2013 National Convention Program: “… And Justice for All”

Featured Speakers

• Caroline Fredrickson, President, American Constitution Society

• Rep. John Lewis, Georgia

• Sen. Jeff Merkley, Oregon

• Gov. Martin O'Malley, Maryland

• Former Supreme Court Justice John Paul Stevens

• Sen. Elizabeth Warren, Massachusetts

• Tony West, Acting Associate Attorney General

• During the convention, we will be honoring our 2013 Progressive Champions, U.S. Representative John Lewis and Microsoft General Counsel and Executive Vice President, Legal and Corporate Affairs, Brad Smith.

Opening Session Panel:

• A Call to Public Service

  Despite slow improvements in the economy, the job market for new lawyers remains a significant challenge.  Many young attorneys interested in public service work worry about whether there is an adequate infrastructure in place to support a public interest career choice. What are the options at state and local levels and how can recent graduates secure a place in those settings? Are there innovative alternatives to pursue public interest work in non-traditional settings, like public firms?  Can a progressive public interest law firm be created inside a city or county counsel's office?  This panel will include lawyers from state and local public offices. Participants will discuss traditional and innovative options.  

Plenary Panels:

• Courts, the Constitution, and Social Change 

One need only look at the Supreme Court’s consideration of marriage equality and affirmative action this term to be reminded of the important role courts can play in social movements, whether it is to advance causes or slow them down. Throughout American constitutional history, the courts have at times been at the vanguard of social change, with such cases as Brown, Lawrence and Roe being among the more notable examples.  At other times, the Supreme Court has stood as an obstacle to social progress. This panel will focus on the questions of what should be the role of the courts in debates over major social issues and how rules of constitutional interpretation do and should play into this discussion.

• The Value of a Vote: Reassessing Political Equality

Over the last decade the Supreme Court has shown an increased interest in weighing in on issues affecting the integrity of the political process.  From the Court’s holding in Citizens United v. FEC to its recent decision to grant certiorari in Shelby County v. Holder, challenging the constitutionality of Section 5 of the Voting Rights Act, the Court’s rulings have a significant impact on political equality in this country.  How will these decisions affect the health of our democracy? What are the implications ofShelby on the future of voting rights? Has the Court dismissed the idea that equalizing opportunity for political influence is a legitimate value when it comes to voting rights and campaign finance regulation? What is the future for voter political participation? What challenges lie ahead? Panelists will explore these and other questions in a thought provoking discussion about the vitality of our democracy and the civic participation on which it relies.

• Reclaiming Gideon

Fifty years ago the United States Supreme Court decided Gideon v. Wainwright, one of the most renowned and celebrated cases in our constitutional history.  Today we recognize Gideon not only for the right to court appointed counsel that it protects but also for the commitment to equal justice under law that it symbolizes.  Some, however, have argued that Gideon has proved to be only an empty promise and that the right to meaningful representation is more illusory than real.  Focusing on the rights of indigents, this panel will examine Gideon and the state of the American justice system (civil and criminal) at the federal, state, and local levels.  

• Covering the Court: Inside the Supreme Court Press Room

With back-to-back blockbuster terms, the Supreme Court continues to capture our collective imagination, as well as impact the lives of all Americans. The journalists who cover the Court day-in and day-out have a unique perspective on the Justices and how cases get decided. This panel of Supreme Court reporters will take us inside the Supreme Court Press Room, reflecting on the October 2012 term, the personalities and shifting alliances on the Court, and the possibility of upcoming vacancies. 

Breakout Sessions:

• A Corporate Takeover of the First Amendment?

Corporations have prevailed with First Amendment arguments in several contexts, including credit rating agency opinions, and most recently, marketing and advertising regulation.  In the 2010-2011 Term, in Sorrell v. IMS Health, Inc., the Court held that pharmacies have a First Amendment right to sell prescription records to marketing and data mining companies. In Citizens United, the Court held that it was unconstitutional to ban free speech through the limitation of independent communications by corporations, associations, and unions.  Is the Court’s First Amendment jurisprudence furthering corporate interests at the expense of public interests?  Are these decisions fueling litigation strategies in the lower courts that promise increased expansion of corporate rights?  Or are critics just being dismissive of free speech rights because they do not like the speaker?  Our panel will describe, from a variety of perspectives, the implications of the Court’s pronounced shift on corporate First Amendment issues.

• A Class Act Term?: The Supreme Court and Class Actions

The Court considered several class action cases this Term.  Its docket included Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, Comcast v. Behrend, Genesis HealthCare Corp. v. Symczyk, and American Express Co. v. Italian Colors Restaurant.  Have the Court’s decisions in these cases been consistent with the precedents established in Wal-Mart v. Dukes and AT&T v. Concepcion?  Should employees, consumers, investors, and others be concerned that their ability to pursue class action litigation has been limited?  Or, on the other hand, has the Court demonstrated through its decisions that such concerns are unwarranted?  As the 2012-2013 Term comes to a close, this panel will consider the current state of class action litigation and mandatory arbitration and explore the impact of Wal-Mart and AT&T in the lower courts. 

• Fresh Perspectives and the Future of Federalism

Principles of federalism partially define our constitutional structure and inform numerous ongoing national debates, including those on immigration, marriage equality, marijuana regulation, the proper scope of executive power, and health care reform.  Members of a new generation of legal scholars will discuss what the law of federalism may look like five and ten years from now, highlighting developments in the courts, in state and federal legislatures, and at the grassroots level. 

• Comprehensive Immigration Reform: DREAMs, Possibilities, and Obstacles

This time around real, comprehensive immigration reform looks possible, including a path to legalization for the 11 million undocumented individuals who live and work in the U.S. Will it include a temporary worker program? A path to citizenship for the undocumented youth known as “DREAMers”? A new employment verification system? What must be done legislatively and what can be accomplished administratively to reform our immigration system? This panel will examine pending proposals from the legislative and executive branches, the opposition to them, and the possibility of legal challenges.

• The Era of Mass Incarceration

The United States incarcerates more than 2 million people, imprisoning more people than any other country in the world.  This unprecedented prison population can be attributed to federal and state policies implemented over the past few decades, including mandatory minimums, three strikes, and life without parole.  Our culture of incarceration is reflected in a variety of contexts, from the War on Drugs to the School to Prison Pipeline, where criminalization has prevailed over other approaches to social problems.  Mass incarceration has had a disproportionate impact on people and communities of color, with African Americans and Latinos constituting approximately 60% of the prison population.  What are the consequences of mass incarceration for our society?  What policies and practices are driving these high levels of imprisonment?  Are there constitutional tools at our disposal, like the pardon power and the Eighth Amendment, which can assist in ending the era of mass incarceration?                      

• Showdown: A Dialogue over the Second Amendment

Among progressive scholars, there used to be consensus that the Second Amendment protected only a collective right of the states to maintain “a well-regulated Militia.”  However, over the past 25 years, some progressive scholars have departed from this consensus, and some argue that this departure is partly responsible for the individual rights interpretation reflected in District of Columbia v. Heller and McDonald v. Chicago.  With the Supreme Court having weighed in, is the debate over the Second Amendment now over, and what are the varying progressive viewpoints?  And with the national conversation focused on gun violence prevention, how does the current understanding of the Second Amendment limit the forms that such prevention can take?  What should be response to the wave of unprecedented mass shootings, like the one in Newtown, Connecticut, and to the increased gun violence in major cities?

• The Worker Voice in a New Era of Organizing

Economic inequality has grown rapidly over the past few decades, with a disheartening decline in workforce stability.  The workplace and its force as a channel for economic success is no longer a foregone conclusion for the worker.  Organizing to fight income inequality has become increasingly difficult.  Much of this dilemma can be traced to the hostile, coordinated legal and political opposition facing organized workers, collective action, and collective bargaining.   Is collective action the most effective method of fighting income inequality? How can principles of freedom of assembly and freedom of association be used in new and creative ways to mobilize and organize workers?  What novel tools can existing labor organizations and unions look to in their organizing campaigns?  What are new and transformative forms of organizing that can fundamentally enhance collective action and reinvigorate the worker voice?  What types of federal and state legislation could support these efforts, and is collective action the answer to fighting economic inequality? 

• The Search for Privacy and Security in the Internet’s Modern Era

What role does government have in regulating, monitoring, and reviewing our online behavior, and what limits should be placed on the government and corporations and their ability to share the details of our private lives?  With ECPA reform being assessed by Congress, true cyber security reform stalled, and with the Foreign Intelligence Surveillance Act (FISA) left intact by the Supreme Court in Clapper v. Amnesty International, the intersection of government, technology, the internet, and privacy is front and center in the national debate.  What are the various constitutional and legislative considerations?  What are the challenges to reform?

• The Resegregation of America: The State of Fair Housing

Housing segregation persists today, with the rising income gap of the past few decades to blame. Of course, the millions of incidents of housing discrimination that occur annually cannot be overlooked.  Contemporary housing crises, like unprecedented foreclosures and post-Katrina housing shortages, have also played a significant role. Because our access to education, health care, and other necessities are often determined by where we live, what legal and policy measures can be advanced to prevent the resegregation of America? With courts chipping away at organizational standing in several civil rights contexts, are the enforcement efforts of private fair housing organizations threatened? Given repeated efforts by the Supreme Court to consider disparate impact in the fair housing context—first with Magner v. Gallagher and now with Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc.—will disparate impact remain a viable tool to combat housing discrimination? What deference should be given to the U.S. Department of Housing and Urban Development’s regulation affirming the disparate impact standard? How can we ensure that tools meant to increase housing opportunity and access, like the Low-Income Housing Tax Credit, are not being used to further discrimination?

• Money, Politics, and State Courts: A Threat to a Fair and Impartial Judiciary?

Important new empirical research sponsored by ACS establishes a correlation between political contributions to state court judges and judicial decisions favoring business interests. The 2012 election cycle shows that corporate contributions to judicial candidates continue to grow, and partisanship in state court elections is accelerating. A panel of expert academics and judges will examine the scope of this problem and propose solutions. They will address the evidence marshaled in the ACS report, Justice at Risk? An Empirical Examination of Whether Campaign Contributions Influence State Court Decision-Making, that there is a significant statistical correlation between campaign contributions from business interests and pro-business judicial decisions. The panel also will address the following questions: Do increasingly expensive and partisan elections threaten the fairness and impartiality of the judiciary? Are certain methods of judicial selection better suited to address these problems than others? How can citizens take action to defend the fairness and impartiality of the judiciary?

• Perspectives on National Security and the War on Terror

The past two administrations, led by President Barack Obama and President George W. Bush, have overseen responses to the largest domestic terrorist attack in U.S. history, the beginning and imminent end of wars in Iraq and Afghanistan, the development of laws supporting non-Article III military commissions, the rise and dismantling of terrorist networks, and the evolution of various forms of warfare.  There is much debate surrounding how these administrations may have differed or aligned in their interpretation of the Constitution when formulating national security policy in this area.  How have the two administrations differed in their interpretation of executive power and effectuating policies to fight the war on terror?  How has the Obama administration justified actions relating to the War Powers Act, military commissions, Authorization for Use of Military Force, and drone warfare?  Finally, what is the progressive vision for national security policy, and how might that comport with and differ from this administration’s current policies? 

• Winner Stays, Loser Pays: Developments in Fee Shifting

Texas most recently deviated from the traditional American rule that both parties pay for their own litigation costs in 2011 when it enacted legislation that allows prevailing parties to recover litigation expenses in cases deemed frivolous.  Historically, in the United States, fee shifting has only been allowed in situations where litigation is encouraged as a matter of public policy, such as civil rights and consumer protection cases.  While Alaska is the only other state that has a loser pays system, the concept has been championed by tort reformers, and publicly supported by several elected officials. The Supreme Court even weighed in, recently reaffirming the authority of district courts to shift costs under the Federal Rules of Civil Procedure in Marx v. General Revenue Corp.  Do we have evidence that a loser pays system actually reduces litigation costs by encouraging parties to settle out of court?  Does it do justice a disservice by discouraging plaintiffs from filing suit?  Has there been innovation in litigation funding that provides individuals with incentives to bring their cases to court?  Given the longstanding tradition that litigants pay their own costs, what is the justification for fee shifting in areas of the law where the public interest seeks to encourage litigation, like civil rights?