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By Ted Folkman of Rubin and Rudman LLP

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The ALI

Some personal news to report: I have been elected a member of the American Law Institute. For foreign readers, the ALI is “the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law.” It drafts and promulgates the Restatements of the Law and uniform codes such as the Model Penal Code and (with the National Conference of Commissioners on Uniform State Laws) the Uniform Commercial Code. So very happy news! I have three reactions: feel free to mix and match as you choose.

My official reaction

I am grateful for the honor and for the confidence the ALI has shown in me. I will do my best to contribute to the work of the Institute, and I look forward to meeting and sharing ideas with my new colleagues.

My reaction around the office

“Hey, how’s it going? … Yes, pretty busy, you? … (playing it cool) Oh, thanks very much! Yeah, I think it’ll be good. So, tell me about your hearing this morning!”

My inner monologue

Holy cow! Did they really let me into a group that has Paul Clement and Martha Minow as members?

I don’t mean to make light of it—I am very conscious of the honor and really will work hard to repay the trust the Institute has placed in me by electing me.

Ted Folkman

9 responses to “The ALI”

  1. Celeste Ingalls

    Fabulous! Congratulations Ted. I am certain you insights and perspective will be a very positive addition!

    Reply
    1. Ted Folkman

      Thank you!

      Reply
  2. Eddie Varon Levy

    Nonsense Ted. You have earned your wings so to speak. You are, in my opinion, an elite great lawyer who just happens to be a humble, great folksy lawyer, who really learned humility from his parents. You have set the bar, as an expert, again in my view, very high, when it comes to issues of international cooperation, treaties, etc. I consider myself (through word of mouth of other lawyers) an expert, but nonetheless Ted, always have gone to you to “peruse your inner thoughts.” Congratulations my friend, enjoy it, as you will become an Ivón for the rest of us to carry on our concerns, worries, and issues to the ALI. You deserve such a distinction because of all your hard work and endurance. Congrats again and Mazal Tov.

    Reply
    1. Ted Folkman

      Thank you! Maybe a bit much, but thank you.

      Reply
  3. Alessandro Spinillo

    Many congratulations on your appointment to the ALI, Ted.

    You have a challenging task ahead. As a non-US attorney, I assure you that US case law, statutes and the Restatements of the Foreign Relations Law of the United States provide useful guidance for international litigation and arbitration practitioners, even in cases not subjected to the laws of the United States or with no connection with the United States.

    I’m sure you will make a great contribution to the preparation of the Fourth Restatement. I would like to size the occasion to ask if you have posted anything about the US Supreme Court ruling in “Kiobel V Shell Dutch Petroleum 509 U.S. 108 (2013)”, relating to the Alien Tort Statute (ATS). The ruling addressed two very important issues (1) whether conduct occurred outside the territory of the United States could fall under the reach of the ATS and (2) whether corporate liability is actionable under the ATS. If you didn’t post anything on that but still like to raise same thoughts on the matter “off the top of your head”, they would be most welcome. I am sure you will understand the matter is most relevant for the development of human rights litigation on a global level.

    Congrats again!

    Reply
    1. Ted Folkman

      Thanks! I think it is probably too late for anyone to make significant contributions to the Fourth Restatement, given that the project is nearly done, but I will be looking for ways to contribute on other projects.

      I didn’t write specifically about the Kiobel decision, though I did write recently about a follow-on § 1782 case. The main idea of Kiobel is that the presumption against extraterritorial application of US law applies to the ATS, even though the ATS is purely jurisdictional. It’s not really my area of practice, but it seems to me that as long as there is no issue of personal jurisdiction, the (US) state courts remain open to human rights claims that could have been brought in federal court pre-Kiobel, at least in principle. In general, state courts are courts of general jurisdiction, not limited jurisdiction. So if you can get a defendant into state court, consistent with the Due Process Clause, I don’t see why you can’t bring your claims there. I’m not sure if human rights practitioners are thinking along those lines, though.

      Reply
      1. Alessandro Spinillo

        Many thanks for your comments, Ted. My modest view as a non-US attorney is that the US Supreme Courts in Kiebel did not definitely close the door for foreign litigants (who are called “aliens”) under the ATS, but it will be required in future that the conduct occurred outside the territory of the United States have a substantial connection with the United States.

        Reply
        1. Ted Folkman

          You are right. The holding is that the ATS does not permit a court to exercise jurisdiction unless the case “touches and concerns” the United States. I think it’s fair to say no one knows the precise contours of that yet. But it’s clear that the universe of cases that can be heard in the US federal courts is much smaller now than it was before.

          Reply
        2. Ted Folkman

          The other point to consider is the Jesner case on corporate liability under the ATS. Perhaps that has done more to narrow the scope of the ATS than Kiobel.

          Reply

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