected. But as I say at the end of this first year they asked me to stay on as an assistant professor without tenure status. At that same year there was added to the faculty three other men one was Paul Freund and one was Milt Katz and the other was Lon Fuller. So there were four of us that had the status of assistant professor but I was in the second year of being there and they were then their first year of being there. At the end of that year in 1939 I guess it was I went there in 1938 at the end of 1939 they had to make up their mind what they were going to do with these four people that were on the status of assistant professor because at that time unlike it is now you either made it in a hurry or you didn't make it at all they made up their mind pretty fast because they didn't have assistant professors hanging around there very long. And so there was a long faculty meeting near the end of 1939 and it was quite clear that there wasn't any problems so far as Lon Fuller was concerned he was nationally known for his work in jurisprudence or Paul Freund who was a graduate of Harvard Law School and Milt Katz. But I found out afterwards that the most of the meeting was related to me as to whether I would stay on or not but they finally, I guess, of a considerable objection from some people I never inquired who they were took a chance and I stayed on and of course I made a full professor at the end of 1939 and stayed there in that capacity and I retired from teaching at least in 1977. Harvard was never the same after that? I think probably not. Of course since then they've at least taken a chance with other people who didn't get their undergraduate work but you know when you got on the faculty at Harvard Law School they still didn't want it to be a person that didn't have a degree from Harvard so they gave me a master of arts degree when I was a given tenure and therefore they could still say that nobody is teaching at Harvard that didn't have a degree from Harvard at least. I don't think they do that anymore. But to get back to the restatement work we, going back to 1936 when Bottoms 1 and 2 were published as you indicated earlier I worked as an advisor on Chapter 7 and an advisor on going over the whole entire two volumes because they had been some years in the process of making. In fact they restaped it from these Bottoms 1 and 2 started in 1927 and Harry Bigelow of Chicago was their original reporter and when he became dean of Chicago I think in 1929, around that time Richard Powell was made the reporter to succeed him but Bigelow stayed on as one of the advisors to the restatement. You're quite right. It says Bigelow reporter January 27th to June 29th. Right. And that was an extremely interesting experience for me because as a young man I found myself attending meetings with respect to these first two volumes of the restatement and the list of reporters, I mean advisors was almost a who's who of the professorial people of that time. One of the advisors was Harry Bigelow he stayed on as advisor. I don't know whether, I guess you never knew Harry Bigelow, but he had a kind of a tic and when we talk his head would do like this all the time and therefore you couldn't be sure whether he was shaking his head at approval or until he started to speak but it was something that when you would talk directly with Harry and he'd start to shake his head your head would almost start shaking to you but he was a wonderful person a magnificent person. There was also in that group that initial group that I was fortunate enough to work with Charlie Clark who later became Dean of Yale Everett Fraser from Minnesota of course Dean of Minnesota later Warren Madden from Pittsburgh Ollie Rundell from Wisconsin Symes from Michigan and a practicing lawyer named Sims from someplace down south but that was certainly the cream of the crop so far as property teachers were concerned and in addition of course there was Bart Leach from Harvard I think it's interesting that there were always, as I look at this list two practitioners, Sims and a chap by the name of White White of course I was I never got to know him particularly but Sims, Upson Sims attended lots of our meetings but this was entirely a pedagogical group, there's no question about it that's a little different today most projects have quite a few practitioners as well as academics Yes, that's true but I still think the academics pretty well predominate in the kind of work that it's done and the leadership that's established back in those days you wouldn't think of having a reporter that wasn't a professor but I think now there are reporters that are not professors Was Lewis in attendance at these meetings? William Draper Lewis was the director and of course he attended all of them and many of our meetings were up at his place up in Maine it wasn't the Bar Harbor but another name that ended in Harbour, Northeast Harbour and he had a big house up there and so in the summer we always went up to a place called Astakoo Inn which is at Northeast Harbour and had our meetings there and he of course presided as the director of the meetings, at least he was there at all of them William Draper Lewis was a very interesting person he never remembered your name and in fact he almost invented names he's calling on somebody and you have to respond and there's no sense in trying to correct him because he wouldn't remember it the next day for some reason he just didn't bother with names It's like Buddy Ryan, the coach of the Eagles he remembers the names of his players he gets them nicknames Well that's about what William Draper Lewis did we had a meeting one time in Cambridge of this group and Mrs. Lewis was along and we had a gathering an evening out at our house in Belmont and it was in the winter because there was all snow on the ground and we lived up on a kind of a hill and a steep incline going down to the road and when the taxi came for the Mr. and Mrs. Lewis I tried to help Mrs. Lewis down this terrace down to the taxi and we slept and we rolled down the hill together all the way down this hill to the taxi cab and she was a good sport and didn't mind that very much at all Did Lewis participate extensively in the meetings No unlike Herb Wexler as a director and certainly like the present director Hazard Jeff Hazard he just more or less presided he didn't really take an active part in the discussion his technical field was not the property field anyway but he didn't do more than just sort of presided the meeting and keep order but I don't recall offhand any real contribution he made to the substance of the material that we were talking about Did Goodrich do more than that when he was director? Not a great deal not a great deal not nearly the extent to which Wexler and Hazard participated in the formulation of really important decisions from time to time with respect to the material and that is true even though Herb Wexler was not a property man he was of course in an entirely different field and Jeff Hazard's background is not necessarily in the property field but they both had a knack of seeing what was really causing the difficulty that we were arguing about and being able to step in and make a suggestion at least that would move the thing along and that's a real art of course when you're not versed in the field technically to be able to sit in a meeting and follow what's going on and then make a contribution that the experts haven't been able to work out for themselves and I think I think that technique did not really develop until Herb Wexler came along to any great extent I think Draper Lewis and William Draper Lewis and Herb Goodrich probably didn't think of themselves as not being their function particularly How about the presidents were they like Pepper, Senator Pepper did he attend these meetings at all or? He never attended the meeting of the advisors of course every time I was up on the platform presenting material at the annual meeting either George Wharton Pepper presided during the early years here or sometimes Judge Hand Leonard Hand presided I remember one time when I was up there when Leonard Hand was presiding at the annual meeting and somebody got up and made some kind of a long statement and Hand sold at the side of his mouth how do we shut this guy up he was not disrespectful I mean but it was just that there's some way to get the meeting going forward rather than listening to somebody with a long harangue about something that he didn't know much about he was talking about himself probably now these two volumes first two volumes of property were published in 1936 and then we went on to volumes three and four going back to volumes one and two I prepared the index to volumes one and two and if you've ever prepared an index it's really quite a job but they thought somebody that was familiar with the terminology and so forth would be able to do a better index than somebody that was completely outside of the fold so the first time I ever prepared an index was for the volumes one and two and I think it's the best index of course there's no question about it but when we went into volume three which moved us into the area of powers appointment, class gifts and so forth I had done my doctoral thesis at Columbia on the subject of class gifts and so it was perfectly natural for me to probably give me some more significant role in dealing with that particular area of the law and in volume three I served as an associate reporter on certain segments particularly in the areas where class gifts were the subject of the discussion at Columbia in order to get your doctorate degree you had to publish a doctoral thesis at that time I don't know whether that's still true or not but I finished my graduate work at Columbia in 1936 when I went from there to Illinois but I didn't finish the doctoral thesis until sometime later I think it was about 1940 so my sketch of my degree shows me getting my doctorate degree at Columbia in 1940 I think which was when I finished the doctoral thesis because I had to put it on one side when I went from out to Illinois to teach entirely new courses then when I went back to Harvard to teach I had to put that somewhat on the side but I was working doing some work on it all the time in connection with the restate in volume three which deals with the subject of class gifts. Did you publish that as an article? Was that published as an article? It was published as a book as a bound book on the subject of class gifts and at that time the area of class gifts was quite a bit of a state of confusion and so it was the first real attempt to bring some order out of that extremely important area because you can't make a class for very well without getting involved in a class gift because sooner or later the beneficiaries you're trying to describe will be people that are yet to be born or something and therefore you have to describe them by their membership in some class of relatives. Of course the subject of class gifts and I said earlier one time I was doing the class gift they thought that was a question of classes of society that didn't seem to dawn on most people at that time except for the terminology for gifts that were individuals were not described by names or beneficiaries of a gift rather than by work described by name because you couldn't describe and anyway if you're making a gift to your children and you ship me a name the ones that are now live you leave out some that may come in as you want to and sooner or later you've got to give your name A and B because and any other children then you get a class gift I don't remember reading an article when I was a clerk for Goodrich on class gifts I think it was in the Harvard Law Review was that yours or? Yes these articles were first published in the Harvard Law Review and then they were taken and put into a book form for purpose of carrying out my doctorate degree at Columbia. Goodrich had a tax case that involved class gifts and I think you shed all the light that was necessary for him to decide the case but it it's very interesting and then of course as you know when I got back eventually we were becoming the reporter for the reshaping of property second I developed a whole volume on class gifts that we'll get to as we continue this discussion. Now as you pointed out in your earlier remarks my tour of duty with the American law institute and the restatement was terminated by the war. You know in 1941 when Pearl Harbor came into the picture there was a total state of confusion in colleges as far as students were concerned they didn't know what to do whether they should go and enlist or whether they should stay in school and the then president colonel of Harvard thought that the sum office ought to be set up to advise students what to do. Give them somebody to talk to anyway and he called me over from the law school and asked me if I would set up an office in University Hall shortly after Pearl Harbor and let students come in and talk and do whatever whatever help you can. I went down to Washington to see what opportunities there were for people who were in the status of college students and particularly law students and of course they said there's one thing we don't need in the army of lawyers but the general attitude at the beginning of the war there's of course the jobs for court marshaling and things of that sort for legal people were involved but lawyers as such didn't seem to have much to contribute and the most advice I could give these students when they'd come into this office I'd set up where you are and calm down stay where you are, don't jump too quickly if they want you they'll come and find you but just stay until things shake down and see what and many of the students did that some went off but not many but I was sitting in this office one day in 1941 later on right after Pearl Harbor was 1940 this was spring of 1941 and President Conan's office called me on the telephone and said there's a Colonel D. Rohan over here from the intelligence, army intelligence in Washington and he's looking for some people but you talk to him and I said you're sending him over, I'll tell him what I can talk to him about anything he wants to know and I said what are you, he came over and I said what are you looking for he said we're looking for some people to come in and analyze the German battle tactics to form the basis of a training manual for our troops I said well I said you're not just looking for college students I said oh no, we're looking for for people of some status and I said well what are you offering to induce these people to come into army intelligence in Washington and he said we're offering two majorities, that is two majors and two captains four of you we want and I said alright we only need one more major and he said you'll go I said sure I'll go and so I said there's only one condition the other major I'll bring along is a colleague of mine at the law school named Bart Leach but I want to be sure my commission comes over ahead of his so I will outrank him and they had no difficulty in doing that and so I always outranked Bart we both went in as majors I became a lieutenant colonel before he did I became a full colonel before he did and he stayed in though after the war was over until he became a brigadier general and that's how he finally got to outrank me as far as the military service was concerned we were of course always very close friends every time he got a divorce he came to live with us so my children thought of him as their uncle or something and we of course wrote right after the war we wrote a case book together it has had pretty good success Casner and Leach Cases and Text on Property but to get back to my story the war interrupted I went overseas in 1942 not long after I went into the service because we went down to Washington and analyzed the German battle tactics and did the work they wanted just to do and then I decided that I wanted to get out of that and get into a little different kind of activity in the service and somebody told me they were organizing a command out at Bowling Field to go overseas and so I went out there and saw the general who was organizing the command and he said do you know anything about Air Force equipment I said no but I can learn and he said all right here's an OEL it's an organization equipment list for this whole command it's got to be in the Brooklyn Navy Yard for loading for shipment overseas in such and such a time and he took me in as what we call A-4 of the command of the headquarters command which is like in the Army G-4 which is the supply and so forth section of the work of the headquarters unit and so I found an Air Force sergeant old timer and I said because there wasn't enough equipment to go around at that time I mean you had to go fight for what you could get and I said you find out that the warehouse is this equipment is located and I'll get some trucks and see it go down and get our equipment of course it was silly to do it because that meant one command would be fully equipped the other wouldn't get anything it wasn't spread around evenly but things were in a state of confusion you just couldn't imagine why so you had to go for yourself and we got an award as being the first command running overseas the best equipped command landing overseas in fact we went down and got it in the head of them there's a cast in our achievement so we went overseas and we set this command up in Northern Ireland it was a training command flyers would come over and they would be sent to bases in Northern Ireland to learn to fly in that in that atmosphere and then they would go on to bases over in England and we were there for several years in Northern Ireland and we were able to get along because they couldn't set up British things there because there wasn't the animosity between the British and Northern Ireland even existed then so the job of developing this was large to America because we got along all right some of our flyers would come over fly B-17s over they'd see land and they'd come down and they'd be in Southern Ireland and we had to go down to Southern Ireland and get them out and Southern Ireland was of course neutral and they should have been really I suppose locked up but they operated by certain things that we left there to let them come out so we would bring them out and bring them back up to Northern Ireland and get them back where they belong I remember sitting in the Gresham Hotel in Dublin and on one side of the room were German officers and everything there just the same as we were we were all in civilian clothes though when we went overseas this command we'd flew over and we landed at Limerick in Southern Ireland in civilian clothes but in our bags were all our military equipment covered over the sheet and when we went to inspection they knew who we were they'd open the bag and they'd close it so Southern Ireland in a sense helped us more in ways than they might have if they had been belligerents because we got quite a bit of assistance in moving our people around to that part of the country but I finally right after V.E. Day I asked if I could go home I'd been over there from 1942 until 1945 and I was anxious to get back I hadn't seen I hadn't been I had flown back once to headquarters to present some plans that we were working out because I moved finally into the planning for the taking over the government of Germany and others when the war was over and we became a planning division and I'd gone back to present to Washington the plans that we'd been working on for moving in to take over command when we finally had an ultimate victory but then I went back that's the only time I of course saw my wife and family out for three years was the few weeks and when I came back to Washington then when the war was over though I said well I've had enough I want to go back and go back to teaching again so I was relieved and Europe and sent back to Washington when you came back at that time they gave you what they call rest and rehabilitation leave and I was sent to Atlantic City where I could take my wife and children to sort of be rehabilitated every time you went to when you landed in Europe you had to go through this medical report and take you in and show you what horrible things would happen to you if you got certain kinds of diseases and I saw that sex lecture about five times I think during the war and it's true it scared the hell out of you I mean it does do what might happen to you but after this rest and rehabilitation I thought they were going to let me out but they sent me to Washington to headquarters to work out a plan at the end of the war to make as a career make a career in the Air Force attractive for non-flying officers I was a non-flying officer and but they knew to build up the Air Force that they weren't going to be able to build it up solely with people who were flying officers and so I spent the spring of that year until VJ Day in Washington working up the plans for trying to make a career in the Air Force attractive for non-flying officers and I finally got it approved by General Arnold and I said now can I go home and so I was relieved and got back to Cambridge in time to begin teaching in the fall September program at the law school and we worked on that on a year-round basis so we taught fall spring and summer for several years so the people coming out of the service could catch up in the time that they had lost and that was a very time-consuming job so there wasn't much time to do anything but teach as you went around the clock you came back when it was 45 VJ Day was around September I've forgotten exactly around Labor Day right after that that I was relieved had finished my assignment in Washington we lived in Washington and Margaret my wife and the two boys came down here to live with me over that summer when I was here in Washington working on these plans like the Air Force Attractive was a career when I turned it into the generalize that this makes it attractive for a career but it's not attractive enough for me How did you get an apartment in Washington? How did you get a place to live in Washington? Well I was getting my friend Bart Leachy he had been down here and they were giving up a house that he had had because he was doing something out of things all this time so we moved into a house that he had had it was out here near near the hotel Wardburn Park? We were in Washington from 44 to 47 we lived in 13 places I'll bet you did we were fortunate to get this one place throughout that entire summer and and that sort of got us back to somewhat of a normal life but the normal life didn't really resume until we got back to Cambridge in the fall of 1945 and I started teaching again right after VJ Day Did you get right into the restatement again then? Well you see at that time the first restatement, Volume 4 had been published, it was published I think in 1944 so there really wasn't any restatement work right then of the property nature going on that I would have been naturally to be concerned with and I didn't get back to restatement work until restatement of property 2 got underway but in the interim time I got other kinds of American Institute work because the tax area started to move into the picture Well I understand you were an advisor well this was 55 you became an advisor in trust Oh yes I had done that where Scott was working and now I appear as one of the advisors and some of the public's volumes of the restatement of trust but I and that was in the 50s I had that much but the property restatement work didn't really begin until restatement of property 2 But in between there was a whole project on federal, state and gift tax sorry it was appointed as the overall seer and the institute decided it ought to get into the tax field in various ways there was corporate tax but the state and gift tax and the income tax sub chapter J on trust in the states became a topic under CERES overall management and I was selected to be the reporter for the institute project on state and gift taxation and that volume was published I think I've got it here someplace about when 68 or so that was the one that was published in 68 and we had been working on for some time I remember your first draft created a lot of consternation well this was the problem of consternation grew out of the fact that I pointed out in this draft and tried to develop in this draft the idea that you had to pay a tax every generation to avoid in other words this was the beginning of the doctrine of generation skipping tax in the position of of tax that you couldn't by setting up a long-range thing that would go for 60 or 100 years avoid an additional state and gift tax and it was quite a if they had paid attention to us in 69 when this came out we wouldn't have all the complications we got now what we proposed and the institute adopted was a plan that if you set up a property disposition that would go on from generation to generation you would pay an additional tax when you set it up estimated on the basis of the taxes you were avoiding which you'd pay it up at the beginning and then no complications as it moved generation to generation it was a very simple thing and now of course they didn't accept that and they tried to work out a system and we now have the extreme complexity of chapter 26 of the internal revenue code on generation skipping but we we got our report out and of course that was can you shut that off for a minute we can cut it off don't worry we can excise as part when we come to it take your time I had as an assistant as you know Bill Andrews of my faculty and we turned him loose on the development of the accession tax well I continued to work on a straight gift in the state tax but taking into account the problem how you handled the generation skipping problem well that material was published and it certainly had some effect I think on the development of the tax law but they didn't adopt what we had proposed and I think that was a mistake because it's caused extreme complexity and it wasn't until some years later that you got taxes involved taking care of the generation skipping problem and then it was in this very complex state well you really as I remember with your first preliminary draft even well of course the idea that I was proposing was one that they fought bitterly that is that we ought to be allowed to skip generations if you affect and it was such a drastic change in them at that time in the policy and by fighting it they knocked it down and they got something worse eventually it frequently happens that you fight and started out maybe a much more lenient and sensible doctrine and what finally develops when they try to iron out all the complications that are involved in generation skipping transfers I think the war must have done something to you because after that each of the projects for the institute that you undertook something very significant different and important came out starting with the federal estate and it was of course landlord and tenant so we get to that in a little bit because that started around 1970 and we just finished this tax thing in 1969 and then we also had another tax thing that I was working on didn't come out until the 80's that's on the sub chapter J income taxation of trust in the states you started in that I think in 1979 it was actually published in 1985 1984-85 and that was going on at the same time as my work for a restate but a property second I was running two horses I think you set a record as a the only reporter that ever was a reporter in projects for the institute at the same time I think that may be true I think that may be true now early in 1970 though they decided that they ought to do something about property restate but again and at that time Dick Powell was still alive and was reasonably active and when the institute came to me they said will you work up a study as to what ought to be done in general terms in going through a restatement of property second with the material that was covered in the first four volumes and so I went to work on a study with Dick Powell to do it but I talked to Dick about it Dick was then this was 1970 I forgot how old Dick would have been but he was still around he was reasonably active and I was concerned about taking on the restate but a property second and hurting Dick Powell because I had been in a sense his protege in some ways and worked with him closely and he gave me every opportunity that I had to work in the first restatement as a very young man and so I thought we ought to start doing the restatement of property second if we could on something that really wasn't covered in the first restatement and I suggested to the council that we start with landlord and tenant because landlord and tenant had not been mentioned in the first restatement except in connection with describing the different estates at different tenancies such as the tenancy for years and tenancy at will and from year to year and so on but rather brief and that would not be redoing something that Dick Powell had done and I thought it would be better such as it should be done anyway that if I could start with something that would not be going and redoing the work that he had done that it would not be as serious a front to to Dick because I certainly didn't want to hurt him and that's how we got and the council I didn't go into this analysis about not hurting Dick Powell in connection with the presence of the council but I thought it was a sensible place to start anyway and the law of landlord and tenant had evolved to a significant proportions from what it was when we did the first restatement so that's how we got started in 1970 on the volumes on the restatement of property second landlord and tenant and those two volumes were worked on for seven years from 1970 approximately to 1977 and they made some very significant contributions I think so yes I think it's been very interesting and we had a number of real experts in that field as advisors as we made up more practicing lawyers and almost any other set of advisors I remember the bane of your existence Mr. Friedman yes they were and they were somewhat resistant to some of the things that were being done but I think those two volumes as far as I know have been a significant contribution to the landlord and tenant area landlord warranties implied warranties is a fitness for particular purposes which is a development to a considerable extent which was throwing greater burdens on landlords than previously in connection with certain transactions so that the landlord bar was somewhat resistant to some of them things we were doing but I think that's a good job that was done I think it's one of our best but there was some really good advisors on that that people that knew what they were talking about in that field I have the photograph in the office I think I sent you a copy of a color photograph that we took at sea view of you and all the advisors now we're up to 1970 to 77 I might just skip back a little bit because I got involved rather heavily in the problem of lecturing to lawyers post-legal education back you're of course heavily steeped in this problem have been for a long time but if you put yourself back in the early 1950s there was very little going on in the way of developing arrangements for lawyers in a sense going back to school and I conceived the idea in 1953 when the American Bar was meeting in Boston for the first time it hasn't met their sense I think it's going to meet there in a couple of years now having Harvard put on a course for lawyers coming to Boston to go to the American Bar Association and we gave the first Harvard program of instruction for lawyers I was the director of it in 1953 we gave two courses I gave the one on estate planning and Louis Laws gave the one on in his field on incorporations and we had a very large group but at that time if it was not the use today you'd think this was going on all the time but the idea of lawyers going back to school again in effect get some additional training after some years out was very new at that time and that was the beginning of Harvard getting involved in it and of course I remained as director of the Harvard program of instruction for lawyers from that date until 1977 1976 I guess was then Louis Laws succeeded me and Professor Hurwitz is now running the program I still teach in it I'm teaching this summer in the program but I think that's been the most successful of the law school efforts on a continuing basis over a long period of time we get from now from between six, seven hundred coming in that got you into trouble with me though I got you into trouble teaching when you came to Philadelphia yes I know of course I didn't just lecture in that program I would go around the country giving lectures to Mr. Brown I think I was just overdoing and of course I ran into the problem in Philadelphia that you got me there to give a course to lawyers that were here in Philadelphia and I remember that the first I was teaching three days and the first two days went along all right and we went out to dinner and had a big dinner and I was feeling fine went back to the hotel and I went to get up in the morning and I fell on the floor and I thought my leg and arm had fallen asleep like you know but I found it didn't wake up anyway and of course I ended up in the hospital with a stroke it was 1984 I remember and it had knocked out my left arm my left leg but it didn't affect my speech you know if you get a stroke on the right side it affects the left side but the speech side is on the left side and fortunately if you can talk or you can do almost anything when you can't talk that you get into difficulties I always marveled that it really didn't slow you down but now we're through with the restatement of Landlord and Tennant and we then come to what we're going to do now in connection with the restatement of property second by this time I think it was obvious from the age of Dick Powell that he was not going to be concerned about somebody taking over the work that he had done and going over it again but I felt in looking at those first four volumes that we did not really need at that time to redo volumes one and two they dealt with the basic development of the states and land and things and that basic development hadn't changed significantly the area of real development that I thought needed more immediate attention was the area covered in volumes three and four of the first three statement and of those I thought the first thing we ought to tackle was what was done in volume four because I thought we were really ready to get the bar to come along for the wait and see rule on the rule against perpetuities and this was a golden opportunity to try and and get some sense into that area with respect to the rule against perpetuities so we started with the material in volume four of the first three statement to become volume one of the second on-donative transfers which was largely developed on the rule against perpetuities and the famous debate and then it was at this time after we developed this material that Dick got quite upset about tinkering with the rule against perpetuities that had been so admirably presented in the first three statement and we had it was arranged that he would have the floor of the institute to oppose the adoption by the institute of the proposal that under my reportorship had been worked out on the wait and see rule in connection with the rule against perpetuities and I remember that ballroom at the Mayflower Hotel was packed for two days while we argued about the rule against perpetuities I thought was one of the most amazing things that that particular subject matter demand that kind of attention and excitement and when the vote was taken and they voted in favor of the proposal I had made on the wait and see rule I really felt very sorry about it because Dick came to me and he said well you beat me Jim and that was a pretty it was just it was almost a sad thing for me in some way he didn't get any help from his colleague from Columbia not very much although he got little help from some of them but there was one that I think really did him in but it was just it was one of the saddest moments of my life to win something and then I feel so upset about it because he was he was a great person and of course if you knew Dick Powell when he presented something it was done very vigorously it was done very positive it was quite a great deal of dynamism and force and I felt so much responsible to him for so many things that happened in my life that it was not a pleasant thing for me to I never goaded over the fact that it went across of course the idea of a wait and see statute rule really originated with Bart Leach he wrote some articles and he and I along with some others got a statute passed in Massachusetts which was a modified wait and see statute so that we had done some work outside getting acceptance of the thing and the bar generally didn't oppose it because it made it easier for them to ward malpractices in the sense because they get caught in the old rule and the old rule it devastates you I mean the wait and see rule at least gave you a chance and we always took the position that if you didn't qualify for the interest after waiting and seeing then the court should revamp the disposition so that instead of castling out the whole thing they would give you an alternate disposition that would carry out to the attention of the test editor the best of the ability at that time and of course that sort of reformation principle has been carried over now of course the wait and see rule swept the country and the restatement started it and it's been done by statute in many states it's been done without data statute and of course the present uniform commissioners now propose a modification of a period of 90 years a flat 90 year period you wait and see instead of having to have a wait and see tied into lives and being in 21 years and that has caused some problems and because there's been some criticism of the 90 year rule in light of some tax traps that may get you into and Duke Munir has been writing some articles about how the uniform commissioners may have created a problem and that's something that's now under consideration but I don't think and that's a statutory change there's been no promotion of no developed by case law of a flat 90 year rule so that I don't think that part of our restatement needs to be revised except that possibly there should be some some annotation maybe the fact that there is a proposal that's been adopted in some states for a flat 90 year rule for waiting and seeing let's get back to taxes a minute you made a significant contribution to the marital deduction business didn't you with the total yes that was a part of the tax study we were doing was to get an arrangement which we now call the Qualified Terminable Interest where you don't have to give the person the power give the wife the power to a part of someone else where she can give the spouse and the wife or the husband as the case may be a straight life to stay without any power to change it still have it qualified for the murder that idea started back with our material and now of course swept the country and you made some important changes with sub-chapter J too I think he has to hold development of income taxation of trust in states as it's now evolved and the development of the throwback rule all was a part of the study that we did on sub-chapter J and that I think has had considerable influence on the tax law of course Surrey was a great leader of that whole movement as you know Stan Surrey, a colleague of mine that everybody knew had been steeped in the tax law for years and I was sitting next to him because he always sat with me when I was up as the reporter he was director of the whole project when he had that stroke or something something where he blacked out and got into difficulty and he was sitting next to me and I turned to him and I said ask him a question I said stupid answer the question he was out sitting next to me right on the platform there Stan Lee did a lot for taxes through the institute over a lot of opposition for a while Mr. Miller Robert Miller of Washington was very against us on some of the things we were doing and he was a rather powerful figure in the tax bar at that time very powerful and some people thought that the things that I was advocating were really fed to me through Surrey I think other than I was the mouthpiece for Surrey but that was not true because Stan's strong fort was not in the estate and gift tax area it was in the income tax area Morris Darrell got a study in taxes even before he was on a council and then they got Surrey and Warren to do the first federal income tax study I didn't come into the picture until they got on the estate and gift tax then they wanted the estate and gift tax see through this period of time right after the war I developed the first course that was given in any law school on the subject of estate planning we it wasn't that the material that was involved in estate planning wasn't being taught but it was being taught in property in a separate course in trust in conflict of laws in income taxation in estate and gift taxation there was no attempt to bring that all together and think it through in the process of doing an estate job and I gave in 1948 the course at the Harvard Law School in the estate planning and it was the first time that course by that name had been given in the law schools well that of course is swept the country but I started to work on at the beginning of that time on what is now my treatise on estate planning which is going from one volume in 1951 or two into nine volumes now on the subject of estate planning it tries to coordinate these various impacts upon the estate planning decisions that are made and that was when I was lecturing throughout the country the lawyer was always on something in connection with the estate planning in particular the tax aspects of estate planning Jim how important do you think the contribution of the institute has been to development of American and tourist prudence? Well I think I can only speak with some degree of knowledge of the field that I'm concerned with and there's no doubt that through the mechanism of the American Law Institute we've had tremendous influence on the development of the property you can write articles here and there and so forth and they have some impact but it was the organized effort of the American Law Institute to deal with the statement of law and including in the statement of law to bring out the needs for reforms and so forth that caused practically everything that's happened there's significance in the property field to have been brought to fruition now what it would have done if we didn't have the American Law Institute I don't know maybe some other mechanism would have been found but it needed some kind of national push now whether it's had the same significant effect in other areas I'm not really too much of a judge much of being capable of judging but I think I think the original idea of the restatement of the law which in the first restate it became a mechanism of defining deciding what the weight of authority was and stating the weight of authority and not opening the door to very much criticism of that didn't really help it get off the round as much as later when they got the development that we could we could criticize existing law we could even suggest that the minority position was the one that the restatement adopted and that more came along a little bit later the first restate was pretty much you found out what the weight of authority was and that's what you stated you could argue over what the weight of authority meant because Paul I know would say well I think if we had decisions from New York and Pennsylvania and Illinois even though there may be some adverse decisions someplace else the weight of authority the weight of authority wasn't necessarily a nose count and that was injected somewhat in the restatement of property instead of moving out with something entirely formed to what it was a predominant authority in the country and stating it as the restatement like we did in really against perpetuities didn't come along until we were working on the second restatement pretty much Goodwin started some of that development and then Herb carried it forward Herb always said and I know some of the things I've done I'll go back to what Herb said first of all take a statutory policy and say that that now has become such a policy that courts ought to do it without the aid of having a specific statute and that's how we got some of the things in the restatement and in this work that I've just been finishing on where we have pointed out that the policy evidence by a statute should be carried over in the situation not covered by the statutes when those situations are identical in respect to what has been. That's how I've gotten into this problem of substitutes for a will that I was talking about yesterday how that those should take over the policy that is evidenced by statutes that are in terms of going to wills when you've got substitutes for a will that are so similar. Do you think that the membership today is less resistant to change than it was when you first started a piece of account noses in those days? There were some that you would always know how they were going to vote almost and there was something anything that changed lawyers were afraid of being educated out their knowledge of being educated out out of the institute oh yes we had much much more resistance to change it seems to me than the present bar because the present bar I think has gotten adjusted somewhat to the fact that law is an evolving thing it isn't necessarily static and therefore you've got to expect sensible changes to be made from time to time. One of the things that has slowed up the work of the institute somewhat is the widespread development of statutes see the uniform commissioners on state laws they have taken up some of the cudgels here and developed various kinds of statutes in the field I've just been working on the uniform probate code deals with most of these problems what I was trying to do was to say what a court could do even if they hadn't gone to the statutes that the courts ought to be able to move and develop the same principles that sometimes many people they can only be done by statute and that idea still hasn't been fully accepted by a lot of people the idea that I said last week that I thought a court could render a statute obsolete a court could decide that the statute was passed at a time to accomplish certain things those conditions have changed and the court ought to rule that that's true that the statute is no longer effective that's still a shocking idea to a lot of people I wasn't able to get it across I think if you stayed around for a couple more decades you might persuade them that there's some validity to that proposition that's the reason we get so many laws on the books, it's hard to get the laws off the books sometimes to the legislature to repeal them and that we would be able to get off from under some of these laws that were passed some time ago that no longer really makes sense and might have changed conditions by the court doing like that case in Wisconsin that adultery that note statute an ambitious prosecutor decided to prosecute for something that just isn't being done anymore well Jim I think you've given us a pretty good overview of the development of the institute and the important part that people played in it especially someone like you Well it's been constant with me working for the American Institute since 1935 without any real gap it just seems to me it's been a continuous thing and it has fed me into various other things but they all in a sense grow out of the fact that I was involved if I hadn't been involved in the American Institute where I think my history of what I've accomplished would be quite different and the history of what the institute would have accomplished would have been quite different and not as great, thank you very much I enjoyed it and I'll turn these over you can look it over I think I covered most of the things and if I can go back for just a little bit to this development I've referred to of using substitutes for a will from time to time in place for state planning purposes the whole development that now has come into the picture of the widespread use of revocable trust as a substitute for a will really started back in 1960 when I wrote an article for the Columbia Law Review in which I set forth what I thought were considerations that would justify in a state planning the use of revocable trust rather than the going to probate with a will and that article became the basis of a movie that the American Bar Association made I think in conjunction was that solely a Bar and Bar Association project? We published the pamphlet in connection. That's right there was some tie-in with you I know and John Creedon I think in Metropolitan Life. That's right he was the one that pushed this forward and again cut up some money and there's a movie on revocable trust and I don't suppose anything has been seen by more lawyers then this came out in 1960s and went all over the country and I would follow it around giving lectures on it and there would be a local panel to comment on but it came a medium of continuing education for the Bar that was turned out and there's no doubt that lawyers got educated very quickly on something that had taken years to put across then we made another movie called the irrevocable trust and that was more complicated and got in more tax laws and that was made in the early 70s and then I revised both of those of one of those movies rather recently and I don't know what's happened to that now Who produced that recent movie? Were that the ABA too? That was the ABA that was done by that organization up in Minnesota and I did one with a professor down in Texas on a revision of the Revocable Trust sort of bringing the thing up to date and the irrevocable trust but the movie as a medium of continuing legal education really started with that initial project and of course now it's been used quite extensively and since then they've developed a lot of video tapes which is another way it's the same thing in a sense as a method of people being able to see what's going on and who's doing it without actually being present We'll have to get you down sometime to our studio in Philadelphia to do something for about 15 minutes on some new developments and we publish a little liry about going to Philadelphia We'll come to Boston after what Philadelphia did to me You're going to come for it You're now an advisor for property servitudes I am I don't know where I'm going to be I'm going to I'm going to cut down a little bit I've been going pretty steady and pretty strong and I think that while I may do work to some extent I'm not going to obligate myself to do very much today I've got a full-time job keeping this nine-volume treatise on the state planning up to date that's really a a wicked job, I've got a write-up material Who does your proofreading now? Well, I try to do it myself I don't get any help on that either I don't use any help anyway and I'm starting to revision of the Kazan and Leach case book with Susan France particularly to do the material and servitudes and we're hoping that we'll get that revised and that's a book that's widely used for teaching first-year property Are you still working on the American property volumes? The last thing I did on that was to do the supplement in 1976 and there really hasn't been any supplements since then but I was talking to Little Brown and suggesting that maybe they ought to get another supplement I think that's a rather basic book, I think it would be fully trying to take to revise the whole thing there hasn't been enough change in the basic things that are there there's a basic property principle but a supplement could make again this is one of the things I ran into that bothered me a little bit with Dick Powell right after we finished the restapement in Volume 4 in 1944 right after the war even before the war we suggested that Dick had up a group to do a text because the practice had been when you finished the restapement that the reporter writes a book like Scott did and I suggested why don't you set up a team to do it and Dick said no he wouldn't do it himself that was all right so that's how the American Law property was born was the team idea and I was put in charge of being the editor-in-chief of this and we had an array of authors you look over that list of authors and they're the people of prominence in the field at the time and they wrote different segments of the book and that was a pretty big project to keep all those horses running together to come out at the line at the same time and publish the book but that was generated largely as a competitive book to Dick's book on on property thanks again sir drop things and we'll try to put out a finished product to do course