2017 ACS National Convention

  • May 22, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Mickey Edwards, Vice President and Program Director, The Aspen Institute

    The Constitution provides little guidance for congressional behavior: members of the House of Representatives and the Senate make their own rules, establish their own norms, choose their own structures. They are free to make it up as they go along. But one should hope that the Constitution’s empowerments and constraints – Congress’s specific constitutional obligations and specific areas in which it is prohibited from acting -- will not be the only guides to appropriate congressional behavior.

    In writing about the Founders’ concerns about corruption, Fordham’s Zephyr Teachout has argued that one can discern clear underlying principles threaded throughout the Constitution, even if not specifically stated. I would contend that the same concept – discernible unstated principles – applies to much of the constitutional framework regarding Congress, specifically in regard to the Founders’ expectations regarding behavioral norms: deliberation, debate, compromise, and in its interaction with the executive branch, a strong defense of institutional prerogatives. Almost all of these suppositions have proved to have been overly optimistic. There have been few James Madisons in the 21st century versions of the legislative branch.

  • May 19, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Stephanie Toti, Reproductive Rights Advocate

    In an unbroken line of precedent spanning more than four decades, the Supreme Court has consistently held that a woman’s right to end a pregnancy is a fundamental component of the liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. The right at stake encompasses not merely the right to obtain an abortion procedure, but also, more broadly, “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992). Despite seemingly relentless efforts by anti-choice advocates to undermine, overrule, or chip away at this right, it remains on solid constitutional footing. Last year’s historic decision in Whole Woman’s Health v. Hellerstedt, 579 U.S. __, 136 S. Ct. 2292 (2016), provides a potent reaffirmation of the Supreme Court’s abortion jurisprudence, clarifying both the robust nature of the protection the Constitution affords to “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy” Casey, 505 U.S. at 851, and the role of the courts in enforcing that protection.

  • May 16, 2017
    Guest Post

    *This piece originally appeared on the Take Care blog.

    **This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Frederic M. Bloom, Professor of Law, University of Colorado Law School and Jon D. Michaels, Professor of Law, UCLA School of Law

    We have all heard the saying: those who do not learn from history are doomed to repeat it. History seemed to repeat itself earlier this week with Donald Trump's firing of FBI Director James Comey. Some have tried to cast Comey’s dismissal as unremarkable—just a president exercising his authority to fire an executive official he no longer trusts. But make no mistake: Comey's dismissal is exceptional. Indeed, it is so exceptional that it forces us to recall Richard Nixon’s craven directive to fire Special Prosecutor Archibald Cox, right as Cox was hot on the Watergate trail.

    Like most analogies, this one is imperfect, and all of the contrasts and differences prove unkind to the incumbent Administration. Start with Nixon’s Saturday Night Massacre: Impressive as they come, Archibald Cox had been brought in from Cambridge, where he served with distinction as a Harvard Law professor, a position easily admired but also readily lampooned. (Recall William F. Buckley’s famous quip that he would “sooner be governed by the first two thousand names in the Boston telephone directory than by the two thousand members of the faculty of Harvard.”) Cox’s credentials were pristine, but there was little doubt of his partisan bona fides. He ran in Democratic circles—not Nixon’s—advising John Kennedy during his time in the Senate, as part of JFK’s presidential campaign, and ultimately as the young president’s solicitor general. Through profession and perhaps party affiliation, then, one could spin a story (however far-fetched) that discounted or discredited Cox’s new gig as a special prosecutor.

  • May 9, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Deborah Rhode, Ernest W. McFarland Professor of Law and Director of the Center on the Legal Profession, Stanford Law School

    “It depends,” is the most irritating answer that an ethics professor can give to difficult ethical questions. But sometimes it is the only one that makes sense, and that is my response to whether socially responsible lawyers can, or should, serve in the Trump administration. The key factors are what the position is and how much ability the lawyer has to accomplish ethically defensible ends.

    I begin from the premise that it will not serve the public interest if the only lawyers in governmental positions are those who share Trump’s views. There are many relatively apolitical legal jobs in the federal government in which attorneys can do “good” work, in both a descriptive and prescriptive sense. And there are even some political jobs, for which, as New York Times columnist Russ Douthat has argued, if Trump is willing to make “responsible appointments, the good of the world requires that responsible people accept them.” Progressive administration lawyers can be the front line of resistance to executive abuse. They can supply passive resistance to efforts to roll back important procedural and substantive protections. And they can effectively enforce the safeguards that are not under siege. To take an obvious example, the enforcement division of the EPA urgently needs attorneys who have environmental commitments that their president may not share.

  • April 27, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Orly Lobel, Professor of Law, University of San Diego School of Law

    I am pleased to be a speaker at the ACS 2017 National Convention, which takes place in June 8-10 in Washington D.C. My talk, which will be part of a panel discussion entitled A Second Gilded Age? The Consolidation of Wealth and Fracturing of Employment, will bring together several lines in my research: the gig economy, platform regulation and governance, human capital, intellectual property and antitrust law. In April 2016, I had the honor to deliver the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. I delivered a paper called The Gig Economy and the Future of Employment and Labor Law, which was later published in the USF Law Review and can be read here. I ask: What is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? I propose four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others.