2012 ACS National Convention Program: "Democracy at Stake"


Featured Remarks

  • Richard Cordray, Director, Consumer Financial Protection Bureau
  • Caroline Fredrickson, President, American Constitution Society
  • U.S. Supreme Court Justice Ruth Bader Ginsburg
  • Sen. Tom Harkin, Iowa
  • Justice Goodwin Liu, Associate Justice, California Supreme Court
  • Gov. Deval Patrick, Massachusetts

Opening Session Panel:

Despite a challenging legal job market, a law degree remains a versatile degree when combined with a bit of ingenuity.  Fortunately, legal training can provide a leg-up to pursue political ambitions, to consult on important social and political issues, and to explore fields removed from the traditional legal settings of law firms and government agencies.  Panelists will discuss their path outside a traditional legal setting, how their legal training and skillset have helped them in different fields, and offer inspiration to lawyers and law students hoping to stretch the limits of their law degree and legal abilities.

Plenary Panels:

This plenary will examine the forms and consequences of economic inequality today and consider how government and law should work to restore stability and opportunity to the many families who are a paycheck, health crisis, or missed mortgage payment away from ruin.  Beyond the extremes of rich and poor, economic stratification has emerged as a defining feature of American life.  The economic insecurity facing American households has changed the political conversation and raised the question of the adequacy of our current laws.  This panel will discuss how government measures in key areas – including tax, labor, health care, welfare, criminal justice and education – can respond to the economic and social challenges faced by those in the middle class and those living at the margins of our society.  What kinds of policies are needed to close the economic divide? What specific policies could be enacted at the local, state and national levels to move us toward a more just society? Panelists will provide insight on the meaning of equality in the 21st Century.

Two years ago in Citizens United v. FEC, the Supreme Court ruled that corporations may spend freely to support or oppose candidates for president and Congress, easing decades-old limits on their participation in federal campaigns. Mid-way through a critical election year, what has been the impact of that decision? Have Super PACs changed the electoral landscape?  What should be made of the Montana Supreme Court’s decision to uphold that state’s Corrupt Practices Act, which limits corporate political spending, despite Citizens United? What is the future of campaign finance reform?  Leading thinkers and advocates will discuss the role money is playing in the 2012 campaign, the potential impact on our democracy, and what might be done about it.

Justice Harry Blackmun wrote: "in order to get beyond racism, we must first take account of race. There is no other way."  In sharp contrast, Chief Justice John Roberts advocates a "colorblindness" framework: "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."  The Supreme Court's recent decision to review Fisher v. University of Texas at Austin, so soon after upholding the constitutionality of the University of Michigan Law School's affirmative action program, signals its intent to reexamine the circumstances under which race consciousness is permissible and provides a timely opportunity to examine race and the Roberts Court more broadly.  From Northwest Austin Municipal Utility District v. Holder andBartlett v. Strickland (voting) to Parents Involved in Community Schools v. Seattle School District (education) and Ricci v. DeStefano (employment), the Court has steadily diminished the tools available to address racial inequalities.  Panelists will discuss areas where the Court's equal protection jurisprudence is making a difference, and for whom. They will also examine the implications of varying approaches to race, both by the Court and in other policy arenas.

A conversation between Judges Stephen Reinhardt and Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.

Breakout Sessions:

Despite our founders’ great affection for the jury and the role that jurors play in administering justice, the right to a jury trial guaranteed by the Sixth and Seventh Amendments has been characterized as an endangered species.  In various civil contexts, ranging from securities to civil rights, the jury trial is becoming extinct.  Investors, consumers, employees, and others are denied their day in court because of mandatory arbitration agreements.  In criminal cases, mandatory minimums and other sentencing laws force white collar and other defendants to take plea deals; the risk of going to trial and losing too great.  What does the vanishing jury trial mean for our justice system?  Can attempts be made to save it?

2011 saw more states pass restrictive immigration laws and, consequently, more lawsuits filed in federal court challenging them as unconstitutional.  And this year, the Supreme Court considers the legality of Arizona’s controversial SB 1070, which sits at the heart of the conflict between the federal government’s asserted exclusive power over immigration and states seeking to legislate in the arena. This panel will revisit the oral argument in Arizona v. United States and explore what is at stake: Can states fill what they perceive as a void in federal policy by enacting their own statutes directed at controlling undocumented immigration?  What are the consequences of the Supreme Court’s upholding or striking down SB 1070?

In its February 6, 2012 decision in Perry v. Brown, the 9th Circuit Court of Appeals struck down Proposition 8 (a November 2008 voter referendum in California that banned marriage for same-sex couples) on equal protection grounds, while declining to opine on whether the fundamental right to marry applies to same-sex couples.  Proponents of Proposition 8 have petitioned for an en banc review of the decision, and the case continues to revolve around fundamental equal protection principles.  While Perry is pending, the 1st Circuit and District Court of Connecticut are considering cases challenging Section 3 of the Defense of Marriage Act (DOMA), Gill v. OPM and Pederson v. OPM, respectively.  These cases challenge the federal government’s denial of benefits to same-sex couples that are legally married.  Together, Perry, Gill, and Pederson implicate critical questions about fundamental rights and how we understand marriage and federalism.

A disturbing shift has occurred in our education system over the last few years.  Many schools have moved away from employing traditional disciplinary measures, such as counseling or detention, when students misbehave.  Instead, schools are relying increasingly on suspensions, expulsions, and law enforcement to punish students.  Children are being arrested or removed from schools, even for minor behavioral incidents, at alarming rates around the country.  In response, the U.S. Department of Justice and the U.S. Department of Education have initiated the Supportive School Discipline Initiative to address what is considered the “school-to-prison pipeline.”  What is the impact of increased law enforcement in schools?  What role, if any, should law enforcement play in school discipline?  What are other responses to the disproportionate number of minority students subjected to excessive school discipline?  Is school discipline just one of the many subsets of denied equal educational opportunities for students of color?

Over the past decade, workers’ collective action rights have been under constant attack.  In the past two years, states like Wisconsin and Ohio have passed legislation stripping the collective bargaining rights of public employees, and similar legislation is being considered in numerous states.  In addition, so-called “right to work” laws have been passed in numerous states, including most recently, Indiana.  At the same time, the Supreme Court has severely limited the rights of workers and consumers to take collective action to vindicate their statutory rights.  Recently, however, the National Labor Relations Board in D.R. Horton said that class actions for workers are protected under the National Labor Relations Act.  What interaction, if any, does the D.R. Horton decision have with the Supreme Court’s decision in AT&T Mobility v. Concepcion upholding class action waivers in consumer mandatory arbitration agreements? What lies ahead for the collective rights of workers?


With the failure to pass comprehensive climate change legislation and unprecedented hostility to federal regulation, what other tools can be brought to bear to combat climate change?  What state and local initiatives (state legislation, city ordinances, etc.) could prove productive?  Given the Supreme Court’s recent decision in American Electric Power (AEP) v. Connecticut, which blocked state and local governments from using public nuisance claims in the federal courts to limit greenhouse gas emissions from electric power plants, what other bodies of law and litigation strategies might be employed?  What does the AEP decision mean for pending cases, such as the Kivalina v. ExxonMobil litigation?

This panel will explore the aftermath of the controversy over the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA).  What are the lessons to be learned?  What are the arguments on either side?  If SOPA and PIPA contained fatal flaws, what are other alternatives to protect intellectual property, whether online or offline, without stifling innovation or expression in the tech and start-up communities?

To what extent should religious practices be accommodated in the public square and when must claims of conscience be subordinated to other interests? Should exemptions protect both religious and secular conscience?  These questions underlie many current real-world controversies, including the debate over government-mandated contraceptive coverage under the new health care reform law, the decision by Catholic Charities to cease being a public adoption provider in certain states because of the requirement that they be open to placing children with parents regardless of sexual orientation, and pharmacists’ refusals to fill “Plan B” prescriptions. Where are the fault lines and how should legislatures and administrative agencies navigate them?  What are the legal limits on granting or denying exemptions based upon religious conscience? 

As we head toward the 2012 presidential election, the ability of citizens to participate in the political process could have enormous consequences.  This panel will consider challenges to the right to vote posed by newly enacted obstacles, including new voter ID and residency requirements, constitutional attacks on the Voting Rights Act, the continued problem of felon disenfranchisement, and efforts by state legislatures in the reapportionment process to minimize the voting strength of growing minority communities.  What impact will these developments have on voter participation during the next election cycle? What is at stake for American law and policy in the upcoming election?  What proactive steps can be taken to eliminate barriers and expand voter access to the ballot box? Panelists will discuss these and other questions that lay at the foundation of our democracy.

Litigation challenging the Affordable Care Act (ACA) finally reached the Supreme Court, where it was granted an unprecedented three days of oral argument.  The cases raise fundamental questions about the meaning of Congress’s commerce and taxing powers, questions that reflect underlying debates about how the Constitution’s enduring principles should be interpreted to meet the needs of our complex, modern society.  Arguments put forward by the law’s challengers reflect a vision of the Constitution that would cabin federal power and, their opponents contend, roll back decades, if not centuries, of settled law.  Is the mechanism adopted for ensuring coverage by the ACA unprecedented or unexceptional?  Is a ruling upholding the ACA consistent with traditional notions of congressional power?  This debate will address these and other questions through the lens of the health care lawsuits and will offer reflections on the oral arguments in the ACA cases before the Supreme Court.

Thirty-nine states elect their judges in some fashion, whether as an initial selection process or through retention voting.  These elections have the propensity to turn judges into politicians, at the potential cost of public skepticism regarding judicial impartiality.  What can be done to address the perception that justice can be bought?  This panel of state court judges will share their experiences and recommendations about how to enhance public confidence in the courts.

On January 4, 2012, President Obama made recess appointments to fill four key government positions, including the Director of the Consumer Financial Protection Bureau and three positions on the National Labor Relations Board.  The recess appointments were immediately the subject of controversy, raising questions that were specific (e.g., about what constitutes a valid recess, the legitimacy of pro forma Senate sessions, and legal precedent for such nominations) as well as questions that were general (e.g., about how to address congressional gridlock and about the balance of power between the executive and congressional branches).  This panel will explore the legal and historical issues surrounding recess appointments, as well as outline possible reforms that could minimize the chance of future showdowns over executive branch and judicial nominations.