 The American Law Institute is producing an audiovisual history of persons who were active in its affairs over the years. Today we shall be interviewing Professor Herbert Wexler. Professor Wexler was elected to the American Law Institute in March of 1954 and became a life member in June of 1980. Before his election to membership, he served as reporter starting in 1952 for the Model Penal Code, a project that was completed in 1962. Following his reportorship, Professor Wexler was designated director of the American Law Institute in 1963, a position that he held until 1984. Upon his retirement in that year, Professor Wexler became director emeritus and was elected as a member of the council. Our interview today is taking place in Professor Wexler's residence in New York City at the date being April 13th, 1989. I first asked Professor Wexler what his earliest recollection of the American Law Institute was, perhaps as a law student or later on as a law clerk. I had papers about a symposium that I recall was published a lifetime ago by West Publishing Company. I think in a magazine that period was put out by the Association of American Law Schools. But at that point, the whole idea captured my interest. Did that continue as far as you were? Well, I'm talking about my first years as a teacher, really, which started in 1931. Did they use a restatement in law school in those days when you were a student? I think my recollection is that in both contracts and in torts the instructors did quite naturally because the instructor in torts was Professor Bowlin, who was the first reporter for the restatement in torts. In contracts, my teacher was Professor Holliff and Herman Holliff, who was, I think, one of the most effective critics of the whole idea of a restatement, and that was constructive, too. Was that a subsequent debate between the students and the professors to whether the restatement was worth the candle? Well, not really, I'd say. All of it, you know, was what we called in those days a rule skeptic. So anything that attempted to put anything in black letter invited his ridicule and hostility. There's still people like that. I was just looking the other day at Friedman's History of American Law, which he has some very young kind of things to say about the Institute. Yes, I think I remember. I mean, of course, I didn't think that was particularly compelling, but I guess I have a pretty good collection of criticisms of the Institute. Some of them, they seem very good. You remember the Goodrich article with Thurman Arnold, I think, was in the Yale Law Journal? The Institute. The debate you mean? The debate, yeah, about the Institute. Well, the thing that I wondered about was how come you didn't become a member before you became a reporter? Modesty. That's still a change today, people. People, you're one or two modest, ask to become members. We lose a lot of people in the Institute, I think, because we proceed on the assumption that since they're bright or otherwise able or distinguished, they must necessarily be members as well. Very frequently they're not. And the reason why they're not is that nobody has ever referred to anybody if you ask them or everybody assumes that they were members. I remember it took quite a lot of courage on my part after I'd been a reporter for a couple of years to ask Judge Goodrich if he'd propose me, get me proposed as a member. And he looked at me with astonishment and said, you mean you're not a member? And how about you? Well, I waited until, I think, John Buchanan raised the point why I wasn't a member. You didn't come forward either to propose yourself or put yourself forward. I think John Buchanan was an instrument of mind becoming a member. Well, I think your career as a director is unique. If I'm correct, you're the only one that was a reporter, director and now a council member. Goodrich, of course, died in office. And Lois, I think he may have become, I don't think he was ever a reporter. I mean, you're wrong. Yes, there was one project that he, if you check back, you'll find that he took on. And it's interesting in relation to our present problems. There was a period when early in the game, when the Institute wanted to do something in the field of business associations. And during the preliminary period, Mr. Lois, Dr. Lois served as a reporter. And you'll find in the files that there are a few kinds of drafts that he prepared. He was assisted by Professor Penn, who I knew very well, Alexander Frey. And whether the drafting was actually done by Frey and Lois by Lois, well, actually done by Lois, because I don't know. But our printed proceedings indicate the proceedings on those drafts, which are not without interest. A little bit pedantic, I thought, when I went through them. Anyhow, as you know, the project was abortive. And it's not entirely clear to me why, in the end, it collapsed. Maybe there was a business roundtable on those days also. No, as far as I know, there was no denunciation of it comparable to the stupidity that emerges from the business roundtable today. Well, I suppose that Lois was, out the check, this was made an emeritus member of the council for the period of time he had after he stepped down as director in 1947. Who would you find? Pardon me? Lois? No, but who would you find who was on deck then? Well, I can look in the records and check to see if that was, just to see whether you are as unique as I thought you were. Well, since we lost John Buchanan, our living memories don't really go back to the time when I became a reporter. Well, there are two people that have volunteered. Jim Casner, who was a reporter way back, and I ran into Milton Handler and he remembered as being an advisor. Now, incidentally, Handler is a good illustration of what we're talking about. I don't believe that he's a member of the institute. And I think that if you ask him why he isn't, he'd say that nobody ever invited him. I don't have to check that. Well, let's go to the decade of your reportorship. Why the special interest in criminal law, penal law? Well, that's an interesting question to put. I started teaching, you know, in 1931, right after I graduated from Columbia, at which time my assignment was to work up a course in federal jurisdiction. We didn't have one in the school then. There had been one years before taught by Harold Medina. But when Medina stopped teaching it for some reason, he continued teaching New York practice at Columbia for quite some years, but he didn't continue teaching federal jurisdiction. I never found out why, but it was a hole in the curriculum. So my first year was devoted to working up a course in federal jurisdiction. I didn't like Medina's book, but happily, Felix Frankfurter came out with a book that year and I was able to use that, which was somewhat better. But then I went to Washington and I was out for a year at Rocklark to Justice Stone, and I came back as an assistant professor in 1933 and a member of the faculty. When I came back it was with the idea of deroding my life to teaching and the plan that they had for me was to participate with Jerome Michael in filling another gap in the Columbia curriculum at that time. There was no course in criminal law. Hiatus tells you something about the law school, probably about the law schools of the early 1930s. There wasn't any money from the law and therefore it wasn't included in the curriculum. Well, my father had been a lawyer, was then a lawyer, and during a long career at the bar, he had practiced quite a lot of criminal law. Indeed, the most interesting cases that he had were criminal cases. His partner was a very good trial lawyer and did trial work and my father did the appellate work. So, long before I went to law school, I found myself reading his briefs in the New York part of the field but not really. When I went to law school I had no pleasure or occupation in looking up the reports of the decisions in the cases that he had had. Well, as I said, many of them were criminal cases and some of them were quite interesting criminal cases. So, given the inherent dramatic quality of the subject and that special family interest, I found that during my period as a student, I developed a quite substantial interest in criminal law and I was delighted for that reason when I got the assignment to work with Jerome Michael in developing a course in criminal law. Michael was then engaged in some great project at the time and the consequence was that it fell to me for the first years or so to get the criminal law work off the ground and I started putting together a set of materials which in the end we worked on for some seven or eight years before they were first published in 1940, I think, under the title of Criminal Law and its administration book that made a real contribution, I think, by going outside the cases and statutes and attempting to bring to bear on criminal law teaching the criminal logical and social science aspects of the subject. And it's always had been, was, then, and ever since has been one of my major interests. Well, how did the, or under what circumstances did the penal code or codification of the criminal law body institute originate? Well, I'll tell you, that has an interesting background. I'll go all the way back. In the formative days when the institute was originally being organized in the early 20s, one of the enthusiastic leaders of the movement was Governor Hadley of Missouri, and his idea was that the major work of the institute should be in the field of criminal law because of the enormous social and political importance of the subject and the fact that it was not getting any sustained, thoughtful attention anywhere. And in the beginning there was serious consideration of what the institute should do in criminal law. They soon discovered that a restatement approach was not going to be easy to work out because the subject was so predominantly statutory. And there was, in the 30s, there was a council meeting at which Judge Lernan Hand maintained heroically if you were thoughtful about it. The fact that it was statutory should help rather than enter the effort, but his colleagues were unpersuaded. And in the end the project was dropped in favor of doing the model code of criminal procedure. Somehow or other it was felt, and properly so I guess, that there was more uniformity and articulatable pattern in the prevailing criminal procedure than there was in the prevailing substantive law. But still they came up with the idea of doing the model code because you know that's one of your publications. And it had a great influence in the 1930s on the then existing procedural statutes throughout the country. There then, in the 30s, then developed within the institute a strong program to do the same thing with the substantive criminal law. There was a committee of the institute that filed a report recommending that a model code of criminal law be drafted. The trouble was though that the committee that came forward with this recommendation had the most elaborate ideas as to the procedure to be followed. And their plan called for enormous empirical studies of the actual administration of the criminal law, which they thought somehow would be the proper basis for statutory formulations in the model code. Justin Miller, a pedagogue of that time, who I think later became a judge, was I believe the chairman of that committee. Anyhow, the estimate of the financial needs of such an undertaking were quite gargantuan for the time. And of course what happened was that this was being talked about and being pushed just as the market crashed in 1929 and the depression followed and of all the institute ambitions, this was the first one to be discarded because it was the most expensive one to realize. Actually, however it was that bit of experience that Judge Goodrich picked up later on in the early 1950s I guess when he was thinking about the program of the institute and that made him wonder whether there wasn't some way to go about working in the criminal law. And he came to me, I guess among others, for advice on that subject. I knew him casually from the law school meetings in the time when he was dean before he became judge. Got to know him a little bit after he became a judge and I was, during the period when I was assistant attorney general I was concerned with times, with cases in the third circuit. But out of that grew the memoranda that I wrote and he liked the material that's published in the Harvard Law Review under the title of the challenge of a model penal code. But these were actually two, this was in the Harvard Law Review, it was actually in substance two memoranda that I wrote for the institute. The first of which was read at an annual meeting of the institute it was then 1950, maybe around there, 51, the period in which we have no published records at the moment. And those memoranda had the approval of a quite interesting and eclectic advisory committee that Judge Goodrich established. And really one of the basis on which the Rockefeller Foundation ultimately made the grants totally before they were done a half a million dollars with which the model penal code was drafted. Who thought of the Rockefeller, was that Tim Pfeiffer? No, no it was Judge Goodrich, Dr. Joseph Willits I think was his name. He taught at Penn I think. He's been the dean of the warden school at Penn and he became the, somewhere around that time, he became the director of what was called the Social Science Division of the Rockefeller Foundation. Judge Goodrich had been discussing with him whether the institute could not do something useful in the field of criminal law and whether the foundation might be interested in providing funds if some plan could be worked out. The way that developed was that the Rockefeller Foundation and Judge Goodrich's request made a small grant on $10,000 or $15,000 for the institute to pursue the idea somewhat further. And then Goodrich, I think he went first to Louis Schwartz who developed a memorandum arguing that this would be a useful thing to do and then Judge Goodrich along with Tweed and Tim Pfeiffer who was a partner of Tweed's in the law firm and had served as outside counsel to the Rockefeller Foundation. He was indeed one of the lawyers for the Rockefeller family but these three people, Goodrich, Tweed and Pfeiffer, had the main interest in this and I was retained to advise on the development of a study group and also to provide the materials that the study group would examine. Well, we did develop quite an interesting study group of academics and practitioners including prosecutors. You have, for example, Frank Pubbin's chief assistant from the New York area of the New York district attorney's office. We had a couple of state attorneys general on this group. We had the principal academics working in the field of criminal law. We had representation from the branch of psychiatry that concerned itself with criminal behavior and one of the ableists of those people, Dr. Manfred Gutmacher of Baltimore. We had people engaged in penological work. Jim Bennett, who was then the director of the Federal Bureau of Prisons, for example. Sanford Bates, who had been his predecessor in that field. We had the California people who had been somewhat adventurous and been dealing with correctional matters. Well, we must have had three or four meetings of this group in the course of which Sheldon Glick, part of it, filed a memorandum taking a different view of the purposes of criminal law or a much more clinical view. The group voted down Glick's approach and sustained mine and approved the memorandum. Then we went back to the Rockefeller Foundation with the memorandum and the support of the committee and a proposed budget for the project and much to our delight and surprise, they came along with a grand of $250,000 which was to sustain a $50,000 a year budget for five years and with the understanding that the matter would be reexamined at the end of five years if the work seemed to be successful. Well, it was reexamined and our estimate was that we needed another five years to get finished. So we got another grant of the same amount and after ten years we did get done on the button. How long did that study take before it led to the grant? You said the group met four or five times? Yes. Did it take about a year? Yes, we worked all along. It was about 14, 15 months or so. And I take it that many of the individuals in that study group ultimately became your advisors. Yes, sure. Was Paul Tappen in that study group or did he come on a scene later? No, he was in the study group. So who suggested that you should be the chief reporter? Oh, I think in all candor that when I was asked to do the paratering work leading to the grant and when we got the grant it seemed natural that I should be, certainly be included in the group that would undertake to do what I said I thought was possible. And I think maybe even natural that I should be asked to take the chief reporter's responsibility. But if you ask who proposed it, it must have been Judge Goodrich and Mr. Tweed who proposed it to the council and the council that approved it. How did you find the institute process of advisory committee meetings, council meetings and annual meetings worked out and developed me the code? Was that a congenial process? Yes, I thought it was a perfect medium to work provided that the reporter used it properly and produced. It would fall flat on its face if the reporter for a particular subject was either so idiosyncratic that he kept laying before the material that the group turned down so it wasn't led to support and obviously if he didn't produce then there would be nothing for the three organs, advisory committee, council and membership to consider. It's an onerous process because once you want to take it you've got to meet these deadlines. While a little tolerance maybe can be worked into the scheduling if you have enough projects going, there's not much scope. It surprises that we've had reporters who are unable somehow to develop anything to report. You raised an interesting question of the accommodation between the views of a reporter and let's say the advisors are particularly the council. To what extent does a reporter have to adjust his personal views in order to accommodate the council or is this something that the scholarship or intellectual level that works itself out? Well, I would say first of all, this is the most important point that the council through all my years seemed to me to be a very sensible body that understood that the kind of work that we do, the creative element must for the most part come from the reportorial side of the picture and the council functions best as a critical body. If the council had to originate, I don't believe that as a group, I don't believe it could do it. But given a text that's put before it for critique, naturally the critical faculties of the legal profession have to play in the very best way. We've had reasonably good luck, I think, in our projects and having reporters who understood how to deal with criticism, who welcomed criticism rather than presenting it and knew how to profit from it. And the council didn't undertake a desire to supplant the reporter in originating the material that should go forward. On rare occasions when that type of relationship is broken down, it ended up really with an impasse at which it was necessary to get rid of the reporter. Well, there have been some sort of release valves. I've always thought the notion of a study draft or a discussion draft was a kind of release valve that sort of saves the day for the reporter and also saves the views of the council. Is that your view of that device? Well, it might serve that purpose, but that's not my view of the function of a study draft. I think study drafts should be used at a time when both the reporter and the council are sufficiently uncertain of the direction to follow the options to be picked up, the alternatives to be adopted in working in a particular subject that they welcome a wider sounding board than even the advisors and the council can provide. I suppose there's another function, too, that when the council and all the reporters are really uncertain and want to buy time that a study draft is a good device and it keeps the matter on the agenda without forcing a decision. And so it goes over for another year during which hopefully a consensus can be developed as to whether to move the material on to a tentative draft or to be considered for approval or to drop it. Well, I suppose you had a reporter who feels strongly enough about the subject. He'll go with a study draft or a discussion draft but he comes back to his original positions. Is that a question of his leaving the project at that point? Well, it might be, and at that point you're right that the study draft offers an opportunity to make a deal. The council says we're not ready to go along with you, but your ideas are interesting and we're going to check here, putting them out and we'll publish them and then they're published as a study draft. And that happened, you know, with the tax material on two occasions and at least on one of those occasions the ultimate result was the enactment of the ideas of the study draft. That was on the combination of the federal estate and gift taxes. And I think, I'm right, that the same thing is happening in taxation with respect to the corporate income tax, the curious position now where cooperation chooses to finance itself through equity, through selling stock, then the dividends distributed to shareholders constitute taxable income to the shareholders, having previously of course been derived from income to the corporation that was taxable to the corporation. We have double taxation with respect to the money involved in the dividend distributions, but if the corporation chooses to finance itself through borrowing rather than through equity financing, bonds, for example, and interest paid on the bonds is a deductible expense to the corporation. This is of course the reason for the junk bond epidemic of our time. I guess Anders has kind of proven that agreeing to a discussion draft of the present so there wasn't great receptivity to his proposals in that area in sub-chapter C. Every call with the council. Well, I think the council thought it premature to make the choice. It wasn't really hostility on the part of the council. And I think if you follow it, the council had had to vote. I think they had voted to do away with double taxation. Getting back to the penal code, what do you consider your greatest satisfaction in that project and what areas, in particular areas, and your greatest disappointments? Well, it has had in retrospect both disappointments, and I think it's a great result. From my point of view, I think that developing an acceptable general part for the code, that is to say an acceptable formulation of the general principles that cut across criminal law, such for example as the concept of criminal intent, this was I think on the one hand the most difficult and creative part of the code work, and also the most successful, because we've had more utilization of this analysis of Mainz-Rhea, for example, and then we've had of any other single feature of the code that was brought out at the Rutgers Conference United. And even in jurisdictions where the legislatures have not taken this on, the courts have utilized it in the way that courts utilize a restatement and really developed it as a gloss on whatever body of law in particular jurisdiction may have. We were extremely gratified that our policy conceptions in highly controversial areas, like sex offenses, for example, proved to our surprise, I may say, proved to be acceptable legislatively. The example to take an easy case is the deep criminalization of adultery, the treatment of sexual relations outside of wedlock between consenting adults of the same sex. Even capital punishment though, the Institute took no position on it. The comments indicated the reporters and the advisors were almost unanimously imposed to the employment of capital punishment. That's perhaps a victory that we're in the process of losing after 20 or 25 years of crime, of increasing crime. Though I expect that the states that have held out against the reinstatement of capital punishment will for the most part continue to. The area in which the developments of the last 25 years have benefited least from the code positions, I would say is a very important area of sentencing. At the time when we were doing the code, the dominant view and certainly in academic circles, in liberal circles, even in many political circles, called for a thorough individualization of punishment with great emphasis on the character of the offender as distinguished from the nature of the offense, with discretion in the courts, in applying a wide range of sanctions and also in the correctional agencies, particularly the parole board to determine the termination of imprisonment. As you know, much to everyone's surprise, the left wing and the right wing combined some decades or so ago to individualization and to go back to determining sanctions by the nature and circumstances of the offense and what would seem to be the just deserts for the offender. I consider that a lamentable retrogression, which has led to an almost mechanical approach to sentencing by the application of enormously detailed guidelines. And I'm trying to say that I anticipate that the current developments will and do collapse in their own way. Did you want to take a rest now or should we continue? What time is it? It's only 12.25. Well, I'm ready to go. I thought we'd have lunch. We would have lunch here. But you're hungry. No, I'm not. I just don't want to wear you out. You're doing very well. It seems to be all right so far. Well, let's go into the... One more question. Were there any particular individuals in the ten years of the model penal code that stood out for their contributions or their lack of contribution that left an impression on you in the process? Well, yes, a pleasure. Overall, I think the most helpful single advisor that we had was Judge Britell of New York, Charles Britell, who, when we started out, I think was still a justice of our college division here, but in due course became an associate judge of the Court of Appeals and then Chief Judge of our highest court, New York Court of Appeals. He had been Governor's Counsel when Tom Doe was Governor of New York prior to that time. He had been a prosecutor with Tom Doe and the way back in the 30s when Doe's success in the prosecutor brought him international prominence. He was a court lawyer and a fine judge and he saw the possibilities and had a prize-likely model penal code and he had marvelous judgment as to when formulations or articulations would be helpful and when they would not. Well, that's not... Because there are others. You sing alive one press and you always are in danger of doing an injustice to others, but I'd say we had an exceedingly helpful advisory committee and I was very lucky in having Lou Schwartz and Paul Tappin as co-reporters. Tappin really was the creator of the Code's approach to sentencing and he was, as you know, did all the work on the definition of specific crime except homicide. I did homicide because I had written on homicide and perhaps knew the materials closer in hand than he did. Well, let's move on to the years as director. I think we ought to get in on something about the effect of the Code. Oh, sure. How do we protect right now? That'll be a good place to pick up. Well, I think it's recording. I hope the volume is held up. Has the binding held up on it? We had quite a to-do getting it done. Was it done in-house? No, we had a finder we sent it to and there were some problems at first and then it came through. That's the presentation at the dinner there. Well, her, we're not going to take up the years of your being director. It's quite a period. It's at least 22 years, 22 reports anyway. Was there much difficulty in getting you to agree to be director? Wasn't a hard decision to reach? No, I'm much impressed when the judge died. I thought that this might be a possibility that might come my way, but I still was so surprised. My own situation at that time was, see, we're talking about... Oh, 1963. Yeah. You see that book up there, Federal Courts. Yes. Which is now in the third edition. At that time, I was really just putting that thing to bed. So I... Were we not talking about 1963? No, I'm not. 1963 we're talking about. 1963, no. Yeah, Goodridge died in 62. No, I know. I know that. It was in the New York Times case. Solomon versus... Yeah. Solomon case. Solomon case. That was she just had a recent symposium. That's right. That... When I was approached, I had just been retained by the New York Times to do the case in the Supreme Court, so sure I had been granted. And from my perspective, there was quite a lot of money in it for me. So I had to say yes, but be delayed in taking on, and the delay was getting the brief done in that case. You came in at an interesting time, I think, because I read your 1963 report. The Division of Jurisdiction was starting up, I think, at the time. And torts 2nd was winding up for intentional torts of negligence. And at just about the time, the permanent editorial board was being established. And you graciously went against the agreement with the commissioners and let Bill Schneider serve as chairman. And the foreign relations law, we thought was being completed. The report, you said, was being edited. And pending was some possible new work that had been explored, land use or land development, pre-arrayment, and federal, state, and gift tax. And as I recall, you were instrumental in getting the grants for land use and pre-arrayment. Yes, I think I was. But Judge Goodrich, I think, had gotten the process started. The important point, the historical point of view, though, is that the decision that the Institute should work in those fields had been taken by the council, and I guess on the judge's recommendation, before I came on. So, in other words, when the judge died, the situation was that the penal code, from his point of view, had been completed. As you say, the Division of Jurisdiction Project was still underway. I was an advisor. Had been an advisor on that project, so I was up to date on that. And, of course, the torch restatement was going on, and then there were these three new projects, the pre-arrayment on contracts. Contracts restatement had begun, too, I think. I think that started a year later, 1964, according to your reports, if I read them correctly. You came on in 1963. I think you had enough to digest with three new projects. Land use, pre-arrayment, and federal, state, and gift tax. And I suppose the success of the model penal code was a significant influence and the council agreed to do more statutory projects. Well, I think that we certainly persuaded the council that the institute could do... The format of the institute was appropriate to the statutory work. And, of course, though I, myself, was perhaps something of a crusader for law reform by statute rather than the slower process of decisional change or at least along with the slower process of decisional change, by that time there was reasonable, reasonable degree of acceptance of that point of view. And I think that made it easier to cast the land use project in the legislative form and to cast the pre-arrayment project in legislative form. Well, you picked that up in your first annual report. You may recall your last paragraph on that report in which you say, important is the common law remains in our system. The most pressing tasks of law increasingly have been assumed by legislation. Then you go on and say whether we approve it or not, we are living in the greatest legislative age in the entire history of man. That was the theme that was to recur during your 20, what's it, 22 reports as director. I'm sure it did. It was my basic slant on things. In my teaching as well as the institute work. And I think that in my happiness about being offered the director post at the institute was predicated in some part at least on my thought that the institute could be persuaded to subordinate the restatement emphasis sufficiently to accommodate a reasonable amount of statutory work, which was really proved before I became director by Judge Goodrich's approach to the land use and free arraignment questions. Well, even the tax project, I mean all three of those were legislated with basic perspective. You mentioned Goodrich several times. I take it you have sort of a solid opinion of his contribution as director as you do, of course, of Dr. Lewis. You had two great predecessors in the office. I take it in your view. Well, I didn't know Mr. Lewis and from my point of view the original proposal for the institute was suffered from this total reliance on case law as the subject matter of institute work and as the means to improvement of the law of the United States. The difference between Dr. Lewis and Judge Goodrich was precisely there. Judge Goodrich was, from my point of view, a modern man in his view of law and Lewis was very much still a Langdellian. Well, you mentioned in your address at the annual dinner in 1984 where you spoke about the traditionalists and the reformationists. Remember that? Yeah. And then the middle group, you put Dr. Lewis, I think, in the middle group together with Elie or Ruth and you put Justice Cardoza, Justice Lernan Han, Justice Harlan Stone and Goodrich as the leaders of the reformation. Sometimes the speech read years later is much more meaningful to the reader than what he first hears it. But what? Well, Justice Stone, you know, well, of course, when he was during the period before he went on the Supreme Court, he was on the counsel of the institute and he was on the original counsel. He was one of the original founders. He had had the idea from the very beginning that what the institute should do was to develop the restatements and then propose the enactment of the restatements. And he was very, not only very sincere but almost dogmatic in his insistence that this was the way for the institute to achieve its maximum utility. Well, as you know, the second part of his idea was rejected and I guess quite soundly rejected by the counsel. And I suspect that at that point his enthusiasm greatly declined. The counsel may have been right that it would have been unwise to seek legislative approval. One thing it would have been very hard to get for another thing, it might have operated to freeze things in a very way that was antipathetic to the enthusiasm for case law and case development. But at any event, in my sense for it, after all I was Stone's law clerk from 32 to 33, our public 32 term, I had the sense that he had turned a bit cold on me. And the student I also had the sense that that was the reason why that he Stone tended to turn cold on people who rejected any ideas of it. Not unlike some other people, a lot of us. But do you think that's where Judge Maris got his idea? You know, Judge Maris had the restatement I believe enacted as statutorily in the Virgin Islands and in Guam. No, I think that was a little different because there, there was no body of case law. I mean, he didn't have a mature body of case law. But I think that he, not even Maris would have proposed getting the legislature of New York to enact the restatement of thoughts or contracts. And Cardozo wouldn't have been for it. Well, coming in and as you did in midstream in 1963, some of the new projects were already crystallized as far as, I think you were instrumental in getting the grants from Ford for land use and pre-arrayment. Well, it's true that I carried forward to consummation the applications that were in for those grants. But don't underestimate the start-up that Judge Goodrich had already given that all the preliminary discussions with the Ford people had been conducted by Judge Goodrich. I don't know who else would have probably at least, maybe five or two, but those applications were in an unhealthy condition when I succeeded when he died and when I took over. I had to pick up from there when the grants were made. But even there, Judge Goodrich had picked Arthur Sutherland as director for the pre-arrayment project. And I think the council, I know that the council had already approved that, so that was fed up completely. And also the same thing for the land use project with Charlie Carr, who was then a professor of arts. And let's see, what was the third one? Well, Charlie, I remember Goodrich interviewing Sutherland for that project. The third one was federal state gift tax with Jim Casner. Well, there wasn't any doubt about that because the project had been proposed by Jim Casner. So I didn't have any initial problem on reporters. And I inherited that too from Judge Goodrich, so only one of those three arrangements proved to be stable when the work got underway. That's true, as later reports indicate. In your 64 report, you again speak about the role of legislation increasingly need for a legislative resolution to eliminate the incrustation when they feel the law and start afresh, which is a refreshing theme. Yeah. Well, that was the theme that I deliberately pressed at every opportunity. And I don't think that I did carry the Institute on that. I mean, there was no internal resistance to the statutory projects, but I think that the clue to doing it was not diminishing in any way our interest in restatement work, keeping the restatements alive and going, so that the people who were devoted to the restatement method of law improvement found in the Institute as much scope for their ambitions. Afterwards, as they had before, the statutory thing emerged as an additional, rather than as a substitutive mode of approaching law reform. Yeah, I think the best episode was the bridge you created between statute and case law when you did landlord and tenant. And I think in that report you spoke of legislation as serving as a basis for developing restatement propositions. Well, I think that was innovative, too. That was innovative, but it wasn't my innovation. Actually, the person who had written most about the use of statutes as a base for analogical reasoning through the judicial common law method was Harlan Stone. And if you take a look at his paper at the Harvard celebration in the early 30s, the paper, I think, was called the Common Law in the United States. It was about 1935 or 1936. I guess it was the 250th anniversary of the... No, I guess it was the Tercentenary, the 300th anniversary of the founding of Harvard. This was the paper delivered at a very strategic time. It was just about the time of the president's court plan in relation to the Supreme Court of the United States. And it was Felix Frankfurter who engineered getting Stone invited to give this paper rather than, as you would have expected, Chief Justice Hughes. All of that was quite articulate scheming, which is indicated in the letters and papers that have been published since. But Stone, in that paper, urged consideration in developing the Common Law of drawing on statutory determinants as the basis for analogies, as well as, of course, giving generous effect to statutes in the fields that they had come to occupy. And that was one of the main tenets of what was reasonably regarded as a progressive view of law, as distinguished from the type of view associated with Professor Beale, a sort of mechanical view of the case system. Well, that was in the making when I was a law student and a beginning teacher, and I must say it made the jurisprudential atmosphere in those times a very exciting time. And you've brought that to bear in the Institute, I think. Yeah. Both on landlord and tenants, I recall, on contracts. Right. Bob Brocker was dealing with some of the sections there in relation to the, that he based on UCC. That's absolutely right. And Fonsworth, of course, carried that forward. I thought, I found it interesting in your 64 report where section 402A was reopened, and you said the reporter and counsel think the section states the scope of liability of sellers of defective products more narrowly than it has been defined by the numerous decisions since the section was presented on the floor. And now you have the reverse of that, I suppose, taking place. That's right. And then that struck an interesting note. In 65, well, that's when, I think you reported that Professor Warren Burgess succeeded Sutherland on a prearrayment code. And you pointed out that there, you know, to indicate the scope of the work had increased to 14 reporters, 14 consultants, 17 research assistants, and 100-plus advisors. How'd you keep that circus going? Well, it was quite an arduous undertaking in terms of time and people, but I think I can reasonably say at this distance that the directorship of the institute was not really, for me, a part-time job. I did my teaching that I had been teaching for enough years at that time so that I could continue my teaching without having it take much more time than the number of hours in the classroom. And really all my other time went into institute work. Even my schedule was set up so that I had from midday Wednesday through the balance of the week without any academic obligations so I could use Thursday, Friday, and Saturday of every week for advisory or other institute meetings. And I think that at least during the heavy months of our work, I mean four or five months of the year, and Daris and I were on the road a good part of the time. In 1965, I think, was the year when the study draft concept came into play in the Jim Kasner state and gift tax project. I suppose that was, we spoke about that earlier. The partial response to the resistance that he met in the tax bar were some of his proposals. Well, you know, I really think that the study draft concept was invented to avoid breaking the heart of a very fine friend of the institute, Mr. Miller. I forget Mr. Miller's first name. Robert Miller. Robert Miller was one of the best friends the institute ever had. He was a bachelor, a tax lawyer, and I think that the notion of combining the state and gift tax at similar rates eliminating the distinctiveness that required that a credit could be earned in each field separately and not combined, I think it would leave broken his heart to think that the institute had taken that position. He thought that a system of rates a system of rates that we had with its preference was absolutely essential to a healthy tax system. Well, this gave us a chance to ventilate that idea without anybody being able to say that the institute had embraced that idea. But after Mr. Miller's death the institute did embrace that. And of course Congress enacted it. I think Jim Kasner is very proud of the congressional responses on these ideas that were well and with good reason. That was very antagonistic at least the tax part. Ideas that were being way out and left field Jim Kasner had a way of bringing people to see as reasonable solutions to admitted problems and another illustration of it is the elimination of a tax on interspousal transfers. But just those two ideas the merger of stake and gift on one hand and the free interspousal transfer on the other represent quite massive contributions to aspects of the American tax law that touch us all. That's interesting that an adventurous coach reporter like with one like Kasner with this state business and you with a penal code ultimately become national influences. Is that the reporter's persona that does it or is it the reporter working through the institute? Well I caught it the institute enormously I remember for example in relation to the penal code apparently when Judge Goodrich and Harry Tweed and Tim Pfeiffer started talking to me about that I inferred from what they said that there was a school of thought council that preferred going at the criminal law differently. That is going at it by subsidizing a scholar or a group of scholars to write a treatise on the criminal law and it was specifically offered to me in the preliminary stages as an alternative. Would you rather if the institute were willing to finance it would you rather undertake to write a treatise that would be published in your name by the institute? I said no that my sense for the situation was that one didn't do these things just to enjoy reading one's favorite author at night but to try to make an impact on the law that the institute was an organ which as a corporate entity could be truly influential and the notion that an individual however wise could marshal that degree of influence seemed much more remote. The best examples you could think of were Welliston and Wigmore in their respective fields but even may I thought was the enormous influence that Welliston on contracts had exerted on courts and that Wigmore Wigmore's evidence that exerted on courts and the profession I thought that still to have the imprimatur of the institute not merely as a publisher but as an organization that had done the work and approved it was a way to get a decent result and I added that I thought particularly in the criminal law field where it came out with anything that the district attorneys didn't like they simply start propagandizing against the law and destroy the author and destroy the product but they couldn't do that with an organization like the institute with a kind of representation that they had had well I'm not sure well yet there's a problem today if we may go to present time the Tom Rose study of a better way is he had the benefit of a group of advisors but if it's to be published his work it hasn't gone through the institute and I take it that is not the optimum circumstances to some extent the compensation project that the steward is on the temporary tort reform project presents similar problems but on the other hand when you get a heavy agenda as we have today it may not be possible to well my own judgment would be better not to do the work than to farm it out and but we'll wait and see in any event at least today I think the institute is less is more secure in its status and influence than it was even 25 years ago and I think that the last 25 years have had something to do with producing that result that raises another question what is the influence that well let me put it this way I've always been amazed at what happens to a draft that goes through a specialized advisory committee with knowledgeable reporters and then it comes to the council who are not necessarily experts in the field and new ideas come up that have credence and then it goes back and it's revised and it comes to the annual meeting phenomena happens again here these all knowledgeable reporters and advisors and council have not thought of all the ramifications is that the characteristic of the institute process because there are more numbers reviewing it how do you explain that phenomena well I think it has to do first of all with the subject matter I mean that's the way law is and the more time you take the more ideas you're going to have and the more if you bring different minds to bear on a problem or on a field the richer the result is going to be it's in the nature of law I think it's particularly the non empirical aspects of law I mean this is a matter you know of much morality and conscience and principle and all have an important role to play but that thing about the institute that fascinated me I never realized until I got involved in institute work that this this repetitive examination and re-examination of a problem and it's proposed solution seems to pay off the longer you carry it on and you really stop when you do not because you don't think that further rumination would be rewarding but just as a practical matter because the world has to go on that reminds me of Goodrich's famous quit about writing opinions he said God made the world a six days and a seven days he rested and it shouldn't take any longer to write an opinion well it's the same point but I think the difference was one difference maybe normally an opinion gets revised by a judge and a law clerk or two in the institute as in legislative work generally you bring many more voices eyes to bear and voices to speak before you come to rest I think that this is what has made the institute's product better than the product of other organizations that work simply with a subcommittee reaching an agreement or majority agreement on a formulation or a draft or a report and then bringing it to a huge body on a motion to approve it where all the the the voices at play really argue against amendments on the floor but in the institute everything is always open until the end it's expensive and laborious but at the end it's expensive and laborious but you can bet your bottom dollar that if the institute has a good reputation as I believe it has and commands substantial influence as I believe it does it is that method that ponderous method on the one hand coupled with the choice of personnel on the basis of talent on the other that explains it all I think you put your finger on some important things there your 66 report is the one I believe that spoke about the formula for restating what restating law means and you did it in an introduction on pages five, six, seven it goes on to page five, nine and it's an eloquent statement that somehow should be in the almost printed in the front of every report so that when the draft comes up for consideration the old hackney question that isn't raised is that restating the law right I like that I think we get less of it now well you've read the white papers and refer to the business round table people but they're not institute people we used to get it no within the institute now I don't believe we got it within the institute we get it with people outside the institute like the people I was writing about in the 1966 report remember what it was we had two people Fred Helms Fred Helms somebody else who had joined together to denounce the institute's treatment of product liability the support of strict liability in the product damage field and the basis of the attack was that at the time when the institute adopted what was it 4098 402a right, a retort restatement it was a minority view and it was if that matters I think it was them that the number of courts that had decided cases that way was less than 24 I guess we had 48 states then or 25 states that they were right but what process the law was that the law was moving that way as these cases were coming up jurisdictions in which that had not been held were holding that and the institute agreed with him that that was the direction that the law was taking and then approved the formulation of 402a well Helms and his colleague were right that this undoubtedly involved some bootstrapping once the institute had approved 402a it became easier to get another jurisdiction to that had not yet taken that position to take it and so very speedily after 402a the number of jurisdictions that were in accord with that formulation increased to the point where then it did command a majority now their criticism was not that the result in 402a was wrong in the sense that it was undesirable but that the institute had approved it at a time when it did not have the support of a majority of the states 304 a process that well we had never taken the position that what the institute would approve was to be determined by what a majority of the state courts or common law courts had held as judge Goodrich put it in a report of his statement that I quoted so long as there was a disagreement among courts as to what the common law was we felt free to adopt the position that we thought was right we felt free to adopt either position and naturally we chose the one that we thought was right exact quote and that had been the if there was any point at which a creative moment existed on this issue it was right there when Judge Goodrich said that though I think you'll find intimations of that in William Draper Royce's piece that we published with a restatement with a paper that he called How We Did It he too I think saved the institute from any idea that we were committed to articulating a majority view making a count of heads but still Dr. Lewis was very strong for the proposition that we were stating the law that is not the law that ought to be but the law that is and Judge Goodrich was a little too cagey to do it put it quite that way he knew that the mode of existence of law is a very complicated idea rather than a simple idea and you know it in terms of prediction of decisions but after all that doesn't help a court a court to decide cases by predicting how it will decide cases so the normative element the notion that this not only is the law but ought to be the law or not only ought to be the law but is the law is somewhat mysterious but nonetheless very important aspect of our concepts of what law is and that complexity was what I tried to articulate in the report even then it's somewhat enigmatic in the articulation it has to be it's an enigmatic problem but but I think that I did carry the counsel on that Helms and his institute filed a brief against me and the counsel considered that brief and rejected it and I never I never lost out in the counsel on the proposition that we didn't have adequate support for a assertion that the law was such and such in your report the following year you refer to the previous statement and you say of it the statement of the principle is not at least as yet provoked dissent so it carries a day I think the judges were happy with it it really reflected their own view of how they wanted it to be not that they are that I was for a moment content that judges aren't influenced by prior decisions or any more than that they're not influenced by statutory language but they know that the system requires a certain degree of flexibility and elbow room you put it again eloquently my purpose is to ask if we are not obliged in their own deliberations to wait all the considerations relevant to the development of the common law that our polity calls on the courts the way in theirs that is the position I would die for well we're making some progress here 67 reports and I notice that that's when the article 9 review committee got underway Bob Broncker of course was quite a reporter for contracts before he died and I think he also carried the laboring order in the article 9 review committee he's quite a remarkable man remember he was also a very good judge and another one of your I think significant contributions I think you said it was inspired by Paul Freund was the reformulation of the concept of illustrations it came up in connection with the restating the conflict of laws where it didn't have to be a yes or no answer as you said focused on the issues of factors that would be way I think that made a pretty significant change it's still not universally followed in our restatements no and of course differences among fields of law and how concrete and specific one can be as to what the right answer is and the kind of situation that you tend to put as a hypothetical in an illustration I was always content if reporters had it in mind that this alternative mode of approach to illustrations was acceptable was available that they could use it and some reporters used it more than other in judgments for example it would use very effectively and very frequently in foreign relations it would use first or second more particularly second I mean third provides foreign relations now another highlight I think of your brain was in 68 when it was decided to publish Kazner's study on the state and gift taxes remember two parts recommendations and then giving a reporter more elbow room elbow room that his reporters study to expand on some of the ideas that tax were at that time wouldn't buy or take it well again we spoke of Mr. Miller earlier it was a matter of not pushing the institute too hard on issues that found difficult to resolve so and yet not losing the benefit of the ideas and the analysis that had been articulated by the reporter and I think that they wouldn't like to see it used too often but the situation is right for it I think the study grabbed is a good solution well something else was you allude to in your I think it's now we're up to 68 and that is the impact on our work of Supreme Court decisions that have been post constitutional dimensions this came out in connection with the pre-arrayment project you may recall and then subsequently of course in torts and elsewhere that wasn't so true in the early days was it of institute work that restatement work and even in statutory work where the impact of new decisions of the court well if the decision goes to power the Supreme Court decision goes to power after all it's the first principle of our apology that it's binding