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Professors Neil Cohen and James Fanto Shepherd Projects to ALI Approval

05/20/2021

Two Brooklyn Law School professors saw the completion of their long-awaited projects at the American Law Institute’s 2021 Annual Meeting. Members voted to approve the ALI-ELI Principles for a Data Economy, on which Neil B. Cohen, the Jeffrey D. Forchelli Professor of Law, served as ALI reporter. The ALI also voted to approve Principles of the Law, Compliance and Enforcement for Organizations, on which James Fanto, the Gerald Baylin Professor of Law, served as an associate reporter.

Principles for a Data Economy

A joint undertaking with the European Law Institute, the Principles for a Data Economy project drafted a set of transnational principles to provide guidance to all parties in the data economy, as well as to courts and legislators worldwide. Developed through the study of existing and potential legal rules applicable to transactions of data assets, the principles are designed to be flexible enough to be implemented in any kind of legal environment and work in conjunction with any kind of data privacy or data protection law, intellectual property law, or trade secret law, without addressing or seeking to change any of the substantive rules of these bodies of law.

“The data economy now is almost exclusively governed by legal doctrines that were developed for other purposes,” said Cohen. “One of the intentions of this project is to think not only about what the rules are, but what the rules could and should be. Unlike preparing a Restatement, for which a lot of the work involves looking back into the history of legal doctrines, this project needs to look at the present and to the future without any real guarantee of what the future will look like, because it’s changing so quickly.”

Cohen, who is also the longstanding research director of the Permanent Editorial Board for the Uniform Commercial Code, the ALI’s joint venture with the Uniform Law Commission, worked alongside the ELI Reporter, Christiane C. Wendehorst, professor of private law at the University of Vienna, and president and a founding member of the ELI. They were assisted by ELI co-chair Lord John Thomas of Cwmgiedd, who until recently served as Lord Chief Justice of England and Wales; and ALI co-chair Steven O. Weise, partner at Proskauer and member of the ALI Council.

“There is uncertainty, both in the United States and in Europe, concerning the legal rules that should apply to the data economy,” said ALI Director Richard L. Revesz. “I am very excited about the result of this transatlantic collaboration and proud that the type of work that we do is deemed valuable around the world.”

The approval of ALI-ELI Principles for a Data Economy at The American Law Institute’s 2021 Annual Meeting was made possible in part by a philanthropic grant from Carnegie Corporation of New York.

Principles of the Law, Compliance and Enforcement for Organizations

The Principles of the Law, Compliance, and Enforcement for Organizations set forth recommended best practices and standards on the law of compliance and enforcement for organizations, with a particular emphasis on the needs of large organizations. They also provide recommendations for responses to organizational misconduct by enforcement officials and prosecutors, including how they might encourage organizations to implement effective compliance.

Fanto worked with Reporter Geoffrey P. Miller of NYU School of Law and Associate Reporters Jennifer H. Arlen of NYU School of Law and Claire A. Hill of University of Minnesota Law School to develop these principles. Each reporter was responsible for one part of the project, with Arlen on enforcement; Fanto, governance; Hill, risk management; and Miller, compliance.

“Before assisting in drafting these principles, I did not realize how much of a group production an ALI project actually is, with the drafters reflecting the views of and being closely assisted by the ALI Council, the project’s advisory committee, the members’ consultative group, and the overall ALI membership,” said Fanto.

“It is very exciting to see the completion of this important project,” said Revesz. “For this extremely significant accomplishment, I am very grateful to Professors Miller, Arlen, Fanto, and Hill, and to the very dedicated Advisers and Members Consultative Group. I believe these principles will provide important guidance to organizations in this complex area of law.”

The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and improve the law. The ALI drafts, discusses, revises, and publishes Restatements of the Law, Model Codes, and Principles of Law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education. Twenty-three Brooklyn Law School professors and professors emeriti are ALI members.