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 featured 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 included 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 nance laws, and the constitutional roots of a right to education, in addition to race, labor rights, and economic inequality.
Speakers
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
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 addressed 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.
Speakers
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 LL
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?
Speakers -
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
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?
Speakers -
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
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 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.
Speakers -
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 & Homan PC
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?
Speakers
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
Remington Gregg, Legislative Counsel, Human Rights Campaign
