Convention Schedule - American Constitution Society

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Jun 9, 2016 - Public Interest Law; and Co-Director of the Supreme Court. Litigation Clinic .... of National Security Law
Convention Schedule Thursday, June 9 11:00 a.m. – 12:45 p.m. 1:00 – 3:00 p.m.

Student Retreat featuring Justin Hansford...................................................................................... Senate Room Voting Rights Institute.............................................................................................................. South American A/B Room

Pa nelis ts

J. Gerald Hebert, Executive Director and Director of Litigation, Campaign Legal Center (moderator) Deborah Archer, Professor of Law; Co-Director, Impact Center for

Public Interest Law; Dean of Diversity and Inclusion; Director, Racial Justice Project, New York Law School

Pamela Karlan, Kenneth and Harle Montgomery Professor of

Public Interest Law; and Co-Director of the Supreme Court Litigation Clinic, Stanford Law School Justin Levitt, Deputy Assistant Attorney General, Office of Civil Rights, U.S. Department of Justice Paul M. Smith, Partner, Jenner & Block

3:00 – 7:00 p.m.

Check-In Open..................................................................................................................................................................... Lower Lobby

3:30 – 4:30 p.m.

Speed Networking........................................................................................................................................................................ Off-Site

4:30 – 6:30 p.m.

Attendee Happy Hour........................................................................................................................................... Capital Terrace

5:00 – 6:30 p.m.

VIP Reception*.. .................................................................................................................................................................... Senate Room

7:00 – 9:00 p.m.

Welcome Dinner............................................................................................................................................ Presidential Ballroom ƒƒ Welcome, ACS President Caroline Fredrickson ƒƒ Address by Senator Elizabeth Warren, introduced by Lily Eskelsen García ƒƒ Address by Vice President Joe Biden, introduced by Ronald Klain ƒƒ Presentation of the David Carliner Public Interest Award

9:30 – 11:00 p.m.

Student Chapter Happy Hour. . .................................................................................. P.J. Clarke’s 1600 K Street, NW

Friday, June 10 7:30 a.m. – 6:00 p.m.

Check-In Open.............................................................................................................................................................. Capital Terrace

7:30 – 8:45 a.m.

Judicial Nominations Taskforce Breakfast*.................................................................... South American A/B

7:45 – 9:15 a.m.

Next Generation Leaders Breakfast*. . ................................................................................................. Federal B Room

8:15 – 9:15 a.m.

Faculty Advisor Breakfast........................................................................................................................... Statler A/B Room

9:30 – 10:45 a.m.

Plenary Panel.. ................................................................................................................................................... Presidential Ballroom

ACS at 15: Looking Back at 15 Years of Progress S P EA K E R S

Ngozi Nezianya, J.D./M.B.A. Candidate, Northwestern

University Pritzker School of Law and the Kellogg School of Management (moderator) Hon. Pamela Harris, U.S. Court of Appeals for the Fourth Circuit

Ronald Klain, General Counsel, Revolution LLC Hon. Peter Rubin, Massachusetts Appeals Court Dawn Smalls, Partner, Boies, Schiller & Flexner LLP

* Invitation only

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Friday, June 10 continued 11:00 a.m. – 12:30 p.m.

Breakout Sessions

The Constitution’s Obligations. . ......................................................................................................................................................................................... Senate Room Most of the time we think the Constitution imposes few obligations on the government to affirmatively advance public-regarding or progressive goals. The Constitution, on this theory, is really just protecting our “negative liberties” from the government. But perhaps there are places where the Constitution requires something of the government—or requires the government to protect people from private actors. This panel will feature members of ACS's Board of Academic Advisors discussing the affirmative obligations that the Constitution imposes on government and how that understanding should influence constitutional decision making and interpretation. Topics will include the duties Congress and the President have to implement immigration law consistent with the Equal Protection

Clause, the government’s obligation to prevent oligarchy through campaign finance laws, and the constitutional roots of a right to education, in addition to race, labor rights, and economic inequality. S P EA K E R S

Ganesh Sitaraman, Assistant Professor of Law,

Vanderbilt Law School; Senior Fellow, Center for American Progress (moderator) Kate Andrias, Assistant Professor of Law, University of Michigan Law School Elise Boddie, Professor of Law, Rutgers Law School Joseph Fishkin, Professor of Law, University of Texas School of Law Cristina Rodríguez, Leighton Homer Surbeck Professor of Law, Yale Law School

Data Privacy and Law Enforcement Access at Home and Abroad.. ........................................................................................... Federal B Room The battle over access to user data heated up this year with law enforcement seeking to require device manufacturers to “unlock” encrypted devices and to access data stored abroad under the control of American companies. Meanwhile, the U.S. and the U.K. have begun negotiations to allow the British government access to British user data based on U.K. legal standards, even though controlled by American companies and stored on U.S. soil. This panel will address the critical questions being raised regarding the extraterritorial reach of domestic law, the applicability of substantive and procedural safeguards that protect privacy in these scenarios, and how to achieve the right balance between

privacy and law enforcement needs in an increasingly interconnected and digitized world. S P EA K E R S

Ellen Nakashima, National Security Reporter, The Washington Post (moderator) Chris Calabrese, Vice President for Policy,

Center for Democracy & Technology Jennifer Daskal, Assistant Professor of Law, American

University Washington College of Law Joseph DeMarco, Partner, DeVore & DeMarco LLP Neal Katyal, Paul and Patricia Saunders Professor of National Security Law, Georgetown University Law Center; Partner, Hogan Lovells LLP

Race, Speech and Inclusion on Campus.................................................................................................................................... South American A/B Room The past year saw students protest on campuses across the U.S., asserting that universities have not done enough to respond to racial bias on campus and to create inclusive academic communities. Some critics dismiss their demands and point to the rise of “safe spaces” and “trigger warnings” as political correctness run amok. What can and should universities do to address these complaints? And how might these issues affect or be affected by the Supreme Court’s consideration of affirmative action this Term in Fisher v. University of Texas?

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S P EA K E R S

Dahlia Lithwick, Senior Editor, Slate Magazine (moderator) Payton Head, Former Student Body

President, University of Missouri Wendy Kaminer, Author, Lawyer and Commentator Theodore Shaw, Julius L. Chambers Distinguished

Professor of Law and Director of the Center for Civil Rights, University of North Carolina School of Law Geoffrey Stone, Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School

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Friday, June 10 continued 11:00 a.m. – 12:30 p.m.

Breakout Sessions continued

Shifts in Gun Politics, Policy and Constitutional Law........................................................................................................................... Federal A Room President Obama’s recent focus on American gun violence reflects—and is accelerating—the most significant change in gun politics in a generation. Since Sandy Hook, guns have gone from an untouchable “third rail” of politics to a central focus of the Democratic presidential primary. New frontiers in Second Amendment law have emerged after District of Columbia v. Heller, and judicial decisions are imminent on key constitutional questions—like whether there is an unfettered right to carry guns in public, whether “assault weapon” bans and high-capacity magazine restrictions must be evaluated under strict scrutiny, and whether doctors can be prohibited from discussing guns with

patients. What do lower court decisions since Heller tell us about the limits the Second Amendment may allow the government to place on gun ownership and use, and how has the recent shift in the gun debate affected both policymaking and judicial decisions? S P EA K E R S

Adam Skaggs, Senior Counsel, Everytown for Gun Safety (moderator) Deepak Gupta, Founding Principal, Gupta Wessler PLLC Alan Gura, Founding Principal, Gura & Possessky PLLC Christine Van Aken, Chief of Appellate Litigation and Deputy

City Attorney, San Francisco City Attorney’s Office Adam Winkler, Professor of Law, UCLA School of Law

12:45 – 2:00 p.m. Lunch.......................................................................................................................................................................... Presidential Ballroom

ƒƒ Address by Senator Amy Klobuchar ƒƒ Presentation of ACS Lawyer Chapter Awards, Constance Baker Motley Writing Competition Award, ACS Student Chapter Awards, and Reproductive Rights and Justice Award (in conjunction with the Center for Reproductive Rights) 2:15 – 3:45 p.m.

Breakout Sessions

The Fall of Class Actions and the Rise of Forced Arbitration?...................................................................................................... Federal A Room More than any other time in recent memory, access to justice may be at a tipping point. Until recently, with the help of courts and legislatures, proponents of class action bans and forced arbitration had a string of victories in their efforts to restrict the ability of consumers, employees, investors and others to seek redress for their injuries. In the past year, however, the Consumer Financial Protection Bureau (CFPB) issued a scathing report on the effect of forced arbitration clauses and a Notice of Proposed Rulemaking limiting their use. The change in the Supreme Court’s composition is leading corporate defendants to reassess class action appeals to what may now be a less

business-friendly Court. How will this potential tipping point affect the ability of individuals and classes to assert their rights under consumer, anti-trust, securities, employment discrimination and wage-and-hours laws? S P EA K E R S

Lauren Guth Barnes, Partner, Hagens Berman Sobol Shapiro LLP (moderator) F. Paul Bland, Jr., Executive Director, Public Justice Kalpana Kotagal, Partner, Cohen Milstein Sellers & Toll PLLC Eric Mogilnicki, Partner, Covington & Burling LLP Suja Thomas, Professor of Law, University

of Illinois College of Law

The State of the Unions: What’s Next for Organized Labor? . . ...................................................................................................... Federal B Room While the currently depleted Supreme Court deadlocked 4-4 in Friedrichs v. California Teachers Association, the latest challenge to public unions, activist anti-union litigants have had some success in recent years in restricting the efforts of organized labor to fight for living

wages, gender and wage equality, and safe and stable workplace environments. With the Fight for $15 gaining steam, will unions grow in workplaces that are not traditionally organized? What role will unions play in the emerging “gig economy?” And how can organized labor

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Friday, June 10 continued 2:15 – 3:45 p.m.

Breakout Sessions continued

The State of the Unions: What’s Next for Organized Labor? continued................................................................................... Federal B Room prepare for coming challenges to union cornerstones such as exclusive bargaining agreements and renewed challenges to public sector unions? This panel will focus on what organized labor can do to continue fighting for workers’ rights. S P EA K E R S

Dorian Warren, Fellow, Roosevelt Institute; Board Chair,

Center for Community Change; Host and Executive Producer of MSNBC’s Nerding Out (moderator)

Daniel DiSalvo, Senior Fellow, Manhattan Institute; Associate

Professor of Political Science, Colin Powell School for Civic and Global Leadership, City College of New York –CUNY Ruben Garcia, Professor of Law, University of Nevada, Las Vegas William S. Boyd School of Law Richard Griffin, Jr., General Counsel, National Labor Relations Board Judith Scott, General Counsel, Service Employees International Union; Partner, James & Hoffman PC

Under Siege: Marginalized Communities and the Criminal Justice System....................................... South American A/B Room Marginalized, disproportionately low-income communities, including communities of color, sexual minorities and transgender people, have a fraught relationship with the criminal justice system. Overcriminalization and overincarceration, the inevitable consequences of our current criminal justice policies, rob marginalized communities of financial and human capital, and exacerbate these communities’ lack of political and economic power. Over- and under-policing (in which police aggressively police communities for minor crimes while failing to prevent or investigate major, violent crimes) fail to adequately address threats of violence, both at the hands of criminals and the police. What measures best empower

these communities to achieve the political and economic influence to ensure self-determination and prevent continued mistreatment by the criminal justice system? S P EA K E R S

Kanya Bennett, Legislative Counsel, ACLU Washington Legislative Office (moderator) Paul Butler, Professor of Law, Georgetown

University Law Center Lauren-Brooke Eisen, Senior Counsel,

Brennan Center for Justice William Otis, Adjunct Professor of Law,

Georgetown University Law Center Andrea Ritchie, Senior Soros Justice Fellow,

Open Society Foundations

The Weaponized First Amendment............................................................................................................................................................................... Senate Room The First Amendment right to free expression holds a special place in the American public mind, conjuring thoughts of reporters who keep us informed and protesters who keep us honest. But in recent years, conservative advocates have advanced First Amendment arguments that some claim enhance the interests of the already powerful at the expense of everyone else. Whether in the campaign finance context, labor law, or commercial speech, they have thus far been successfully enlisting the Supreme Court in their cause. Has something unalterable happened to the cherished First Amendment?

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S P EA K E R S

Linda Greenhouse, Senior Research Scholar in Law, Knight

Distinguished Journalist in Residence, and Joseph Goldstein Lecturer in Law, Yale Law School (moderator) Tamara Piety, Phyllis Hurley Frey Professor of Law, University of Tulsa College of Law Martin Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University Pritzker School of Law Paul Smith, Partner, Jenner & Block Daniel Tokaji, Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law, The Ohio State University Moritz College of Law

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Friday, June 10 continued 4:00 – 5:45 p.m.

Plenary Panel.. ................................................................................................................................................... Presidential Ballroom

We the People? Law and the Politics of Inclusion and Exclusion Throughout U.S. history, social movements have achieved great legal victories that have enhanced social inclusion and expanded the meaning of “we the people.” Whether it be the civil rights movement and its heir, Black Lives Matter, or the push for LGBT equality that resulted in last year’s Obergefell decision, the interplay between social action and legal progress can be powerful. At the same time, the current campaign season has highlighted a disturbing phenomenon: the facility with which racial, religious and other minorities are demonized in our political discourse over what should be substantive policy issues. This is certainly not new. The Chinese Exclusion Act, the internment of Japanese Americans during World War II, and the Supreme Court’s legitimization of both, remind us of the potential exclusionary power our politics 5:45 – 6:45 p.m.

can have on the legal landscape. How does, or how should, social action shape constitutional meaning? S P EA K E R S

Julie Fernandes, Advocacy Director for Voting Rights and Democracy, Open Society Foundations (moderator) Baher Azmy, Legal Director, Center for Constitutional Rights Ian Haney López, John H. Boalt Professor of Law,

University of California, Berkeley School of Law Pamela Karlan, Kenneth and Harle Montgomery Professor

of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic, Stanford Law School Kenneth Mack, Lawrence D. Biele Professor of Law, Harvard Law School Ilya Somin, Professor of Law, George Mason University School of Law

Book Signing with Linda Greenhouse. . .............................................................................................. Capital Terrace ƒƒ The Burger Court and the Rise of the Judicial Right, co-written with Michael Graetz

6:30 – 8:00 p.m. Reception . . ............................................................................................................................................. Congressional/Senate Room 8:00 – 11:00 p.m.

Lawyer Chapters Happy Hour . . ................................... Beacon Bar & Grill 1615 Rhode Island Avenue, NW

Saturday, June 11 7:45 a.m. – 6:00 p.m.

Check-In Open.............................................................................................................................................................. Capital Terrace

8:00 – 9:00 a.m.

Lawyer Chapter Leadership Session. . ............................................................................................. Statler A/B Room

9:15 – 10:45 a.m.

Plenary Panel.. ................................................................................................................................................... Presidential Ballroom

The Imperial Presidency? President George W. Bush and President Barack Obama entered office with radically different conceptions of executive power, particularly with regard to war powers and national security, and the coming year will see the election of a new president. The Bush Administration claimed sweeping unilateral executive power to act contrary to federal laws that regulated surveillance and banned torture, and issued hundreds of signing statements asserting the right to disregard statutory

requirements. President Obama entered office rejecting this overreach and pledging to restore the rule of law. But in the face of congressional obstruction, President Obama also has been accused of abusing presidential power in the contexts of immigration, health care, climate change, and recess appointments. When the next president takes office in January 2017, what view of executive power will and should prevail, and what is at stake for the nation?

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Saturday, June 11 continued 9:15 – 10:45 a.m.

Plenary Panel continued.............................................................................................................................. Presidential Ballroom

The Imperial Presidency? continued S P EA K E R S

Charlie Savage, Washington Correspondent, The New York Times (moderator) Walter Dellinger, Partner, O’Melveny & Myers Martin Lederman, Associate Professor of Law,

Georgetown University Law Center

Saikrishna Prakash, James Monroe Distinguished

Professor of Law and Horace W. Goldsmith Research Professor, University of Virginia School of Law Neomi Rao, Associate Professor of Law and Director of the Center for the Study of the Administrative State, George Mason University School of Law Hina Shamsi, Director, ACLU National Security Project

10:45 – 11:00 a.m.

Address by Neil Eggleston, Counsel to the President

11:15 a.m. – 12:45 p.m.

Breakout Sessions

Being Explicit about Implicit Bias.. ............................................................................................................................................................................ Federal A Room Conceptions of racial justice have been revolutionized in recent years by the discovery and documentation of implicit racial bias—subconscious negative associations about people of color that affect conscious behavior— within wide segments of the American population. Legal scholars and practitioners have begun to explore how implicit racial bias affects the development and application of the law. Can the law meaningfully address implicit racial bias, and if so, how? What concrete actions can law students, law professors, practitioners and judges take to increase awareness of implicit racial bias and

develop legal solutions to minimize the impact of it on the daily lives of people of color? S P EA K E R S

Hon. Mark Bennett, U.S. District Court, Northern District of Iowa (moderator) Roger Clegg, President and General Counsel,

Center for Equal Opportunity Rachel Godsil, Eleanor Bontecou Professor of

Law, Seton Hall University School of Law Eva Paterson, Co-Founder and President, Equal Justice Society L. Song Richardson, Professor of Law, University

of California, Irvine School of Law

Deference in Doubt? The Future of Chevron and the Administrative State.. ................................................................... Federal B Room Administrative agencies in the Executive Branch are a primary source of our nation’s public policy, creating regulatory frameworks under the guidance of congressionally enacted statutes. These expert institutions’ primary purpose is to protect the safety and well-being of all Americans by ensuring that our air and water are clean, our food safe, and financial institutions do not run amok, among many other things. However, the deference traditionally afforded to agencies is currently under attack in the courts and elsewhere. The assault on the administrative state comes not only in the form of doctrinal attacks on Chevron deference, but through regulatory capture by regulated industries, budget cuts that prevent agencies from fulfilling their mandates, and technical hurdles to administrative rulemaking. What responses to these attacks are possible, and can

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we identify new paths forward to provide for democratic inclusion in the regulatory process and ensure accountability of agencies in pursuing the public good? S P EA K E R S

Kate Shaw, Assistant Professor of Law, Benjamin N. Cardozo School of Law (moderator) Boris Bershteyn, Partner, Skadden, Arps,

Slate, Meagher & Flom LLP K. Sabeel Rahman, Assistant Professor of Law, Brooklyn

Law School; Fellow, New American Foundation; Four Freedoms Fellow, Roosevelt Institute Christopher Walker, Assistant Professor of Law, The Ohio State University Moritz College of Law Allison Zieve, General Counsel and Director of the Public Citizen Litigation Group, Public Citizen

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Saturday, June 11 continued 11:15 a.m. – 12:45 p.m.

Breakout Sessions continued

The Gavel Gap: New Data on the Diversity of State Court Judges................................................................................................. Senate Room In the coming weeks, ACS will release a one-of-a-kind dataset on the state judiciary, making available to scholars, policymakers and the public for the first time data on the biographical characteristics (including age, race and gender) of the judges on every general jurisdiction court in the United States. This panel, which includes one of the lead researchers for the study, will provide a special preview of the data and explore what reforms can be made to achieve a more diverse and effective judiciary. Are certain states doing a better job of selecting a judiciary that reflects the demographics of their residents than others? If so, what can we learn from these states? The panel will also consider the

implications for the justice system of courts that do not reflect the diversity of the communities they serve. S P EA K E R S

Kate Berry, Counsel, Brennan Center for Justice (moderator) Hon. Anna Blackburne-Rigsby, District

of Columbia Court of Appeals Tracey George, Charles B. Cox III and Lucy D. Cox

Family Chair in Law and Liberty; Professor of Political Science; Director, Cecil D. Branstetter Litigation & Dispute Resolution Program, Vanderbilt Law School Michele Jawando, Vice President, Legal Progress, Center for American Progress Hon. Peter Reyes, Jr., Minnesota Court of Appeals

Federal Judges Reflect on Sentencing. . ....................................................................................................................................... South American A/B Room An increasing number of federal judges are publicly expressing dismay with federal sentencing policy. Critics express concern that mandatory minimums take much needed discretion away from judges. Reform advocates have also cited mandatory minimum sentences, particularly those for non-violent drug offenses—along with the sentencing guidelines—as contributing to the country’s mass incarceration crisis. Have the guidelines and mandatory minimums contributed to the explosive growth in the federal prison population over the past few decades? Do they achieve the goal of fairer, race-neutral sentencing, or exacerbate existing racial disparities? This panel will examine how judges engage these issues.

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Kevin Ring, Vice President, Families Against Mandatory Minimums (moderator) Hon. Lynn Adelman, U.S. District Court,

Eastern District of Wisconsin Hon. P. Kevin Castel, U.S. District Court,

Southern District of New York Hon. John Gleeson, Partner, Debevoise & Plimpton LLP Hon. Beryl Howell, Chief Judge, U.S. District

Court, District of Columbia

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Saturday, June 11 continued 1:00 – 3:30 p.m.

Lunch, Plenary Panel and Concluding Remarks. . .................................................... Presidential Ballroom ƒƒ Presentation of Richard D. Cudahy Writing Competition on Regulatory and Administrative Law Award by Judge J. Paul Oetken

The Constitution at a Crossroads In 1988, the Department of Justice under the leadership of Attorney General Edwin Meese published a document entitled The Constitution in 2000 that raised a series of questions about the future of constitutional law. Its stated purpose was to “provide a glimpse of the stakes that are involved in the manner in which the ongoing debate [about how to interpret the Constitution] is resolved in the highest court of the land—the United States Supreme Court.” With Justice Scalia’s passing and the resulting vacancy on the Supreme Court, the future of constitutional law once again hangs in the balance. What are the differences between the progressive and conservative visions of how constitutional law should develop? How will the appointment of a new Justice or new Justices affect constitutional interpretation and

key constitutional issues such as race, reproductive autonomy and economic inequality? S P EA K E R S

Joan Biskupic, Editor in Charge, Legal Affairs, Reuters Michael McConnell, Richard and Frances Mallery Professor

of Law and Director, Constitutional Law Center, Stanford Law School; Senior Fellow, Hoover Institution Rachel Moran, Dean Emerita and Michael J. Connell Distinguished Professor of Law, UCLA School of Law Melissa Murray, Interim Dean and Professor of Law, University of California, Berkeley School of Law Ilya Shapiro, Senior Fellow, Cato Institute; Editorin-Chief, Cato Supreme Court Review Steven Shapiro, Legal Director, ACLU David Strauss, Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School

ƒƒ Concluding Remarks by Cecile Richards, President of Planned Parenthood Federation of America

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2016 AC S N at iona l Con v e n t ion