2019 National Convention Panel Descriptions
ACS National Convention Plenaries
The Possibilities and Perils of Supreme Court Reform
Friday 9:15am – 11:00am
Proposals to alter the structure of the Supreme Court and how it does its business have been around for some time and have only multiplied in recent years as the judicial nominations process has grown increasingly contentious. Some claim the Court has never been this politicized and partisan, and that the notion that the Justices are anything but political actors effectuating predetermined agendas is naive. Perhaps not surprisingly, we now hear calls for term limits and Court packing. What should be the progressive orientation toward the Court? Is the Court’s legitimacy at stake and, if so, should we care? If we care, can anything be done about it?
Into the Breach: Relying on State Courts and Constitutions to Safeguard Rights
Friday 4:15pm – 6:00pm
Justice William J. Brennan, Jr., observing in 1977 that his more conservative Supreme Court colleagues were underenforcing the guarantees of the Bill of Rights and the 14th Amendment, urged state courts to “step into the breach” and to scrutinize constitutional claims vigorously because “[w]ith federal scrutiny diminished, state courts must respond by increasing their own.” Now, with the federal courts moving ever more to the right under the current administration, it may be increasingly important for progressive advocates to look to state courts and state constitutions to advance civil rights and protect individual liberty. Which types of rights might receive stronger protection under state constitutions? What might be at risk with such a strategy? Where the federal and state constitutions contain substantively the same text, is it legitimate for state courts to reach different conclusions than the U.S. Supreme Court about constitutional questions? As progressives look at an increasingly inhospitable federal judicial landscape, are state courts and constitutions the answer?
After Trump: Reforming Government and Repairing Democracy
Saturday 9:15am – 11:00am
The 1972 Watergate Scandal and all that it exposed taught Americans a set of painful lessons about the failures of our democracy that were then reflected in a set of “good government” reforms. More than four decades later, the White House and the Department of Justice have exhibited new and unexpected abuses of government authority. As we look to a post-Trump era, what reforms should we consider enacting to protect our democracy from corruption and unchecked executive power? Should we review – and perhaps rescind – statutes that give the president broad power in times of national emergencies? Should the Vacancies Reform Act be reformed? Should the framework of our anti-corruption laws be reworked? Does the Department of Justice, itself, need restructuring so that it can achieve its mission independent from political influence?
Doing Theory/Doing Law: Teaching, Practicing, Governing, Judging
Saturday 1:15pm – 3:30pm
Three distinguished federal judges draw upon their collective experience as professors, private firm lawyers, executive branch attorneys, and judges to reflect upon how engaging with the law varies (or doesn’t) with the role one is playing in the legal system.
Friday Breakout Sessions
11:15am - 12:45pm
Flipping the Narrative on American Democracy
Many progressives lament that our constitutional system is inherently undemocratic, with electoral seats awarded to candidates who don’t win the popular vote, and the explicit denial of voting rights to American citizens based on where they live or because they are felons, despite having served their sentences. Indeed, much of the narrative around voting, democracy, and representation over the last decade has focused on concerted efforts to shrink the electorate and gerrymander political districts, and the progressive response to those efforts. Yet the momentum may be shifting. Innovative ideas are on the table that will expand the electorate and ensure that representatives better resemble their constituents. Are we ready to play offense? Will these strategies ultimately strengthen not only voting rights, but also our democratic institutions? Why are these proposals more likely to gain traction than other ideas, and what can be done to support these efforts?
Let’s Talk About Text
Some progressive scholars and advocates have long urged that progressives take up the mantle of textualism, arguing that the text, history and structure of the Constitution lead to progressive results. This approach may meet with more support in the coming years as progressive litigators, faced with an increasingly conservative federal judiciary, seize upon originalist and textualist arguments in the hope of winning cases. But some scholars and advocates contend that to concede any ground to conservative interpretive methodology is to ignore its fundamental falsehoods and forsake important constitutional interests. Is there a danger in signing on to a textualist or originalist approach to constitutional interpretation? How should progressives reconcile these arguments?
Promoting Progress: Opportunities and Obstacles to Prosecutor-led Reform
In the last few election cycles, a number of progressive prosecutors have been elected in places like Chicago, Orlando, Philadelphia, and St. Louis, joining the ranks of progressive prosecutors in other cities. Reform-minded attorneys are also serving as line prosecutors in federal and state prosecutor offices across the country. These attorneys, many of whom are men and women of color, are seeking to leverage their roles as prosecutors to combat racial and economic disparities in the criminal justice system. How can prosecutors use their discretion and influence to pursue racial and economic justice? What constraints, both legal and systemic, limit a prosecutor's ability to achieve reform? What are the ethical obligations to pursue prosecutions, even in cases where the law disparately impacts people of color or the economically vulnerable?
2019: A Tech Odyssey
From Siri to smart cars to facial-recognition that forestalls terrorist attacks, artificial intelligence, (AI) is already affecting everyday life whether we realize it or not. AI already tracks and predicts individuals’ shopping preferences, political preferences, and locations. But we do not understand the full range of rewards and risks that arise from the use of this technology and the data accumulation necessary for it to work effectively. Computers make trillions of decisions each day in search results and newsfeeds. Do these decisions merit First Amendment protection? Should a computer’s prediction about an individual’s propensity to commit a crime be admissible as evidence at trial? If a software program develops racial biases could the program – or the programmer – be held liable for unlawful discrimination? And does it, or should it, make a difference if issues related to AI arise in the United States, the UK, or China?
2:30pm – 4:00pm
Women’s Rights as Human Rights: Raising the Floor & Shattering the Ceiling
It has been ten years since President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act and more than twenty since the Beijing World Conference on Women pledged to remove all economic, social, cultural, and political obstacles to women’s participation in public and private life. In the last year, we’ve seen American women win more seats in the House of Representatives and in state and local government than ever before, and the Equal Rights Amendment has now been ratified by 37 states. Yet, many women continue to face serious obstacles in the workplace, from gender and pregnancy discrimination, to sexual harassment; and the United States remains the only country in the developed world that does not mandate employers offer paid leave for new mothers. The threat to women’s reproductive rights and health is also back in earnest with a conservative shift in the courts. And all these issues disproportionately impact women of color and low-income women. What legal strategies can be employed to improve gender equality—for all women—and what are the likely obstacles from the courts, the Trump administration, and state and local governments?
Is Deference Deserved?: Reexamining Judicial Review in National Security Cases
Nearly 75 years after the Supreme Court infamously deferred to intentionally misleading government claims of military necessity in Korematsu v. United States, the Court in Trump v. Hawaii upheld on rational basis review the constitutionality of President Trump’s “travel ban,” his third attempt at effecting, in Trump’s own words, a “complete shutdown of Muslims entering the United States.” More recently, the President has asserted “national security” as a justification for imposing tariffs on steel coming from Canada, and has relied upon dubious claims of a national security crisis to invoke the National Emergencies Act of 1976 to unlock other potential sources of funding for his border wall. Unsurprisingly, litigation has ensued. Principles of judicial deference, particularly in the context of national security, are rooted in the acknowledgment that the executive branch is more expert, experienced, and politically accountable than the judiciary. But is judicial deference appropriate when that expertise isn’t consulted or in fact repudiates the executive’s claims? Should deference give way when civil rights are in jeopardy? Should there be a more considered approach to when and how courts defer to the executive in these circumstances?
One Factor Among Many? The Future of Affirmative Action
The Supreme Court has previously upheld affirmative action at public higher education institutions, ruling in 2003 that a college or university can consider race as part of a holistic, multi-factor admissions process, and again in 2013 and 2016, that an applicant’s race can be considered, so long as the process is narrowly tailored to achieve the compelling interest of student body diversity. However, a new legal strategy is now being tested in cases pending against Harvard University and the University of North Carolina at Chapel Hill, and a lawsuit seeking admissions data from the University of California system. These lawsuits allege discrimination not against white students, which had been the claim in the previous cases, but against Asian-American applicants. Moreover, a Department of Justice investigation is underway at Yale as to whether it discriminates against Asian-Americans and treats applicants differently on account of race. The investigation follows the Trump Administration’s rescission of Obama Administration guidelines that sought to enhance student diversity at colleges and universities. Does/should the fact that plaintiffs belong to a racial minority affect the legal analysis in affirmative action cases? And in light of the Supreme Court’s new composition, how likely is this new legal strategy to prevail?
Toward a Progressive Vision of Religious Freedom
Providing exemptions from neutral laws for religious objectors used to be at the forefront of the progressive agenda. In fact, the leading case in this area was Sherbert v. Verner, a decision authored by Justice Brennan. Employment Division v. Smith, the case that overturned Sherbert, was written by Justice Scalia. Conservatives have since picked up the mantle of advocating for religious exemptions both under the Religious Freedom of Restoration Act and the Free Exercise Clause. How should progressives respond to conservative efforts to reinvigorate what was once progressive doctrine? Should progressives consider using RFRA to advance their own causes, for example, to assert a right to assist undocumented immigrants or to make decisions about their intimate lives? What would a contemporary progressive view of free exercise look like?
Saturday Workshops
11:15am - 1:00pm
An ACS #MeToo National Task Force Listening and Discussion Session
As the #MeToo movement evolved, ACS found itself in the cross-section of the discussion with network members in academia, the judiciary (both as judges and law clerks), in public service, and in private practice. Following our 2018 Convention plenary panel on the topic, we formed the ACS #MeToo National Task Force in October 2018, with the goal of tracking trends and considering best practices for the legal community. Since the inception of the Task Force, ACS chapters have hosted listening sessions across the country, and several more are planned. This workshop will act as a national listening session and allow for a geographically diverse perspective on how to combat sexual assault and harassment. A short panel discussion featuring esteemed members of the National Task Force will be followed by small group roundtable discussions. Workshop attendees are encouraged to participate by sharing their perspectives, listening, and keeping shared experiences in the room.
Breaking Through the Clutter: Effective Techniques for Getting Your Message Out, Acing Your Next Broadcast Interview, and Mastering the Art of Op-Ed Drafting and Placement
Join experts from ACS’s Board of Directors and Communications Department for a fun and interactive exploration of message delivery tips and tricks, effective interview strategies, and the ins and outs of op-ed strategy and placement.
Expanding the Vote
This interactive workshop will address a variety of opportunities through which participants can work to expand the vote. The Campaign Legal Center will cover felon re-enfranchisement efforts in states and how lawyers and law students can help restore voting rights. Workshop participants will also learn more about Election Day class cancellation, pre-registration, poll worker recruitment, and census volunteer opportunities.
Leaders From Law: Coaching on Campaign Fundamentals
This session will be conducted as an interactive workshop. Speakers will provide feedback on responses to campaign-related exercises that workshop participants will produce during the session. In addition to designing the exercises, Dr. Heidi Li Feldman, founder of Leaders from Law, will serve as facilitator and moderator.