AALS Annual Meeting 2006

Empirical Scholarship
What Should We Study and
How Should We Study It?

January 3-7, 2006

Washington, DC

Thursday, January 5, 2006

 7:00 a.m. - 7:00 p.m.
AALS Office and Information Center

7:00 a.m. - 7:00 p.m.
AALS Registration

7:00 a.m. - 7:00 p.m.
AALS Message Center

7:30 - 8:30 a.m.
Twelve Step Meeting

8:00 a.m. - 5:00 p.m.
AALS Exhibit Hall Open House “The Meeting Place”
Exhibitors will display a variety of academic, teaching and administrative products and services of interest to those in legal education. Refreshments will be served in the morning and afternoon in the “Meeting Place” in the Exhibit Hall.


7:00 - 8:30 a.m.
Section on Administrative Law Continental Breakfast
(Tickets were sold in advance. If available, a breakfast ticket may be purchased at On-Site Registration until 5:00 p.m. on Wednesday, January 4. Tickets will not be for sale at the breakfast.)

7:00 - 8:30 a.m.
Section on Law, Medicine and Health Care Breakfast
(Tickets were sold in advance. If available, a breakfast ticket may be purchased at On-Site Registration until 5:00 p.m. on Wednesday, January 4. Tickets will not be for sale at the breakfast.)

7:00 - 8:30 a.m.
Section on State and Local Government Breakfast
(Tickets were sold in advance. If available, a breakfast ticket may be purchased at On-Site Registration until 5:00 p.m. on Wednesday, January 4. Tickets will not be for sale at the breakfast.)

7:00 - 8:30 a.m.
Section on Women in Legal Education Continental Breakfast
(Tickets were sold in advance. If available, a breakfast ticket may be purchased at On-Site Registration until 5:00 p.m. on Wednesday, January 4. Tickets will not be for sale at the breakfast.)

7:15 - 8:30 a.m.
Special Meeting and Continental Breakfast for Beginning Law Teachers

8:30 - 10:15 a.m.
AALS Committee on Sections and Annual Meeting Program

Fostering Collaboration in the Academy: The Role of Sections

Moderators: Robert D. Dinerstein, American University Washington College of Law
Laura Hines, University of Kansas School of Law

This program is an open forum for all section leaders (past and current), as well as other interested persons. The content of the session will be derived in part from answers to the survey the Committee will conduct in September 2005. The session will be interactive in nature, as the Committee wants to promote a dialogue with faculty about the range of purposes Sections can have and how they relate both to each other and the AALS at large.

8:30 - 10:15 a.m.
Section on Agency, Partnership, LLCs and Unincorporated Associations

What’s Left of Fiduciary Duty?
(Program to be published in the Tulsa Law Review)

Moderator: Barbara Bucholtz, The University of Tulsa College of Law
Speakers: Carter G. Bishop, Suffolk University Law School -view outline-
Reza R. Dibadj, University of San Francisco School of Law
Gregory M. Duhl, Southern Illinois University School of Law
Daniel S. Kleinberger, William Mitchell College of Law
Mark J. Loewenstein, University of Colorado School of Law

First the Uniform Law Commissioners sought to “straight jacket” fiduciary duties into an exhaustive list that omits (among other things) any fiduciary duties of disclosure and any owner-to-owner fiduciary duties. Then the Delaware legislature proclaimed that a private agreement within an unincorporated business may not only restrict fiduciary duties but may also eliminate them. This program will explore the nature of fiduciary duties in the contemporary unincorporated business organization and will consider (i) the relationship between social norms (i.e., fiduciary duty) and private ordering (i.e., operating agreements, partnership agreements); (ii) the transformation of the duty of good faith that has resulted from efforts to cabin fiduciary duty; and (iii) the relationship between right and remedy within an unincorporated entity (i.e., the theoretical imports and practical consequences of the direct/derivative distinction).

Presentation One: The Panoply of Fiduciary Duties - From the World According to Cardozo to the World According to RUPA and Delaware (overview, including developments in the duty of disclosure and the use of the concept of “good faith”)

Presentation Two: Fiduciary Duties and Private Ordering - The Duty of Care (exculpatory provisions; the relationship of indemnification to the duty of care)

Presentation Three: Fiduciary Duties and Private Ordering - The Duties of Loyalty and Disclosure (RUPA’s approach [including “manifestly unreasonable”]; Delaware’s approach)

Presentation Four: In Search of the Proper Remedy: Accounting, Dissolution, Direct, Derivative?

Business Meeting at Program Conclusion

8:30 - 10:15 a.m.
Joint Program of Sections on Aging and the Law and Law, Medicine and Health Care

Human Embryonic Stem Cell Research: The Promises, the Perils and the Politics

Moderator: Judith F. Daar, Whittier Law School
Speakers: Rebecca Dresser, Washington University School of Law
John D. Gearhart Ph.D., Professor of Gynocology and Obstetrics, Physiology, Comparative Medicine and Population Dynamics, Director of Stem Cell Biology, Johns Hopkins University, Baltimore, Maryland
Bernard Siegel, Executive Director, Genetics Policy Institute, Wellington, Florida

The current debate over embryonic stem cell research was launched in the fall of 1998 when two teams of researchers from American universities published independent reports that the groups had succeeded in isolating and culturing stem cells from human embryos and aborted fetuses. These discoveries meant that scientists could move to the next step of inducing these undifferentiated cells to specialize into any cell of the human body, giving rise to cell-based therapies to treat disease. If stem cells could be coaxed to become neurons, or blood cells, or heart cells, or pancreatic cells, they could be used to treat a variety of diseases such as Parkinson’s, diabetes, heart disease, and ALS. What had only been imagined was now coined the new field of regenerative or reparative medicine. While scientifically exciting, stem cell-based research provokes intense reaction, both in support and in opposition, because it involves the destruction of the early embryo in order for the stem cells to be retrieved.

This panel will explore the scientific, legal, and ethical underpinnings of embryonic stem cell research. Dr. Schatten, a noted leader in the field whose lab was the first to create a cloned monkey embryo, will present the latest scientific breakthroughs on the clinical promise of stem cells for patient therapies. He will also discuss the prospect of human cloning for reproductive purposes, distinguishing this practice from research or therapeutic cloning which is currently focused on developing immune-matched therapies for human use. Mr. Siegel will draw on his experience in educating groups such as the United Nations about the promise of stem cell research. He will discuss the legal framework which surrounds the current research, focusing on the various stakeholders in the debate and the possible public policy solutions that are worthy of consideration. Finally, renowned bioethicist Professor Dresser will address the ethical dilemmas that embryonic stem cell research poses. She will address the different possibilities for implementing an approach based on a position that embryos have an “intermediate” moral status, while also touching on other moral considerations that are often neglected in the policy debate over stem cell research.

Business Meeting of Section on Aging and the Law at Program Conclusion
Business Meeting of Section on Law, Medicine and Health Care at Program Conclusion

8:30 - 10:15 a.m.
Section on Comparative Law

The Globalization of American Law?
Comparative Law and the New Legal Transplants

Moderator: Annelise Riles, Cornell Law School
Speakers: Lama Abu-Odeh, Georgetown University Law Center
George A. Bermann, Columbia University School of Law
Donald C. Clarke, The George Washington University Law School
Eric A. Feldman, University of Pennsylvania Law School
Bryant G. Garth, Southwestern University School of Law
Benjamin Lesler Liebman, Columbia University School of Law

The aim of this panel will be to debate the question, are legal regimes around the world becoming newly, increasingly, or differently “Americanized,” as some commentators have suggested, or not? If so, how, where, and for whom? And what should be the position of American comparative lawyers toward this development, what ethical questions does it raise, and what new research questions does it open up?

The panel will discuss, for example, the experiences of civil law systems in various parts of the world with the creation or importation of American-influenced constitutional norms and regimes. Examples of the phenomenon would include such seemingly diverse experiences of legal transplants as Japanese constitutional law on the one hand and the jurisprudence of the European Court of Human Rights on the other. What interests us are the ways this new, and sometimes American-influenced constitutional legal reasoning comes into conflict with existing styles of legal reasoning; how this conflict or accommodation takes place in sociological terms (for example, in conflicts between American-trained and civil-law jurisdiction-trained scholars, or between judges on constitutional courts and judges on private law courts); the political dimensions of this transplant (for example, in popular and expert arguments for or against the authority of constitutional texts and courts); and more indirectly, perhaps the epistemological and aesthetic dimensions of the process (for example, in discussions about whether “balancing tests” or “reasonableness standards” are appropriate, or elegant forms of legal reasoning).

In addition to constitutional questions, areas of interest include the importation, or resistance, of American legal doctrines in areas of market regulation, consumer protection, corporate law, and national security.

Business Meeting at Program Conclusion

8:30 - 10:15 a.m.
Section on Jewish Law

Ruling Over Others: The Religious Implications of Governing People of Other Faiths

Moderator: Maimon Schwarzschild, University of San Diego School of Law
Speakers: J. David Bleich, Yeshiva University Benjamin N. Cardozo School of Law
Noah R. Feldman, New York University School of Law
Shayna M. Sigman, University of Minnesota Law School
Nomi Maya Stolzenberg, University of Southern California Gould School of Law
Suzanne Last Stone, Yeshiva University Benjamin N. Cardozo School of Law

How should a Jewish commonwealth govern people of other religions, or of no religion, within its jurisdiction? This was mostly a theoretical question for nearly two thousand years of Jewish history. But today the State of Israel embraces Jews, Muslims, Christians, and others. The State of Israel does not govern under Jewish law as such, although Jewish law influences Israeli statutory and common law. Religious law is directly incorporated into Israeli law on family law matters, including marriage and divorce, and for purposes of the “Law of Return” which offers Israeli citizenship to members of the Jewish people.

What are the rights of non-Jews in a Jewish commonwealth? What are their obligations? How much consensus exists within Jewish law on these questions? How much scope is there, or ought there to be, for religious pluralism under Jewish law? Is there a theoretical or practical link between intra-Jewish religious pluralism, and the scope and limits of tolerance towards other religions?

Religious pluralism raises some of the most urgent questions in world politics, and in the life of many countries. What ideas or cautions, are offered by Jewish law and Jewish thought?

Business Meeting at Program Conclusion

8:30 - 10:15 a.m.
Section on Law and the Humanities

Bringing Interdisciplinary Work to the Classroom

Moderator: Emily M.S. Houh, University of Cincinnati College of Law
Speakers: Philip N. Meyer, Vermont Law School
Kathleen O’Neill, University of Washington School of Law
Angela I. Onwuachi-Willig, University of California at Davis School of Law

In his presentation, Professor Meyer, who uses interdisciplinary visual texts as hypotheticals to teach doctrinal concepts in the basic criminal law course, will excerpt clips from popular movies, including Rebel Without a Cause, Vertigo, Magnolia, and The Blue Gardenia. He will use these clips to discuss how they can be used to teach students doctrinal concepts and analytical skills.

In her paper, Professor O’Neill will weave together three separate strands of analysis: conventional legal analysis (including the economic analysis of law), rhetorical analysis, and biography. In so doing, she will analyze and compare recent opinions, as well as other writings, by well-known contemporary judges (such as Justice Scalia, and Judges Posner, Easterbrook, and Kosinski). Professor O’Neill’s hypothesis is that commonalities of class, education, and psychology, including perhaps some anxiety about outsider status and zeal to “win,” have generated shared, distinctive, and often effective rhetorical devices. Professor O’Neill will conclude by suggesting ways in which old-fashioned biographical historicism can engage students to read between and beyond the lines of traditional legal texts.

Professor Onwuachi-Willig’s presentation will situate recent welfare debates concerning the Temporary Assistance to Needy Families (“TANF”) program and, in particular, related debates concerning the proposal of the “marriage cure”, within a post-colonial context. She will examine both historically and currently, how the law of marriage has been used by the United States as a tool for “civilizing” unruly outsiders, in particular blacks. In so doing, Professor Onwuachi-Willig will build on the scholarship of Professors Katherine Franke and Laura Edwards, to analyze how marriage laws were used in the post-bellum period as a means of limiting the government’s economic responsibility for providing for slaves upon their emancipation. She will scrutinize the racialization of the welfare debate in the United States, dissecting current and proposed TANF marriage promotion provisions to reveal how marriage and law are again being used as tools for civilizing “uncontrollable” welfare queens. She will also explore alternatives to the proposed marriage cure. Finally, Professor Onwuachi-Willig will discuss how she incorporates these themes into her classroom teaching, through the exploration of foundational questions that concern the definition of “family” and historical and existing social and legal constructions of certain types of families as deviant.

Business Meeting at Program Conclusion

8:30 - 10:15 a.m.
Section on Natural Resources Law

The New Generation of Natural Resources Law Casebooks

Moderator: Michael C. Blumm, Lewis and Clark Law School
Speakers: Robert L. Fischman, Indiana University School of Law-Bloomington
Dale D. Goble, University of Idaho College of Law
Thomas C. Jensen, Partner, Sonnenschein Nath & Rosenthal LLP, Washington D.C.
Sarah A. Krakoff, University of Colorado School of Law

After a long hiatus, a new generation of natural resources law casebooks is now on the market. Three new books have been published in the last year alone. This panel will assess the new books 1) from an historical perspective, beginning with Clyde Martz’s casebook a half-century ago; 2) in terms of their contributions to the interdisciplinary nature of the pedagogy and the practice of natural resources law; and 3) by comparing the ways in which they divide up the field of environmental law. The panel will also use the assessment of the new casebooks as a lens through which to view trends and shifts in the field of natural resources as a whole. And, as a look beyond the present, the panel will conclude with a discussion of a recent report by the U.S. Institute for Environmental Conflict Resolution suggesting that the long-ignored statement of environmental policy in section 101 of the National Environmental Policy Act be employed to resolve conflicts over public natural resources law in the future.

Business Meeting at Program Conclusion

8:30 - 10:15 a.m.
Section on Pre-Legal Education and Admission to Law School,
Co-Sponsored by Section on Student Services

Misconduct and Its Effect on Admission, Matriculation, Retention and Graduation

Moderator: Jill Suzanne Miller, Duke University School of Law
Speakers: Mark S. Carlin, Chair, DC Court of Appeals Committee on Admissions, Ain & Bank PC, Washington, DC
A. Darby Dickerson, Stetson University College of Law -view outline-
David G. Swenson, Baylor University School of Law
Vincent A. Thomas, Hamline University School of Law -view outline-
Sarah C. Zearfoss, The University of Michigan Law School

Although we wish it were otherwise, misconduct on the part of law school applicants and students is something administrators and faculty are required to confront on an ongoing basis. In exploring this topic the panel will consider some of the different types of misconduct that occur and the law school responses that are most appropriate depending on when the misconduct occurs and when it is discovered.

Issues explored will include the following: setting up procedures for admissions officers to identify and handle misconduct cases; deciding when to refer misconduct matters to the Law School Admissions Council; handling misconduct cases that occur or are discovered after the student has already matriculated; establishing appropriate procedures for disciplinary hearings on serious misconduct matters; determining what information about student misconduct should be referred to bar examining authorities; and understanding how bar examiners approach these misconduct issues.

Business Meeting at Program Conclusion for Section on Pre-Legal Education and Admission to Law School.

8:30 - 10:15 a.m.
Section on Pro Bono and Public Service Opportunities

Surveys Matter

Speaker: Robert Granfield, Professor, Department of Sociology, University at Buffalo, Buffalo, New York

Law school pro bono professionals are increasingly called upon to participate in internal and external surveys attempting to describe and assess the effectiveness of our public service/pro bono programs. In addition, we continue to develop and refine our own surveys to examine the impact of our programs on the multiple constituencies we serve - e.g. law students, pro bono attorneys, public interest organizations, alumni, and faculty as well as to inform our efforts to develop programs which are responsive to the needs of these communities.

This panel will explore how we can respond to and develop reliable survey instruments through which we can reliably measure the effectiveness of our program. Panelists will examine a wide range of topics including the following: assessing and developing methodologically sound survey instruments in the pro bono field; effective and fair ways of presenting survey results; and examining recent surveys and literature in the pro bono field.

8:30 - 10:15 a.m.
Section on Remedies

Roundtable Discussion on Tort Reform: Remedial and Compensatory Proposals

Moderator:Michael Patrick Allen, Stetson University College of Law
Speakers: Thomas C. Galligan, Jr., University of Tennessee College of Law
Michael B. Kelly, University of San Diego School of Law
Andrew R. Klein, Indiana University School of Law, Indianapolis
David F. Partlett, Washington and Lee University School of Law
Doug Rendleman, Washington and Lee University School of Law -view outline-

President George Bush has placed the subject of tort reform high on his priority list for his second term. A number of issues have been raised including caps on pain and suffering damages, limitations on class actions, etc. Other legislative proposals include the American Tort Reform Association’s proposals to reform appeal bond requirements.

However, the subject of “tort reform” has assumed greater ascendance in not only the legislative arena, but also the judicial arena. For example, the United States Supreme Court has issued important decisions limiting the amount of punitive damages.

This panel will examine various reform proposals the jurisprudential underpinnings of tort remedies, and the insights that can be derived for tort reform from those underpinnings. From there, various panelists will focus on particular aspects of tort reform including punitive damages, appeal bond requirements, and compensation systems in such contexts as class action proposals, asbestos reform and the 9/11 compensation scheme. The panel will also focus on the political interplay between federal tort reform and notions of federalism.

Business Meeting at Program Conclusion

8:30 - 10:15 a.m.
Section on Women in Legal Education,
Co-Sponsored by Section on Minority Groups

Gender, Race and Decisionmaking:
New Perspectives on Summary Judgment and Damages

Moderator: Stephanie M. Wildman, Santa Clara University School of Law
Speakers: Martha Elisabeth Chamallas, The Ohio State University Michael E. Moritz College of Law
Deseriee A. Kennedy, University of Tennessee College of Law
Elizabeth M. Schneider, Brooklyn Law School
Lu-in Wang, University of Pittsburgh School of Law
Commentator: Pat K. Chew, University of Pittsburgh School of Law

This panel will discuss new research on gender, race and decisionmaking in the context of summary judgment and damages. Do gender-related issues impact summary judgment awards and affect women plaintiffs’ cases in federal and state courts? Are cases involving racial issues frequently dismissed on summary judgment as well? In torts and other compensation contexts, do gender-based and race-based tables used to predict earning potential impact damage awards? Do gender and racially stereotyped views of litigants and claims continue to impact decision makers and if so, how can these views be effectively challenged?

Business Meeting at Program Conclusion for Section on Women in Legal Education

9:15 a.m. - 12:15 p.m.
Section on Institutional Advancement

Institutional Advancement: It’s Not Just Fundraising Anymore

8:00 a.m.
Coffee, Tea, Breakfast Pastries - Roundtable Discussions
(Fundraising for Independent Law Schools, Involving LL.M. Alumni, Involving Faculty in Fundraising [or Relationship of development to faculty and administration], MG Solicitations, Benchmarking, Class Gift Campaigns, Maintaining Web sites in small shops)

9:15-10:30 a.m.
Charitable Gift Planning Examples and Helpful Tax Tidbits

Moderator: Phillip H. Buchanan, Senior Philanthropic Advisor & Director, Office of Gift Planning, Duke University, Durham, North Carolina
Speakers: Molly Mc Ardle, The Ohio State University Michael E. Moritz College of Law
John MacRae, Harvard Law School

10:30 - 10:45 a.m.
Refreshment Break

10:45 a.m. -12:00 p.m.
Concurrent Sessions:

Moderator: Terri Mische, University of Minnesota Law School
Speakers: Catherine M. Comiskey, Loyola University New Orleans School of Law
Dennis C. Cuneo, Senior Vice President, Toyota Motor of North America Inc., Torrence, California
Lisa Barton Kranz, The George Washington University Law School Sara Jones, University of Minnesota Law School

  • Annual Fund (The basics of increasing participation)

Moderator: David C. Condliffe, Rutgers, The State University of N.J. Center for Law& Justice, Newark

  • Media Relations

Moderator: Kevin T. Conry, Georgetown University Law Center

10:30 a.m. - 12:15 p.m.
AALS Committee on Curriculum and Research Program

Using New Empirical Studies to Improve Legal Education

Moderator: Lauren K. Robel, Indiana University School of Law- Bloomington

Topics and Speakers:
ABA Study on Law School Curriculum: How Can We Use This Study To Improve What We Teach?
Catherine L. Carpenter, Southwestern University School of Law

Law School Survey of Student Engagement: How Can We Increase Our Students’ Learning?
Patrick O’Day, Project Manager, The Law School Survey of Student Engagement, Center for Postsecondary Research, Indiana University, Bloomington, Indiana -view outline-

After the J.D.: What Can Our Graduates’ Experiences Teach Us About What We Do In Law School?
Joyce S. Sterling, University of Denver College of Law

Three recent major empirical studies provide new data on our students’ experiences in law school, our curricula, and our graduates’ experiences in practice. Last year, the program described the three studies. This year, we will explore how these studies can be used to examine critically our practices, to improve the educational experiences we provide, and to understand better the world our graduates will enter. The panelists will draw out themes common to all three reports to suggest ways in which faculty and schools can best profit from this work.

10:30 a.m. - 12:15 p.m.
Joint Program of Sections for the Law School Dean and Law Libraries

How I See It: A Dialogue Between Deans and Law Library Directors

Moderator: Kenneth W. Starr, Pepperdine University School of Law
Speakers: Barbara Bintliff, University of Colorado School of Law
John H. Garvey, Boston College Law School
Penelope A. Hazelton, University of Washington School of Law
Billie Jo Kaufman, American University Washington College of Law
Nancy Rogers, The Ohio State University Michael E. Moritz College of Law
David E. Van Zandt, Northwestern University School of Law

As the costs of legal education escalate, law school administrations must find creative ways to control costs and optimize resources. Although their goals are the same, deans and law library directors share different visions about how to reach their objectives. This program will focus on three areas that have been causes of tension: namely, library space and collections; librarian status; and the question of whether the library should supervise information technology for the law school. The designs for traditional law libraries originated in a book-based, non-digital culture.

As the nature of legal work and communication changes, so do the ideal spaces for research and study. Collections are a thorny issue because the variety of resource formats available is forcing librarians to examine issues of short and long-term accessibility, duplication, and archival quality. As the law expands, so does its literature. The sheer volume of legal information, coupled with escalating collection development expenses, compels most law schools and their libraries to find ways to tackle problems collaboratively. Some examples of collaborative efforts have included cooperative collective development and the formation of consortial relationships.

ABA Standard 603 (d) mandates faculty status for law library directors except in “extraordinary circumstances.” What are some of the issues associated with this standard? Why is faculty status important to insure that a law library is, at a minimum, “an active and responsive force in the educational life” of a law school? As technology becomes ubiquitous as an information delivery tool, many would argue that the law library director is the logical administrator for the planning and deployment of the law school’s information resources.

The panel of law school deans and library directors will discuss these three topics. As for each issue, a dean and library director will lead the discussion, followed by a moderated discussion and question and answer period from the floor.

Business Meeting of Section for the Law School Dean at Program Conclusion
Business Meeting of Section on Law Libraries at Program Conclusion

10:30 a.m. - 12:15 p.m.
Section on Employment Discrimination

Gender Stereotyping - Expanding The Boundaries of Title VII
(Program to be published in the Employee Rights and Employment Policy Journal)

Moderator: Michelle A. Travis, University of San Francisco School of Law
Speakers: Miriam A. Cherry, Samford University Cumberland School of Law
Arthur S. Leonard, New York Law School
Joan Chalmers Williams, University of California, Hastings College of the Law -view biography- -view presentation-

In1989, Price Waterhouse v. Hopkins declared “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” In recent years, social science theories of gender stereotyping and gender role norms have proven to be potent tools in a wide range of cases, some of which could not have been anticipated by the Price Waterhouse Court.

Stereotyping theories have been used to prove the existence of class-wide sex discrimination and gender harassment in the workplace; they have also been used to expand Title VII’s protections to classes of persons who were originally thought not to have been protected by the statute. In harassment cases, gay men and effeminate men (both gay and straight) have used stereotyping theory to argue that such harassment violates Title VII because it is a way of enforcing gender stereotypes. Transgendered workers have also successfully argued that discrimination against them violates Title VII because it is motivated by impermissible gender stereotypes and role norms.

Stereotyping theory may explain why women continue to bump up against a glass ceiling or hit a “maternal wall” and fail to advance as fast or as far in their careers as their similarly situated male colleagues. Stereotyping theory also provides the lynchpin in the plaintiffs’ complaint and petition for class certification in the on-going class action against Wal-Mart on behalf of over a million current and former women employees.

This panel will analyze these recent trends in gender stereotyping cases. The panelists will discuss how the content and use of gender stereotyping theory has changed over time, the increasing reach of gender stereotyping law, and the potential limits of this discrimination theory.

Busniess Meeting at Program Conclusion

10:30 a.m. - 12:15 p.m.
Section on Environmental Law

Federalism and the Environment: A Revolution Through Devolution?
(Program to be published in The Urban Lawyer)

Moderator: Robert R.M. Verchick, Loyola University New Orleans School of Law
Speakers: Kirsten H. Engel, The University of Arizona James E. Rogers College of Law
Robert L. Fischman, Indiana University School of Law-Bloomington
Jonathan R. Nash, Tulane University School of Law

According to the conventional wisdom, environmental law is in the midst of a federalism revival, perhaps even a revolution. This trend, as commonly understood, has the effect of limiting federal authority over environmental protection in favor of more vigorous power for state and local governments. It is a revolution through devolution. But is this account of environmental federalism true? While it is true that courts and policymakers have (as in the case of wetlands protection and forestry issues) devolved certain powers to the states, they have simultaneously hamstrung state and local efforts to control in other areas (as in waste disposal or in the regulation of factory farms). The speakers will address the issue of federalism in today’s environmental law, asking whether we are in fact in a federalism revival and, if so, whether such a revival is a friend or foe to sound environmental policy.

Business Meeting at Program Conclusion

10:30 a.m. - 12:15 p.m.
Section on Indian Nations and Indigenous Peoples, Co-Sponsored by Section on Federal Courts

Revisiting the Court of the Conquerer

Moderator: Victoria Sutton, Texas Tech University School of Law
Speakers: James E. Brookshire, Executive Director, The Federal Circuit Bar Association, Washington, District of Columbia
Thomas E. Luebben, Esquire, Luebben Johnson & Young LLP, Albuquerque, New Mexico
Nell Jessup Newton, University of Connecticut School of Law

This panel will address issues in Indian Law and the Federal Circuit as a forum for shaping Federal Indian Law. Members of the panel will provide observations and a review of the Federal Circuit as a forum for Indian Law cases, beginning with the transfer of the Indian Claims Commission cases, after 30 years, to the Federal Circuit (2006 marks the 60th year anniversary of the establishment of the Indian Claims Commission), to recent cases. Some recent cases of interest include Thompson v. Cherokee Nation,124 S. Ct.1656;158 L. Ed. 2d 354; 2004 U.S. LEXIS 2028; 72 U.S.L.W.3597 (March 4, 2004), decided in the Federal Circuit, granted certiorari by the U.S. Supreme Court, which reversed and remanded in part, affirmed and remanded in part; United States v. Navajo Nation, 537 U.S. 488 (2003) where a favorable ruling for the tribe was reversed by the U.S. Supreme Court and remanded; and Samish Indian Nation v. United States, 58 Fed. Cl.114 (2003), involving issues of tribal federal recognition.

Business Meeting for Section on Indian Nations and Indigenous Peoples at Program Conclusion

10:30 a.m. - 12:15 p.m.
Section on Insurance Law

Difficult Risks

Moderator: Seth J. Chandler, University of Houston Law Center
Speakers: Michelle E. Boardman, George Mason University School of Law
John V. Jacobi, Seton Hall University School of Law
Howard Kunreuther, Cecilia Yen Koo Professor, Wharton School of Business, University of Pennsylvania, Philadelphia, Pennsylvania
Adam F. Scales, Washington and Lee University School of Law
Peter Siegelman, University of Connecticut School of Law

So much of insurance law revolves around the problems of “difficult risks.” Risks may be difficult for a variety of reasons. First, classic problems of adverse selection and moral hazard may beset the market in which risk transfer is sought. While contract law and regulation can often substantially reduce these problems, the imperfection of these instruments can often lead the problems to persist. Second, insurance functions most comfortably when the “law of large numbers applies.” Yet, some risks, terrorism, seismic hazard, may violate this law, at least when either the time period or geographic location over which risk can be spread is limited. The law’s role in setting the boundaries of risk contracting thus affects the class of risks most comfortably transferred. Yet a third difficulty in the transfer of risk relates to limitations of human cognition. The particular contract provisions that often need to be implemented in order to avoid the inherent problems of risk transfer already discussed often make insurance arrangements more difficult to understand than other contracts. The law is then focused to choose between practices that may couple education to contracting, sometimes driving up the cost of the latter, reliance on use of intermediaries, or doctrines that either apply the language of the contract to the surprise of the consumer or fail to apply it to the consternation of the insurer.

Our speakers at this session grapple with these theoretical issues with a medley of approaches, some abstract others institutional and practical. Professor Jacobi discusses the problems of difficult risks recognized in the HIPAA-stimulated formation of state high risk pools. Professor Siegelman challenges whether adverse selection is as frequent an impediment to the formation of insurance contracts as has generally been presumed. Professor Boardman looks at insurance contract doctrine and sees how it affects the transfer of difficult risk. Professor Scales, examines the insurance interest doctrine in the life insurance field and sees how its traditional application may have needlessly confined desirable risk transfers. Professor Kunreuther will discuss the challenges of low probability events for an insurance market.

Business Meeting at Program Conclusion

10:30 a.m. - 12:15 p.m.
Section on Intellectual Property,
Co-Sponsored by Section on Law and Computers

The Direct and Indirect Infringement Issues Surrounding P2P: Sharing or Piracy?

Moderators: Glynn S. Lunney, Jr., Tulane University School of Law
Justin Hughes, Yeshiva University, Benjamin N. Cardozo School of Law
Michael J. Madison, University of Pittsburgh School of Law
Speakers: Wendy Jane Gordon, Boston University School of Law
Raymond Ku, Case Western Reserve University School of Law
Neil Weinstock Netanel, University of California at Los Angeles School of Law
Randal C. Picker, The University of Chicago The Law School

MGM Studios v. Grokster may be the most significant Supreme Court opinion on copyright law since Sony Corp. of America v. Universal Studios was decided in1984. This program will examine the two halves of the question presented in Grokster. There is the question of indirect liability for copyright infringement, decided in Sony with respect to the videotape recorder and renewed, now, with respect to peer-to-peer (P2P) computer networks. Is the Court’s approach likely to lead to the innovation and creativity that are the goals of intellectual property law? There is also the question of direct liability: Should users of P2P networks be regarded as direct infringers of the works “shared” or “swapped” on those networks? Should they be analogized to “time shifting” television viewers whose fair use was critical to the Sony Court’s determination that selling VTRs was lawful?

Those doctrinal splits are mirrored by a rhetorical or metaphorical divide, which paints users of P2P systems as innovators in “sharing” digital expression, or alternatively, as “pirates” and “thieves” whose activities are undermining the traditional economic foundations of copyright law. Which view is the better one, and how has it informed the Court’s conclusions?

The program features speakers who will approach these questions from a variety of doctrinal and policy perspectives.

Business Meeting of Section on Intellectual Property at Program Conclusion
Business Meeting of Section on Law and Computers at Program Conclusion

10:30 - 12:15 p.m.
Section on Law and Mental Disability

The Human Rights of People with Mental Disabilities:
The Americans with Disabilities Act and Global Perspectives

Moderator: Michael E. Waterstone, University of Mississippi School of Law
Speakers: Elizabeth F. Emens, University of Chicago Law School
Lawrence Gostin, Georgetown University Law Center
Arlene S. Kanter, Syracuse University College of Law
Paul Steven Miller, University of Washington School of Law

In 1990, as President George H.W. Bush signed the Americans with Disabilities Act into law, he described it as “the world’s first comprehensive declaration of the equality of people with disabilities … every man and woman and child with a disability can now pass through the closed doors, into a bright new era of equality, independence, and freedom.”

This panel will reflect on whether this has been the case for people with mental disabilities. Has the ADA limited discrimination against this group? If so, how, and if not, why not? This panel will also discuss, from the global and international perspectives, what other issues that may be beyond the scope of antidiscrimination legislation affect the lives of people with disabilities, and what legal and policy approaches are appropriate.

Business Meeting at Program Conclusion

10:30 a.m. - 12:15 p.m.
Section on Legal History

Recent Developments in Comparative Legal History

Moderator: Polly J. Price, Emory University School of Law
Speakers: Harold J. Berman, Emory University School of Law
Jonathan K. Ocko, Duke University School of Law
Patricia Seed, Professor of History, Department of History, University of California, Irvine, California
Seval Yildirim, Whittier Law School

Legal history, traditionally treating subjects within particular national boundaries, is increasingly transcending these to evaluate long-term change across regions and throughout the world. Such comparative analysis requires scholars to master multiple languages and types of sources, and sheds light on recurring legal structures and developments in superficially dissimilar societies.

This panel will examine the theoretical interplay between comparative legal history and the field of cultural anthropology, the applicability of early modern Chinese contract and property law to recent trends, and the evolution of Turkish family law in the context of the movement from traditional Islam to secularism. The panelists and commentator will explore the extent to which national legal histories need to be understood in the light of comparative historical theory, and are framed by regional and world legal systems.

Business Meeting at Program Conclusion

10:30 a.m. - 12:15 p.m.
Section on Legal Writing, Reasoning and Research

Teaching Professionalism in a Way That Respects and Honors Law Students
(Program to be published in the Legal Writing Institute Journal)

Speakers: Lawrence S. Krieger, Florida State University College of Law
Patrick E. Longan, Mercer University Law School
Laurie A. Morin, University of the District of Columbia David A. Clarke School of Law
Sophie M. Sparrow, Franklin Pierce Law Center

Complaints about lawyers’ lack of professionalism are rampant. Responding to this concern, law schools have been looking at ways to teach it. In this program, speakers will share their perspectives on how to teach and assess professionalism.

This program is particularly relevant to legal writing, reasoning and research professors, as many are already engaged in teaching practical and professional skills. As professors who frequently teach the only small sections of first-year students, they are in a unique position of being able to teach and assess these professional skills. In addition, this program will provide ideas for all professors interested in teaching professionalism.

Teaching professionalism, is, however, not easy. First, “professionalism” includes an incredible spectrum from examining important fundamental questions, such as what it means to integrate moral values, solid work ethic and a balanced life to the more mundane, such as the importance of showing up on time. “Professionalism” also includes a complex array of values, attributes and behaviors, including: altruism, integrity; understanding; humility; respect; emotional intelligence; motivation; effort and perseverance; resourcefulness; reflection; civility; and promptness.

Second, teaching professionalism can be controversial. Critics claim that requiring “professionalism” of law students and lawyers inappropriately imposes certain values. Law professors argue that 1) we shouldn’t have to teach professionalism; 2) we don’t have time to teach this; and 3) we humiliate and offend students by trying to do so.

Third, once a professor seeks to teach professionalism, it is not clear how to teach it, let alone assess it. How do we teach students to be understanding and treat others with respect? Even harder, how do we teach students to have integrity and be motivated? How do we teach professionalism in a way that is respectful, honoring and humane? How do we manage to have high expectations for students’ professionalism, yet also allow students to retain a sense of their own values and authenticity? What can we learn from those who teach professionalism in other disciplines? If we teach professionalism, do we need to assess it? If so, how do we do this? Must we grade students’ professionalism skills along a curve? We begin to answer some of these questions in this program.

Business Meeting at Program Conclusion

10:30 a.m. - 12:15 p.m.
Section on Mass Communication Law

Sex, Thugs and Lock ‘n’ Load: Minors and the Regulation of Expression

Moderator: Richard John Peltz, University of Arkansas at Little Rock William H. Bowen School of Law
Speakers: Alan E. Garfield, Widener University School of Law
Elizabeth Handsley, Professor of Law, Flinders University School of Law, Adelaide, Australia
Marjorie Heins, Founder, Fellow and Coordinator, Brennan Center for Justice, The Free Expression Policy Project, New York, New York
Kevin W. Saunders, Michigan State University College of Law

Janet Jackson’s Super Bowl breast baring provoked the ire of lawmakers and the FCC, re-igniting a long-smoldering debate over minors and the regulation of expression. A subsequent FCC crackdown, abetted by congressional bids for hefty fines, sent Howard Stern packing and kindled a fervor of hand-wringing over whether Saving Private Ryan or a PBS war documentary would draw official censure. FCC power derives substantially from the state interest in protecting children, and from the asserted accessibility of television, but the debate over regulation in the name of minors’ best interests ranges more broadly. From “alcopop” advertising to video game carnage, competing claims over First Amendment doctrine and social science data complicated by the difficulties of empirical proof have reached a fever pitch. Our panelists are accomplished scholars in the area: Professor Garfield, author of “Protecting Children from Speech,” a recent Florida Law Review article; Ms. Heins, author of the book, Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Youth; and Professor Saunders, author of the book, Saving Our Children from the First Amendment. They will address the latest theory and legal developments in this volatile area.

Business Meeting at Program Conclusion

10:30 a.m. - 12:15 p.m.
Section on National Security Law

Outsourcing the War on Terrorism: Extraordinary Rendition, Shadow Warriors, Dirty Assets, and Battlefield Contractors
(Program to be published in the Journal of National Security Law & Policy)

Moderator: Peter Raven-Hansen, The George Washington University Law School
Speakers: Jeffrey F. Addicott, St. Mary’s University of San Antonio School of Law
Joseph Margulies, The University of Chicago, The Law School
Steven L. Schooner, The George Washington University Law School

A perpetual war on terror on a global battlefield stretches our military, intelligence and law enforcement resources to the breaking point. “Outsourcing” missions to third parties, foreign police and intelligence officers, mercenaries and other “shadow warriors,” and private contractors can extend our resources. We outsource interrogation and detention by extraordinary rendition to cooperative foreign states. We outsource covert operations by employing “privatized” special operations forces, mercenaries, or local “dirty assets” who violate their own states’ laws. We outsource interrogation, personal security, or other battlefield missions by contracting with private corporations.

Each of these methods of outsourcing lets us, in effect, wage the war “off the books.” But does it also take the outsourced missions off the law books? Whatever the method, outsourcing poses some or all of these questions: What is the legal authority for it? Do the laws that control the “principal” in an outsourcing relationship apply to the “agent?” If not, what laws apply instead? How are they enforced? Who oversees the relationship? To what extent, if any, is the principal accountable for the acts of the agent?

The panel will address such questions by examining a range of methods by which missions in the war on terrorism have been outsourced. Lecturer Margulies, counsel in Rasul v. Bush and for Mamdouh Habib (who was rendered to Egypt where he was allegedly tortured), will discuss extraordinary rendition. Professor Bradford, author of The Laws of Armed Conflict and Transnational Security in the Age of Terror (2005), will discuss outsourcing covert operations to private “shadow warriors.” Professor Addicott, author of Winning the War on Terrorism (2003), will discuss contractors on the battlefield.

Professor Raven-Hansen, co-author of the casebook National Security Law (4th ed. forthcom 2006) will moderate.

Business Meeting at Program Conclusion

12:30 - 2:00 p.m.

Association of American Law Schools Luncheon

Speaker: The Honorable Guido Calabresi, U.S. Circuit Judge, United States Court of Appeals, Second Circuit, New Haven, Connecticut

The Lawyer As Institutional Empiricist: The Case of Law and Economics

Judge Guido Calabresi is currently a judge on the United States Court of Appeals for the Second Circuit. He received his law degree from the Yale Law School in 1958 (where he was an editor of the law review), and was the dean of the Yale Law School from 1985 to 1994. He holds the position of Sterling Professor Emeritus of Law and Professorial Lecturer in Law at the Yale Law School and has been awarded more than forty honorary degrees.

Judge Calabresi is recognized as one of the founding fathers of law and economics. His most influential contributions to the field are the application of economics to tort law and a legal interpretation of the Coase theorem.

Judge Calabresi has written over 100 articles, nearly 800 opinions of varying lengths, and four books. In 1961, he published a paper titled “Some Thoughts on Risk Distribution and the Law of Torts” in the Yale Law Review. This research was subsequently expanded in his 1970 book titled The Cost of Accidents: A Legal and Economic Analysis. His other major work in law and economics is the article written with Douglas Melamed titled “Property Rules, Liability Rules and Inalienability: One View of the Cathedral” and published in 1972 in the Harvard Law Review. This latter article has eventually become one of the most cited law articles.

2:15 - 4:00 p.m.

Association of American Law Schools Plenary Sessions

Empirical Scholarship

This year’s annual meeting is planned to carry forward recent efforts to enhance the Association’s role as the learned society of the legal academy. The theme for this annual meeting is Empirical Scholarship. There is a long tradition of empirical scholarship in law and there has recently been a burgeoning of interest in conducting empirical research in America’s law schools. In developing the program for these plenary sessions, it is the foundational assumption that there is no “orthodoxy” in so far as what counts as empirical scholarship, beyond the understanding that the objective of all empirical research is to discover the salient facts that are critically important to a reasoned assessment of the fairness and efficacy of legal rules and the enlightened administration of justice. How these facts are uncovered, how they are analyzed, and what conclusions are drawn from them will depend on the skills of the empirical researcher in applying the methodology appropriate to the specific inquiry. It is the aspiration of these plenary sessions to present a wide range of ideas, methodologies and projects involving different types of empirical research in the hope that attendees will not only become better informed about empirical work currently underway at the nation’s law schools, but will perhaps be inspired to consider adding an empirical component to their own scholarly agendas.

This program on Empirical Scholarship will be presented in three concurrent plenary sessions. One plenary session will take up institutional issues that arise when empirical research is conducted in a law school setting. The five topics selected were chosen from a dozen or more that could have been discussed, but are believed to be representative of issues that commonly arise. Another plenary session will focus on empirical research methodology, primarily contemporary social science methodology adaptable to empirical research in law. Again, the topics presented only scratch the surface of the rich methodological lode that could be mined by legal researchers. Another plenary session is the AALS version of “Show and Tell”. Five active empirical researchers will present the projects on which they are working, explain the questions they seek to answer, describe the methodologies employed, report their findings, and answer audience inquiries. Time has been allocated in all three plenary session for audience participation.

2:15 - 4:00 p.m.
AALS Concurrent Plenary Sessions:

Moderator: N. William Hines, University of Iowa College of Law and AALS President

What Should Count as Empirical Research in Law?
Frank W. Munger, New York Law School -view presentation-

The Case for More and Better Empirical Research in Law Schools
John J. Donohue, III, Yale Law School

New Legal Realist Models for Collaborating with Social Scientists: Translating Qualitative and Quantitative Research
Elizabeth Ellen Mertz, University of Wisconsin Law School -view presentation-

How is Collaborative Empirical Scholarship Received in Law Schools’ Promotion Reviews and Other Rewards
Tracey E. George, Vanderbilt University Law School

Why it is so Easy to Lie About the Legal System: Legends, Facts and the Higher Truth
Marc S. Galanter, University of Wisconsin Law School

Moderator and Speaker: Shari Seidman Diamond, Northwestern University School of Law

Exploiting Underused or Difficult to Access Data Bases
Michael Heise, Cornell Law School

Exploring Methodological Frontiers: Making Creative Use of Social Science Methods
Ian Ayres, Yale Law School -view presentation-

Resolving Issues in Coding Nonnumeric Data
Keith Norman Hylton, Boston University School of Law

Communicating the Results of Empirical Studies Effectively to a Broader Community
Lee Epstein, Washington University School of Law

The Lure and Limits of Experimental Studies on the Law
Shari Seidman Diamond, Northwestern University School of Law

Moderator and Speaker: Theodore Eisenberg, Cornell Law School

Investigating Effects of Caps on Damage Awards
Catherine M. Sharkey, Columbia University School of Law

Documenting Patterns of Black Land Loss: A New Legal Realist Approach?
Thomas W. Mitchell, DePaul University College of Law

The Great American Crime Decline: Potential and Current Limits for Comprehending Crime Trends
Franklin E. Zimring, University of California Berkeley School of Law

Evaluating Land Title Reform for Texas “Colonias”
Jane E. Larson, University of Wisconsin Law School

Replication of the Famous Kalven-Zeisel Study of Judges and Juries
Theodore Eisenberg, Cornell Law School  

4:00 - 5:45 p.m.
Joint Program of the AALS Executive Committee and Institute for Constitutional Studies
Hoover, Mezzanine Level, Marriot Wardman Park
Golden Age, Normal Judicial Politics, or Popular Constitutionalism: Constitutional Law Before the Civil War

Moderator: Maeva Marcus, Director, Institute for Constitutional Studies, Washington, DC
Speakers: Saul Cornell, Professor of History, Ohio State University
Robert J. Cottrol, The George Washington University Law School
Mark A. Graber, Professor of Government, University of Maryland and Professor of Law, University of Maryland School of Law
Ariela J. Gross, University of Southern California Gould School of Law
Gerard Nicholas Magliocca, Jr., Indiana University School of Law, Indianapolis

This panel explores revisionist scholarship on antebellum constitutional politics. Traditional wisdom, best articulated by Charles Warren and Robert McCloskey, regards this era as a golden age, marked by a sharp separation between law and politics. The participants on this panel disagree. American politics was saturated with constitutional concerns. The primary motor driving American constitutional development before the Civil War was politics out of doors, exhibited for example in popular responses to the Alien and Sedition Acts and the use of militia as a form of constitutional protest. American constitutional law was saturated with politics. Court appointments were made with political ends in mind, most justices had previously been prominent politicians, and such constitutional struggles as Cherokee removal can only be understood at the intersection of law and politics.

4:00 - 5:45 p.m.
AALS Committee on Recruitment and Retention of Minority Law Teachers Program

Surviving and Thriving Tenure: Concrete Steps for People of Color and Their Law Schools to Take to Successfully Complete the Tenure Process

Moderator: Leonard M. Baynes, St. John’s University School of Law
Speakers: David B. Cruz, University of Southern California Gould School of Law
Emily M.S. Houh, University of Cincinnati College of Law
Spencer A. Overton, The George Washington University Law School
Suellyn Scarnecchia, University of New Mexico School of Law
Adrien Katherine Wing, University of Iowa College of Law

This interactive panel will explore strategies for faculty members of color to survive and thrive through the tenure process. The AALS Committee on Recruitment and Retention of Minority Law Teachers distributed a preliminary AALS report, which showed that the tenure rate for faculty members of color was much lower than their white peers for those hired in 1991-1992 and 1998-1997. The 2006 panel is designed to empower current untenured minority faculty and their institutions to improve these overall tenure rates. The panelists will discuss best practices compiled by different law schools to mentor minority faculty to increase their chances of receiving tenure. Each panelist will also discuss his/her individual strategies for success. Lastly the panel will provide an opportunity for members of the audience to participate in developing their own strategies for success.

4:00 - 5:45 p.m.
AALS Scholarly Paper Presentation

Moderator: Gerald Torres, The University of Texas School of Law

Now in its twenty-first year, the AALS Scholarly Papers competition is open to individuals who have been in law teaching seven years or less. The winners, who will present and discuss their papers were chosen by a panel of seven distinguished law scholars. Professor Torres, chair of the selection committee, will invite questions from the audience and lead a discussion of the issues presented by the winning papers.

Winning Paper: Was Shelley v. Kraemer Correctly Decided? Some New Answers
Mark D. Rosen, Chicago-Kent College of Law Illinois Institute of Technology

Honorable Mention Paper: Semiotic Disobedience
Sonia K. Katyal, Fordham University School of Law

4:00 - 5:45 p.m.
Section on Academic Support

The First R: The Role of Students’ Reading Skills in Decoding the Law and Performing Well in Law School

Moderator: Rachel A. Rouse, DePaul University College of Law
Speakers: Dorothy H. Evensen, Associate Professor, College of Education, The Pennsylvania State University, University Park, Pennsylvania
Ruth A. McKinney, University of North Carolina School of Law
David Nadvorney, City University of New York School of Law at Queens College

Critical reading is an essential skill for the aspiring lawyer. Law school is difficult not only because of the volume of reading, but also because it is comprised largely of material that is unfamiliar and convoluted. Critical reading is imperative because it forms the foundation upon which classroom discussion is built and upon which exam content relies. This program will explore current research on how reading skills affect law school performance and strategies for improving the skill of critical reading in your students. After the presentation of studies examining critical reading skills in students, teaching demonstrations will be conducted to explore ways to improve these skills in the classroom.

Business Meeting at Program Conclusion

4:00 - 5:45 p.m.
Section on Administrative Law

Empirical Study of Administrative Law: Scholarship and Policy Implications

Moderator: Jody Freeman, University of California at Los Angeles School of Law
Speakers: Curtis W. Copeland, American National Government Specialist, Library of Congress, Congressional Research Service, Washington, District of Columbia
Steven P. Croley, The University of Michigan Law School
Anne M. Joseph, University of California Berkeley School of Law
Cornelius Kerwin, Provost, American University, Washington, District of Columbia -view outline-
M. Elizabeth Magill, University of Virginia School of Law

This program will focus on the empirical study of agency behavior and its role in administrative law. What are agencies actually doing and how do we know? What questions are scholars asking about agency behavior and what methodologies are they using to find out? And why does it matter? Scholarly theories about administrative law ought to be informed by an accurate picture of what agencies do, yet we know relatively little about many dimensions of agency processes. How often do agencies resort to informal instruments such as guidance? At what rate are agency rules struck down and why? Questions such as these are important not only for scholarship but also for law reform. We are entering a time of renewed congressional interest in the study of both administrative decisionmaking and its treatment in the courts. Congress recently reauthorized the Administrative Conference of the United States (ACUS) and has expressed an interest in sponsoring empirical work. The panel consists of scholars currently doing cutting edge empirical work in administrative law, as well as scholars who are sponsoring empirical work with a view to feeding it into the policy process.

Business Meeting at Program Conclusion

4:00 - 5:45 p.m.
Section on Civil Procedure

The Civil Jury in the Shadow of Tort Reform

Moderator: Nancy S. Marder, Chicago-Kent College of Law Illinois Institute
of Technology
Speakers: B. Michael Dann, Superior Court Judge (Retired), Williamsburg, Virginia
Joseph Sanders, University of Houston Law Center
Suja A. Thomas, University of Cincinnati College of Law -view handout- -view speech- -view paper- -view homepage-
Neil Vidmar, Duke University School of Law

The civil jury is under attack, particularly as politicians, doctors, and representatives of the insurance industry urge the need for tort reform. They focus on high medical malpractice premiums and doctors who threaten to abandon their medical practices because they can no longer afford their premiums. They identify the civil jury as the culprit. The charge against civil juries is that they award excessive damages, particularly in frivolous lawsuits, and that this, in turn, drives up the cost of medical malpractice premiums. The quick-fix solutions that a number of states have adopted include capping non-economic damage awards and taking certain kinds of cases away from juries. The public debate, however, has proceeded with scant evidence that the jury is to blame and with little study as to the effects these quick-fix solutions, which wrest power from juries, will have on the jury over time.

This panel will focus on the health and survival of the civil jury in an era of tort reform. Panelists, drawn from academia and the bench, will address a number of issues, beginning with the empirical evidence, if any, that there is a crisis for which the civil jury is responsible. Much of the scholarship on the jury draws from empirical studies to offer reforms that will actually aid jurors in performing their tasks, rather than limiting their tasks. Yet, these proposals have failed to garner support from politicians, policy-makers, and the press. Thus, this panel also will address how empirical findings can play more of a role in informing public debate and shaping public policy so that the civil jury continues to serve a vital function in our democracy.

Business Meeting at Program Conclusion

4:00 - 5:45 p.m.
Section on Continuing Legal Education, Co-Sponsored by Section on New Law Professors

Writing for Credit-Converting CLE Materials into Published Works and Vice Versa

Moderator: Miriam A. Cherry, Samford University Cumberland School of Law
Speakers: Kristen David Adams, Stetson University College of Law
Andrew Beckerman-Rodau, Suffolk University Law School
Darby Dickerson, Stetson University College of Law -view outline-
James D. Thaler, Jr., Stetson University College of Law

The general theme of this program will focus on parlaying CLE papers into law review articles and other publishable works, as well as developing CLE programs from existing published works.

The panel will discuss the involvement of CLE departments, law professors and law review students and their faculty directors in:
1. Developing CLE programs from articles and other publications;
2. Converting a CLE program into a law review symposium and/or speaker presentations into law review articles;
3. Directing law review student editorial boards in establishing non-symposia CLE seminars; and
4. Establishing law professors as reference resources for lawyers

From this program, it is hoped that a relationship will be developed between CLE departments, law faculty and law reviews to encourage law reviews to consider CLE papers written by law faculty as the basis for developing a law review article or articles. Additionally, the mechanics of converting a CLE presentation into a law review article will be discussed.

Business Meeting for Section on Continuing Legal Education at Program Conclusion

4:00 - 5:45 p.m.
Section on Criminal Justice

The Promise of Gideon: Unfulfilled?
(Program to be published in The Ohio State Journal of Criminal Law)

Moderator: Ellen S. Podgor, Georgia State University College of Law
Speakers: Douglas L. Colbert, University of Maryland School of Law
Eric M. Freedman, Hofstra University School of Law -view abstract- -view paper-
Bryan Stevenson, New York University School of Law

In Gideon v. Wainwright, the Supreme Court ruled that “[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” Lawyers, the Court stated, “are necessities, not luxuries.” Although this case was issued on March 18,1963, there remains today serious gaps in achieving the promise set forth in this landmark decision. Recently the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants issued a report, following a series of public hearings, finding that “forty years after Gideon, the promise of equal justice for the poor remains unfulfilled in this country.” This panel will examine whether the “right to counsel,” as provided for by the Gideon decision, has been fulfilled. They will also discuss specific areas, for example, the right to counsel in capital post-conviction matters.

Business Meeting at Program Conclusion

4:00 - 5:45 p.m.
Section on Donative Transfers, Fiduciaries and Estate Planning

Inheritance Law and the Empirical Scholar

Moderator: E. Gary Spitko, Santa Clara University School of Law
Speakers: Mary Louise Fellows, University of Minnesota Law School
Michael Heise, Cornell Law School
Justin D. Levinson, University of Hawaii William S. Richardson School of Law
Ray D. Madoff, Boston College Law School
Robert H. Sitkoff, Northwestern University School of Law

This program will focus on opportunities for empirical scholarship in inheritance law and methodological issues particularly relevant to empirical scholarship in inheritance law.

Some of the panelists will discuss their present and past empirical research in inheritance law with a focus on methodological issues that have arisen of particular concern to inheritance law scholars. More generally, panelists also will consider the underdeveloped opportunities for empirical work in the donative transfers area, the areas of inquiry for which empirical scholarship might prove most helpful in inheritance law reform efforts, and some of the empirical methods that might prove most useful to inheritance law scholars. Finally, the panel also will address issues

relating to empirical project design and funding, collaboration by law professors with social scientists doing empirical scholarship, the importance of peer review, and placement of empirical legal scholarship.

Business Meeting at Program Conclusion

4:00 - 5:45 p.m.
Section on Education Law

Clash of the Titans: Sex, Religion and Morality in America’s Schools
(Program to be published in the Children’s Legal Rights Journal)

Moderator: Hazel Glenn Beh, University of Hawaii William S. Richardson School of Law -view outline-
Speakers: Lynn M. Daggett, Gonzaga University School of Law -view outline-
Eric A. De Groff, Regent University School of Law
Maurice R. Dyson, Southern Methodist University Dedman School of Law
Frank S. Ravitch, Michigan State University College of Law -view outline-

When it comes to matters concerning the sexual life of children, our nation’s schools are a significant battleground for warring interests. The Supreme Court has long recognized a parent’s right to “control the education of their own” as well as the State’s “high responsibility for education of its citizens.” Children, too, have recognized rights with respect to both the education they receive and their own sexuality, although they are sometimes forgotten in the fray. When it comes to sexual expression and sex education, whose interests should prevail? This panel will discuss how the law is and should be responding to the clash of competing interests concerning the role of schools in the sexual development of children.

With respect to the challenges of educating sexual minority youth, Professor Dyson will discuss the public school obligation to provide a safe educational environment for lesbian, gay, bisexual and transgender youth and explore the social costs and benefits associated with tolerance programs and other solutions such as the Harvey Milk High School, the nation’s first public school established to meet the needs of LGBT youth. Professor Daggett will consider whether states can and should impose requirements on private, and particularly religiously affiliated private schools, to teach a nondiscriminatory curriculum as either a general condition in the state’s compulsory education statutes, or as a condition on the receipt of state funds.

In the area of sex education, Professor DeGroff will focus on how state laws are currently accommodating parental rights with regard to sex education/family life, HIV/AIDS awareness programs, and school based health services. Professor Ravitch will explore the constitutional issues implicated when sex education conflicts with religious values and alternatively whether abstinence only instruction implicates the establishment clause. Professors DeGroff and Ravitch will also consider whether opt-out provisions provide a satisfactory resolution to competing tensions.

Finally, Professor Beh will consider matters of sexual expression and sex education from the child’s perspective and assess whether the child’s rights are adequately protected.

Business Meeting at Program Conclusion

4:00 - 5:45 p.m.
Section on International Human Rights Law

Out of Bounds? Considering the Reach of International Human Rights Law

Moderator: Deena R. Hurwitz, University of Virginia School of Law
Topics and Speakers:
The Approach of the Inter-American System:
Christina Cerna, Senior Human Rights Specialist, Inter-American Commission on Human Rights, Washington, District of Columbia

Comparative Models:
John Peter Cerone, New England School of Law

U.S. Exceptionalism:
Michael Ratner, President, Center for Constitutional Rights, New York, New York

Scope of Application of the ICCPR and other Human Rights Treaties:
Andre M. Surena, Office of the Legal Advisor, U.S. Department of State (ret.), Washington, DC

The Approach of the European System
Nina Vajic, Judge, European Court of Human Rights, Council of Europe, Strasbourg, France

In the decades following the adoption and entry into force of the major human rights treaties, the capacity of states to project their power beyond their borders has dramatically increased. A crucial consequence of the projection of this power is the increasing breadth of the state’s impact on the enjoyment of human rights in territories far beyond its physical frontiers.

In addition to traditional situations of armed conflict and cross-border law enforcement operations, individuals today may find themselves in the power of states in fairly complex configurations. States are increasingly operating through multilateral frameworks, e.g. through the United Nations or regional peacekeeping operations with increasingly expansive mandates. In addition, states are now purporting to create zones beyond the reach of their human rights obligations. The United States detention facilities at Guantanamo Bay, on U.S. ships, and in secret locations, as well as Australia’s use of Pacific island territories for asylum seekers raise controversial questions as to the nature and purpose of human rights norms.

Whether such extraterritorial conduct is beyond the reach of the relevant states’ obligations under international human rights law is a question very much alive before international courts and human rights mechanisms. Increasing numbers of cases involving alleged human rights violations committed outside the physical territory of the state are being adjudicated in various international fora. These institutions have already developed a varied jurisprudence, accepting extraterritorial application of norms to the different scenarios to differing degrees. While there has recently been some normative convergence, the enthusiastic approach of the Inter-American Commission on Human Rights remains in sharp contrast to the cautious methodology of the European Court of Human Rights. And while the International Court of Justice in its recent Advisory Opinion on the Israeli wall found both International Covenants to apply extraterritorially, the brevity of its analysis leaves many unanswered questions.

The broad range of cases encompasses a similarly broad range of issues. Should states be bound by human rights treaties with respect to their extraterritorial conduct? If so, in what circumstances and under what theory? Will different standards be required for acts or omissions? for failing to respect or failing to ensure? for civil and political rights or economic and social rights? for the acts of officials and the acts of private agents? What weight should be given to the intent of the drafters in such cases? And how do the standards differ between treaty and customary law? What about treaties developed within and for a particular geographic region? Do such treaties apply only within the legal space of those regions? Should they?

This panel will bring together scholars, practitioners, and international judges in an attempt to answer these questions. The panel will have five speakers and a moderator.

Business Meeting at Program Conclusion

4:00 - 5:45 p.m.
Section on Law and Communitarian Studies

A Conversation About Abortion

Moderator: Robert F. Cochran, Jr., Pepperdine University School of Law
Speakers: Jack M. Balkin, Yale Law School
Teresa S. Collett, University of St. Thomas School of Law
Elizabeth B. Mensch, State University of New York at Buffalo School of Law

Given the lack of thoughtful public debate about abortion in recent decades, it would appear that the answer to the question raised by Professor Mensch and Alan Freeman in the title of their thoughtful book, The Politics of Virtue: Is Abortion Debatable? (Duke, 1993) is “no.” But it may be that the time is right to re-open discussion on this difficult issue. It may be that pro-life losses at the courthouse and recent pro-choice losses at the ballot box may have opened up the opportunity for discourse. Some of the “judicial opinions” in Professor Balkin’s newly published What Roe Should Have Said (Yale, 2005) suggest the possibility of a conversation (the opinions of others suggest not). For communitarians, concerned with the nature of our public discourse, the importance of a reasoned conversation about this issue is paramount. One wonders whether any Supreme Court nominee of any position or non-position on this issue will be able to get a vote from any foreseeable United States Senate. The abortion issue brings to mind several communitarian themes. Should the unborn child be a part of the community? No other issue is so dominated by (in Mary Ann Glendon’s phrase) “rights talk.” Is this an area where “rights talk” of unborn children, of pregnant women is appropriate? Or has “rights talk” made thoughtful discussion of this issue impossible? Communitarians prefer to resolve issues through intermediate communities and persuasion, rather than law. Is this issue appropriately left to persuasion, rather than law? The abortion debate has been framed in Enlightenment liberal terms rights, privacy, due process. Is there communitarian language with which we might better address this issue? Hear contributors to the above-mentioned books address this important issue.

Business Meeting at Program Conclusion

4:00 - 5:45 p.m.
Section on Law and Interpretation

Lost (and Found) in Translation

Moderator: Carol Sanger, Columbia University School of Law
Speakers: Sandra L. Bermann, Chair, Department of Comparative Literature, Princeton University, Princeton, New Jersey
Eric T. Cheyfitz, Professor of American Studies and Humane Letters, Department of English, Cornell University, Ithaca, New York
Philip P. Frickey, University of California, Berkeley School of Law
Pierre Legrand, Professor of Law and Director of Postgraduate Comparative Legal Studies, Universite Patheon-Sorbonne, Paris, France

Issues of translation permeate legal transactions: enemy aliens are interrogated, treaties are entered into, non-English speaking witnesses testify at trial and sign consent forms in hospitals. To some extent the law bumbles along in each of these, translating when necessary but often without much concern about the quality of translation and without sustained analysis of the work of translation. Legal scholars have thought about translation as a metaphor but not with much gusto about translation as a practice.

Outside the legal academy, however, interesting things are going on in the emerging field of translation studies. Although necessarily an interdisciplinary enterprise (anthropology, linguistics, philosophy, cultural studies, as well as translator training are all implicated), most of its focus has been on the translation of literary works. This panel introduces and applies theories of translation as developed in arts and letters to the translations of texts, testimony, and transactions in law.

This session takes as background the following discussion from The Translation Studies Reader (2nd ed., 2004) by Lawrence Venuti, the “dean of translation studies.” The history of translation theory “can be imagined as a set of changing relationships between the relative autonomy of the translated text and two other categories, equivalence and function. Equivalence has been understood as ‘accuracy’ or ‘fidelity’. Function has been understood as the potentiality of the translated text to release diverse effects, beginning with the communication of information and the production of a response comparable to the one produced by the foreign text in its own culture. Yet the effects of translation are also social, and have been harnessed to cultural, economic and political agendas.”

The panelists will explore issues of autonomy, equivalence, and function as well as the ethics of translation in two primary contexts: the European Union, and, from a historical perspective, federal Indian law. They will discuss how law confronts the differences that generate the need for translation, as well as various forms of “harnessing” that translation practices themselves can give rise to.

Sandra Bermann is the editor of Nation, Language, and the Ethics of Translation (2005); Eric Cheyfitz is the author of The Poetics of Imperialism: Translation and Colonization from the Tempest to Tarzan (1991).

Business Meeting at Program Conclusion


6:30 - 8:30 p.m.
Georgetown University Law Center and The George Washington University Law School
Reception for all Meeting Registrants

Shuttle buses leave from the Marriott Wardman Park beginning at 6:00 p.m. The last bus will leave Georgetown University Law Center at 9:30 p.m.

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