2:00 pm-5:00 pm
Section for New Law Professors
Grand Ballroom D, First Floor, Hilton New Orleans Riverside

Call for Papers in Transformational Law
(Program to be published in Stetson Law Review)

Moderator:
Joseph F. Morrissey, Stetson University College of Law

Speakers Selected from a Call for Papers:
Thaddeus A. Hoffmeister, University of Dayton School of Law
Jessica Knouse, University of Toledo College of Law
Nicole Porter, University of Toledo College of Law
Monica Teixeira de Sousa, New England Law-Boston

This year the Section held a call for papers for new law professors and four papers were selected from the submissions. The goal of the call for papers was to give newer law professors opportunities to present and get feedback on their work, network with more established scholars in their field and hone their presentation skills.
The theme of all paper submissions were to coordinate with the theme for the AALS’s Annual Meeting of “Transformative Law.” Thus submissions were to relate to the transformative nature of the law.  Included in that broad category were papers that suggest legal reform or might focus on legal initiatives to help remediate the current economic crisis.  Or papers that may more generally suggest legislative reform, policy initiatives, or particular judicial perspectives or interpretations. Papers might also focus on the intersection of law with other social sciences to better address needs and suggestions for social and political transformation.

Business Meeting at Program Conclusion.

2:00 pm-5:00 pm
Section on Real Estate Transactions, Co-Sponsored by Section on Property Law
Magnolia, Third Floor, Hilton New Orleans Riverside

Law as Transformative Agent: Thinking and Doing Property in New Categories
(Program will be published in the Indiana Law Review)

Co-Moderators:
Carol N. Brown, University of North Carolina School of Law
Lloyd T. Wilson, Indiana University, Indianapolis School of Law

Speakers:
Steven J. Eagle, George Mason University School of Law
Robin Paul Malloy, Syracuse University College of Law
Thomas W. Mitchell, University of Wisconsin Law School
Rigel C. Oliveri, University of Missouri School of Law, Selected from a Call for Papers
Eduardo Moises Penalver, Cornell Law School
Aleatra P. Williams, Charleston School of Law, Selected from a Call for Papers

As scholars in the areas of property law and the law of real estate transactions, we want to explore proposals for change in property theory and praxis. The mortgage foreclosure, credit, and housing crises have prompted re-examination of established categories of legal analysis, but that analysis does not capture the breadth of innovative thinking by scholars in the academy. This program seeks to explore all approaches to property and real property transactions, including proposals that have been previously rejected as well as new ideas.
The program will include discussions of the transformative power of thinking in new categories concerning the nature and uses of property. Is it appropriate to recognize new forms of property, new interests in property, or new interest holders? How can theory transform practice? Similarly, the program will examine the transformative power of praxis. How can responses to transactional challenges serve as transformative agent? How can transactional innovations promote reflection and new theorizing?

Business Meetings for Property Law at Program Conclusion.

Business Meeting for Real Estate Transactions at Program Conclusion.

Friday, January 8, 2010

8:30 am-10:15 am
Section on Creditors’ and Debtors’ Rights
Rosedown, Third Floor, Hilton New Orleans Riverside

The Future of Debtor-Creditor Scholarship

Moderator:
Jason J. Kilborn, The John Marshall Law School

Speakers Selected from a Call for Papers:
Jessica D. Gabel, Georgia State University College of Law
Michelle M. Harner, University of Maryland School of Law
Sarah P. Woo, Stanford Law School

Both domestically and internationally, for both well-known businesses and anonymous consumers, world events lately have thrust issues of debt, creditor rights, and debtor protection into the spotlight. The field of debtor-creditor scholarship has perhaps never been as fertile as it is today. Its future will ultimately become the responsibility of those having entered the academy during this most robust period. This year’s program is designed to highlight the contributions of those who have just begun to toil in this field, to reveal for the Section the newest ideas from recent newcomers, to give these developing scholars an opportunity to present their thoughts and receive feedback in a friendly and receptive forum, and to give more experienced section members a chance to mold and inspire these developing producers – and the future of our Section – with constructive questions and comments. Three work-in-progress presentations of 15-20 minutes will be followed by 10-15 minutes of questions and comments from the audience.

Business Meeting at Program Conclusion.

8:30 am-10:15 am
Section on Nonprofit and Philanthropy Law
Belle Chasse, Third Floor, Hilton New Orleans Riverside

Rebuilding New Orleans, Transforming America:

The Role of Nonprofit Organizations in New Orleans and National Recovery

Moderator:
Mark Sidel, University of Iowa College of Law

Speakers:
Brian D. Galle, Florida State University College of Law, Selected from a Call for Papers
Ellen M. Lee, Senior Vice President, Programs, Community Revitalization Program Director, Greater New Orleans
 Foundation, New Orleans, Louisiana
David A. Marcello, Tulane University School of Law
Laura Tuggle, Managing Attorney, Southeast Louisiana Legal Services Disaster Housing Assistance Program,
 New Orleans, Louisiana

The Section’s panel will bring together academic, legal and philanthropic leaders to highlight and analyze the role of nonprofit and community development organizations in New Orleans and Gulf coast recovery, as well as recovery in the national economic crisis, and to discuss implications for legal regulation of nonprofit and charitable organizations.
Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Art Law
Prince of Wales, Second Floor, Hilton New Orleans Riverside

Mapping Art Spaces I: University and Nonprofit Art

Moderator:
Olufunmilayo B. Arewa, Northwestern University School of Law

Speakers Selected from a Call for Papers:
Deborah Gerhardt, University of North Carolina School of Law
Brian A. Glassman, Cleveland State University Cleveland-Marshall College of Law
Alina Ng, Mississippi College Mississippi College School of Law
Camille M. Riley, West Virginia University College of Law

Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Civil Procedure, Co-Sponsored by Section on Litigation
Versailles Ballroom, Third Floor, Hilton New Orleans Riverside

Revisiting Discovery

Moderator:
Lonny S. Hoffman, University of Houston Law Center

Speakers Selected from a Call for Papers:
Steven S. Gensler, University of Oklahoma College of Law
Suzette M. Malveaux, The Catholic University of America Columbus School of Law
Adam N. Steinman, University of Cincinnati College of Law

Since the Federal Rules of Civil Procedure were adopted in 1938, discovery has played a central role in the American litigation system. Indeed, for many years, pleading was considered of little importance compared to discovery. But as courts and commentators have focused on the costs of discovery, there have been multiple efforts—with varying degrees of successs—to rein in discovery. One recent example has been the apparent tightening of pleading standards in Twombly, a tightening which the Court justified in part by noting the high cost of discovery in complex antitrust actions. In light of Twombly and other developments, the time is right for a renewed focus on the relationship between discovery and other aspects of the litigation system, including pleading and summary judgment. The need for further consideration of the role of discovery in the litigation process as a whole led to our call for papers. The papers selected will be the foundation of our program.

Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Contracts
Melrose, Third Floor, Hilton New Orleans Riverside

New Approaches to Teaching Contracts: A Teach-In

Moderator:
Martha M. Ertman, University of Maryland School of Law

Speakers:
Douglas G. Baird, The University of Chicago Law School
Scott J. Burnham, University of Montana School of Law
Carol L. Chomsky, University of Minnesota Law School
Jonathan M. Hyman, Rutgers School of Law-Newark, Selected from a Call for Papers
Emily E. Kadens, The University of Texas School of Law
Christina L. Kunz, William Mitchell College of Law
Shruti Rana, University of Maryland School of Law, Selected from a Call for Papers
Deborah A. Schmedemann, William Mitchell College of Law, Selected from a Call for Papers

This panel explores a variety of approaches to teaching contracts. We will begin with a defense of the Langdellian method which centers on teaching classic cases, and then look at a number of alternative approaches minted in recent years. The goal is to give even those wedded to traditional teaching, new approaches that they might begin slowly to introduce in the classroom. The motivation for the panel is, in part, changes in the structure of practice that provide less time for mentoring and learning, and will require new lawyers to hit the ground running. It also aims to help professors respond to a new generation of students who are wired and thus synthesizing material and acquiring skills in new ways. Invited presentations will defend the Socratic method using canonical cases, and present alternatives including problem methods, drafting, negotiation, and interactive case books. In addition, a call for papers will produce two presentations of other innovations in teaching contracts. As a whole, the panel strives to provide models for experienced contracts professors to de-laminate their notes, and newer professors to move beyond their own professors in developing new ways to convey the beauty, complexity, and occasional imperfections of contract law.

Business Meeting at Program Conclusion

10:30 am-12:15 pm
Section on Criminal Justice
Belle Chasse, Third Floor, Hilton New Orleans Riverside

Neuroscience, Cognitive Psychology and the Criminal Justice System

Moderator:
Susan A. Bandes, DePaul University College of Law

Speakers:
Alafair S. Burke, Hofstra University School of Law, Selected from a Call for Papers
John Darley, Professor, Psychology Department, Princeton University, Princeton, New Jersey
Nita Farahany, Vanderbilt University Law School, Selected from a Call for Papers
Andrew Eric Taslitz, Howard University School of Law

The explosive growth of knowledge in the field of cognitive neuroscience provides both opportunities and challenges for the criminal justice system. This panel will explore the potential, as well as the pitfalls, of using cognitive neuroscience to shed light on criminal justice theory and practice. Topics include, among others, implicit bias in decision-making, the dynamics of tunnel vision, brain imaging to assess prior knowledge or veracity, group-level emotion and jury dynamics, the effects of emotionally-charged evidence on reasoning, and the effects of brain injury on criminal responsibility.
Business Meeting at Program Conclusion.

10:30 a.m.-12:15 pm
Section on Education Law
Jefferson, Third Floor, Hilton New Orleans Riverside

Five Years After Katrina: Access to Education
(Program to be published in the Journal of Law & Education)

Moderator:
Mark D. Bauer, Stetson University College of Law

Speakers Selected from a Call for Papers:
Scott Robert Bauries, University of Kentucky College of Law
Robert A. Garda, Jr., Loyola University New Orleans College of Law
Daniel Kiel, The University of Memphis Cecil C. Humphreys School of Law

What has New Orleans – and the rest of the United States – learned about education in the wake of Hurricane Katrina?

In August of 2005, one of recorded history’s most powerful hurricanes hit New Orleans, and the days that followed included flooding that damaged or destroyed much of the city’s infrastructure and systems. Forced to rebuild – indeed, reimagine – the New Orleans school system, the state instituted dramatic reforms, including school choice, greater accountability, and the creation of charter schools for the majority of students.
Five years later, what have we learned? Is the New Orleans school system working, and working better? Is the role of the state appropriate, versus local control? Are these reforms best for all students, or just those in primary or secondary schools? Have these reforms fully accommodated students with special needs and disabilities? And have these reforms created a model for the rest of the country?

Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Family and Juvenile Law, Co-Sponsored by Sections on Children and the Law, Poverty Law, Sexual Orientation and Gender Identity Issues, Women in Legal Education
Elmwood, Third Floor, Hilton New Orleans Riverside

Money, Intimacy, Law and the Contours of Inequality
(Program to be published in Journal of Law & Family Studies)

Moderator:
Alicia B. Kelly, Widener University School of Law

Speakers:
John G. Culhane, Widener University School of Law
Maxine S. Eichner, University of North Carolina School of Law
Michele Goodwin, University of Minnesota Law School
Daniel L. Hatcher, University of Baltimore School of Law, Selected from a Call for Papers

Increasingly, there is a call for restraint in or even abandonment of law’s regulation of intimate life, allowing for relationships forged from self-determination and free choice. This ideal, attractive as it may be, often defies reality. It remains the case that individuals are not all equally free. What is the appropriate role for law regarding inequalities manifest in family life? With a focus on wealth disparities, this program will explore various interactions between money, intimacy and law and the degree to which law serves the goal of equality across gender, sexual orientation, race and class. Because the topic is potentially so broad, the panelists will highlight a few instances where these issues converge. Discussion will include the legal regulation of economic activity in committed adult intimate relationships, and in parent-child relationships.

Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Financial Institutions and Consumer Financial Services
Magnolia, Third Floor, Hilton New Orleans Riverside

Reforming the Institutional Structure of Financial Regulation

Speakers:
Jeffrey N. Gordon, Columbia University School of Law, Selected from a Call for Papers
Jose M. Gabilondo, Florida International University College of Law, Commentator

Julie A. Hill, University of Houston Law Center, Selected from a Call for Papers
Anna Gelpern, American University Washington College of Law, Commentator

Daniel Schwarcz, University of Minnesota Law School, Selected from a Call for Papers
Erik F. Gerding, University of New Mexico School of Law, Commentator

As the international community struggles to manage the current global financial and economic crisis, policymakers around the globe have proclaimed their commitment to domestic and international regulatory reform. There is widespread agreement that the current framework for financial regulation is ill-suited for promoting efficient financial markets or for preventing crises. In April of 2009, the G-20 countries expressly committed to strengthening their domestic financial regulatory regimes. In the U.S., the Obama Administration has stated that it intends to adopt significant reforms in the near- and medium-term. The U.S. policy agenda already includes creating an entity charged with ensuring systemic stability, eliminating gaps in the current regulatory framework (especially with regard to derivatives and hedge funds), reexamining capital requirements for certain financial institutions, and extending resolution powers to non-depository financial institutions. Commentators, policymakers, and scholars have also proposed that the U.S. restructure its existing arrangement of financial regulators, adopt stronger substantive regulation of consumer financial products, and enhance oversight of credit-rating agencies and institutions that comprise the system for payments and settlements. This program will evaluate the reform agendas articulated by the official sector in the U.S. and abroad in light of the broader discussion about financial regulation among commentators, industry, and academics. It will examine the merits of various proposals now on the table as well as the practical challenges for successfully implementing these proposals.

Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Law, Medicine and Health Care, Co-Sponsored by Section on Constitutional Law
Fountain Room, Third Floor, Hilton New Orleans Riverside

Constitutional Health Law: Pharmaceutical Regulation and Commercial Speech

Moderator:
Kevin Outterson, Boston University School of Law

Speakers:
Richard A. Epstein, The University of Chicago Law School
Sean Flynn, American University Washington College of Law
Aaron S. Kesselheim, Instructor in Medicine, Harvard Medical School Division of Pharmacoepidemiology and
 Pharmacoeconomics, Boston, Massachusetts
David Orentlicher, Indiana University, Indianapolis School of Law, Selected from a Call for Papers
Neil M. Richards, Washington University School of Law

In the past few years, the drug and device industry have used constitutional litigation, sometimes with spectacular effectiveness, to overturn statutes and challenge regulations. Examples include Wyeth v. Levine; Riegel v. Medtronic; and Abigail Alliance.

Even more remarkable has been the commercial speech litigation. United States v. Caronia (DC case on free speech and off-label promotion); and IMS v. NH (1st Cir; first amendment claims against a data privacy statute aimed to curb marketing abuses). Other important 1st Amendment FDA cases include Thompson v. Western States Medical Center, 535 U.S. 357 (2002) (advertising unapproved pharmacy compounding); Washington Legal Foundation v. Henney, 128 F. Supp. 2d 11 (Dist Ct. D.C., 2000) (off label promotion).
Clearly, something is afoot, with powerful constitutional arguments deployed to challenge democratically-enacted statutes. But the plaintiffs aren’t oppressed minorities, but some of the world’s most powerful corporations, with incredible lobbying resources in Washington, the states, and around the globe. How do we mesh theories of the constitution with these cases?

The focus of the panel will be commercial speech litigation in the drug industry. The cases mentioned above will be discussed, with significant discussion of the broader constitutional issues and impact on theory.

10:30 am-12:15 pm
Section on National Security Law
Jasperwood, Third Floor, Hilton New Orleans Riverside

Barbarians at the Gate (or Within?):

New Developments in the Detention and Prosecution of Terrorist Suspects
(Program to be published in Journal of National Security Law & Policy)

Moderator:
Michael J. Kelly, Creighton University School of Law

Speakers:
Baher Azmy, Seton Hall University School of Law, Selected from a Call for Papers
Erwin Chemerinsky, University of California, Irvine Donald Bren School of Law
Robert M. Chesney, The University of Texas School of Law
David D. Cole, Georgetown University Law Center
Mary Ellen O’Connell, Notre Dame Law School
Stephen I. Vladeck, American University Washington College of Law

Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Professional Responsibility
Grand Ballroom C, First Floor, Hilton New Orleans Riverside

The Transformative Effect of International Initiatives on Lawyer Practice and Regulation:
A Case Study Focusing on FATF and Its 2008 Lawyer Guidance

Moderator:
Laurel S. Terry, Pennsylvania State University The Dickinson School of Law

Speakers:
James Thuo Gathii, Albany Law School
Thomas D. Morgan, The George Washington University Law School
Paul D. Paton, University of the Pacific Mc George School of Law, Selected from a Call for Papers
Ellen S. Podgor, Stetson University College of Law
Kevin L. Shepherd, Esquire, Venable LL.P., Baltimore, Maryland
Colin Tyre, Esquire, Arnot Manderson Advocates Library, Edinburg, United Kingdom

This panel will consider the impact of international initiatives and their potential for having a transformative effect on lawyer practice and regulation. The panel will do so by focusing on the Financial Action Task Force 40+ 9 Recommendations and the 2008 FATF Lawyer Guidance. Many U.S. lawyers and academics are not familiar with the FATF, but it is a 30-country intergovernmental organization whose recent actions will affect a broad swath of U.S. lawyers, including transactional lawyers who help their clients buy or sell real estate, manage trusts, or help their clients create, buy, sell, or manage corporations. The first part of the session will feature two of the lawyers who negotiated with the FATF on behalf the world’s legal profession. They will address the history and negotiating dynamics that led to the FATF 2008 Lawyer Guidance and explain how it is being implemented in the U.S. and in other countries. The second part of the session will consist of reflections and reactions from leading academics from various disciplines, including legal ethics, white collar crime, and international commercial (and comparative) law.

Business Meeting at Program Conclusion.

Saturday, January 9, 2010

8:30 am-10:15 am
Section on Agency, Partnership, LLC’s , and Unincorporated Associations
Fountain Room, Third Floor, Hilton New Orleans Riverside

Vicarious, Individual, and Limited Liability:

Responsibility for Wrongful Conduct and Unincorporated Firms

Moderator:
Deborah A. De Mott, Duke University School of Law

Speakers Selected from a Call for Papers:
Daniel S. Kleinberger, William Mitchell College of Law
Martin Petrin, Law Student, University of California, Los Angeles School of Law
Geoffrey C. Rapp, University of Toledo College of Law
Larry E. Ribstein, University of Illinois College of Law

Tort claims raise both theoretical and practical questions when an individual tortfeasor is associated with an unincorporated firm. Should the firm’s organizational status shield the individual from liability, comparable to a shield against contract claims? When does an individual’s conduct constitute tortious conduct, especially when the individual works as part of a group? And when and to what extent is the firm itself—or its owners—subject to liability? The circumstances under which any firm—whether or not incorporated—should be subject to vicarious liability are highly contested, most recently in the Exxon Valdez litigation before the United States Supreme Court. More generally, should the law differentiate between unincorporated and incorporated firms and their owners in resolving such questions? These issues are anticipated to lend themselves to multiple methodologies and approaches and will generate lively discussion.
Business Meeting at Program Conclusion.

8:30 am-10:15 am
Section on International Human Rights
Jasperwood, Third Floor, Hilton New Orleans Riverside

New Voices in Human Rights

Speakers Selected from a Call for Papers:
Thomas M. Antkowiak, Seattle University School of Law
Samuel P. Baumgartner, University of Akron C. Blake McDowell Law Center
Robert C. Blitt, University of Tennessee College of Law
Jernej Letnar Cernic, Max Weber Fellow, European University Institute, San Domenico, Italy
Caroline Davidson, Willamette University College of Law
Connie M. De La Vega, University of San Francisco School of Law
Gregory S. Gordon, University of North Dakota School of Law
Sital Kalantry, Cornell Law School
Lillian Aponte Miranda, Florida International University College of Law
David Pimentel, Florida Coastal School of Law

The Section invited abstract proposals from all faculty members whose research focuses on human rights.

Authors of accepted papers are presenting.

Business Meeting at Program Conclusion.

8:30 am-10:15 am
Section on Women in Legal Education, Co-Sponsored by Section on Defamation and Privacy
Rosedown, Third Floor, Hilton New Orleans Riverside

The First Amendment Meets Cyber-Stalking Meets Character and Fitness

Moderator:
Elizabeth A. Nowicki, Tulane University Boston University School of Law

Speakers:
Jack M. Balkin, Yale Law School
Danielle Keats Citron, University of Maryland School of Law, Selected from a Call for Papers
Deborah L. Rhode, Stanford Law School
W. Bradley Wendel, Cornell Law School

Cyber-harassment has made its way to the legal academy, in part by way of the Auto-Admit debacle, implicating several law students, and in part by way of other similar situations. The resulting dialogue has raised legal issues related to ethics, gender equality, freedom of speech, and Internet regulation and liability. Some legal scholars say that on-line attacks by law students, prospective law students, or lawyers, while noxious, constitute protected speech that should not be penalized. Others say that on-line attacks can raise sexual harassment or civil rights concerns given that the conduct often targets women. Still others say that outrageous on-line conduct by law students, prospective law students, or lawyers raises character and fitness concerns, particularly when the conduct is overtly racist or gendered.
Discussion about these issues is complicated by Internet anonymity and evolving Internet-related case law, and more questions are raised than are answered. Is it a problem when gender- or race-specific comments are made by law students, prospective law students, jurists, or lawyers on the Internet? How, if at all, should law schools, bar examiners, or state disciplinary counsel respond to this sort of conduct? More generally and not specific to law students or lawyers, should cyber-harassment be addressed by legislation, litigation, regulation, or prosecution? How?

10:30 am-12:15 pm
Section on Commercial and Related Consumer Law
Magnolia, Third Floor, Hilton New Orleans Riverside

The Principles of the Law of Software Contracts:
A Phoenix Rising from the Ashes of Article 2B and UCITA?

Moderator:
Keith A. Rowley, University of Nevada, Las Vegas William S. Boyd School of Law

Speakers:
Amelia H. Boss, Earle Mack School of Law at Drexel University
Robert A. Hillman, Cornell Law School
Florencia Marotta-Wurgler, New York University School of Law, Selected from a Call for Papers
Juliet M. Moringiello, Widener University School of Law, Selected from a Call for Papers
Maureen Anne O’Rourke, Boston University School of Law
William L. Reynolds, University of Maryland School of Law, Selected from a Call for Papers

The Principles of the Law of Software Contracts seek to weave the currently divergent threads of law governing software contracts (including the threshold questions of whether they are contracts or licenses and whether software is a good, a tangible non-good, or an intangible) into a coherent whole that will guide parties in drafting, performing, and enforcing software contracts and courts and other arbiters in resolving disputes involving software contracts. Professor Hillman and Dean O’Rourke, the Principles’ reporter and associate reporter, will offer their unique insights on the Principles’ evolution, some key substantive provisions, and their legal and practical implications. Other speakers, chosen from among those who responded to a call for papers, will offer their perspectives on the Principles, the economic, historical, policy, and political forces that motivated and shaped them, and their likely impact on the law and practice of software transactions.

Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Constitutional Law
Napoleon Ballroom, Third Floor, Hilton New Orleans Riverside

The Interpretation – Construction Distinction in Constitutional Law

Moderator:
Amy C. Barrett, Notre Dame Law School

Speakers:
Ian Bartrum, Drake University Law School, Selected from a Call for Papers
Mitchell N. Berman, The University of Texas School of Law
Laura A. Cisneros, Texas Southern University Thurgood Marshall School of Law
Roderick Hills, New York University School of Law
Lawrence B. Solum, University of Illinois College of Law
Keith E. Whittington, Professor of Politics, Princeton University, Princeton, New Jersey

Recent work in constitutional theory has suggested a distinction between “constitutional interpretation” and “constitutional construction.” The core idea is that interpretation is concerned with the linguistic meaning of the constitutional text, whereas construction implements and supplements that meaning. This idea is related to other recent conversations in constitutional theory, including discussion of “the new doctrinalism,” constitutional implementation, and the distinction between constitutional rights and remedies.
Constitutional theorists have discussed the interpretation-construction distinction in diverse ways. Some scholars have proposed that originalist constitutional interpretation can be reconciled with a living-constitutionalist approach to constitutional construction. Others have suggested that judicial review should be limited to the activity of constitutional interpretation, while the political branches should bear primary responsibility for construction. Some originalists criticize the distinction on the ground that it opens the door to judicial construction that is unconstrained by original meaning. In an earlier era, legal realists critiqued the distinction on the ground that interpretation of linguistic meaning and construction of legal doctrine cannot be separated in practice.

This program will evaluate, explore, and challenge – from a variety of perspectives and angles – the interpretation-construction distinction, its justifications, and its implications.

Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Disability Law
Cambridge, Second Floor, Hilton New Orleans Riverside

Disability Discrimination After the ADA Amendments Act of 2008
(Papers will be published in the Utah Law Review)

Moderator:
Ani B. Satz, Emory University School of Law

Speakers Selected from a Call for Papers:
Stephen F. Befort, University of Minnesota Law School
Ruth Colker, The Ohio State University Michael E. Moritz College of Law
Robin Paul Malloy, Syracuse University College of Law
Elizabeth Pendo, Saint Louis University School of Laws

This panel will address issues of disability discrimination after the ADA Amendments Act of 2008 (AAA). The AAA expands the definition of disability but does not cover all individuals with functional impairments, address many barriers to employment, or speak to the need for material resources such as health care and transportation. Speakers will discuss difficulties with the implementation of the AAA as well as disability discrimination that is not addressed by the Act.
Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Litigation, Co-Sponsored by Section on Civil Procedure
Oak Alley, Third Floor, Hilton New Orleans Riverside

The Future of Summary Judgment
(Program to be published in Akron Law Review)

Moderator:
Ronald G. Aronovsky, Southwestern Law School

Speakers:
Edward J. Brunet, Lewis and Clark Law School
Stephen B. Burbank, University of Pennsylvania Law School
Steven S. Gensler, University of Oklahoma College of Law, Selected from a Call for Papers
Linda S. Mullenix, The University of Texas School of Law
Adam N. Steinman, University of Cincinnati College of Law
Suja A. Thomas, University of Illinois College of Law
 
Over the past forty years, summary judgment has played an increasingly prominent role in federal and state civil litigation. Some hail the expanded availability of summary judgment as promoting efficiency, preserving judicial resources and relieving pressure on overcrowded dockets. Others criticize the current state of summary judgment practice as promoting needless pre-trial transaction costs, undermining the role of jury trials, and disadvantaging employment discrimination, civil rights and other plaintiffs. Recent proposed amendments to Rule 56 have further fueled the debate about the proper role for summary judgment. In addition, some think the U.S. Supreme Court’s May 2009 decision in Ashcroft v. Iqbal will impact the future role of summary judgment and accelerate pre-trial dispositive motion practice by increasing the number of cases dismissed at the pre-answer motion stage of litigation. Speakers will address a range of issues relating to the future of summary judgment, such as the evolution of federal summary judgment law and practice since the 1970s, whether the trans-substantive model for summary judgment remains effective or normatively preferable, the proposed changes to Rule 56, and whether the Iqbal decision will affect the role of summary judgment.

Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Securities Regulations
Fountain Room, Third Floor, Hilton New Orleans Riverside

Responding to the Financial Crisis: Change is in the Air

Moderator:
Therese H. Maynard, Loyola Law School

Speakers Selected from a Call for Papers:
William A. Birdthistle, Illinois Institute of Technology Chicago-Kent College of Law
Erik F. Gerding, University of New Mexico School of Law
Michael D. Guttentag, Loyola Law School
Charles K. Whitehead, Cornell University Law School
 
In keeping with the theme of this year’s Annual Meeting, the Executive Committee invited papers that explore the transformative power of the law in addressing the ongoing economic crisis. The panel seeks to address the fundamental question of how to respond to the current crisis by asking: Where have we been? Where are we now? And, finally, where are we going? Without a doubt, financial products and financial markets have played a pivotal role in contributing to the recent downturn in economic activity and thus raise a host of important and pressing questions regarding securities regulation. These questions include:

• To what extent did gaps in the financial regulatory system generally, and securities regulation in particular, contribute to the recent financial turmoil?
• How can organizational reform help improve the efficacy and independence of securities regulation?
• What should be the primary focus of future securities regulation efforts: Consumer protection? Investor protection? Financial market efficiency? Systemic risk containment? All of the above?
• In what ways should the regulation of derivatives markets, futures markets, money market funds, private equity funds, or hedge funds be modified in light of recent developments?
• Given recent events, should the definition of a sophisticated investor be revised? If so, to what degree?
• What are the similarities and differences between the current financial crisis and previous financial crises? What is the relevance of these parallels to securities regulation?
• How does the current crisis impact efforts to coordinate securities regulation on a global basis?
• Should financial accounting standards and the process by which these standards are established be modified?
• How can a regulatory agency charged with reducing systemic risk best achieve this objective? Is there a role for securities regulation in achieving the objective of reducing systemic risk?

Business Meeting at Program Conclusion.

10:30 am-12:15 pm
Section on Sexual Orientation and Gender Identity Issues
Melrose, Third Floor, Hilton New Orleans Riverside

On the Cutting Edge: Charting the Future of Sexual Orientation and Gender Identity Scholarship
(Program to be published in Law & Sexuality)

Moderator:
Suzanne B. Goldberg, Columbia University School of Law

Speakers:
Carlos A. Ball, Rutgers School of Law-Newark
William Nichol Eskridge, Yale Law School
Nan D. Hunter, Georgetown University Law Center
Darren Lenard Hutchinson, American University Washington College of Law
Douglas NeJaime, Loyola Law School Los Angeles, Selected from a Call for Papers
Ruthann Robson, City University of New York School of Law
Dean Spade, Seattle University School of Law

Thirty year ago, Rhonda Rivera published “Our Straight-laced Judges: The Legal Position of Homosexual Persons in the United States,” the first comprehensive law review article of its kind. Since then, the sexual orientation and gender identity legal literature has exploded, with hundreds of articles considering all imaginable aspects of the law’s relationship to gender identity and sexual orientation. At the same time, political demands of lesbian, gay men, bisexuals, and transgender have both multiplied and moved to the center of cultural debates, and the body of case of law addressing these issues has likewise grown exponentially. What, then, are the next steps for legal scholarship?

This program will be begin with a brief look back over the past decades’ major ideas and contributions and then will move forward quickly to highlight new issues, new theories, and the possibilities for linking theory and practice. Each panelist will concentrate briefly on one major issue or idea with an eye toward envisioning the field for the decade(s) to come.

Business Meeting at Program Conclusion.

1:30 pm-3:15 pm
Section on Law and Computers
Melrose, Third Floor, Hilton New Orleans Riverside

Law and Wikis

Moderator:
Eric Goldman, Santa Clara University School of Law

Speakers Selected from a Call for Papers:
Timothy K. Armstrong, University of Cincinnati College of Law
Jon M. Garon, Hamline University School of Law
Jacqueline D. Lipton, Case Western Reserve University School of Law
Salil K. Mehra, Temple University James E. Beasley School of Law

Wiki technologies offer novel and interesting ways for people to work online collaboratively. The best-known wiki application is Wikipedia, a highly successful website that has generated millions of encyclopedic articles from volunteer contributors. This panel, composed of refereed abstracts submitted in response to the Section’s Call for Papers, will explore the interaction between law and wiki technologies, including Wikipedia.

Business Meeting at Program Conclusion.

1:30 pm-3:15 pm
Section on Trusts and Estates
Magnolia, Third Floor, Hilton New Orleans Riverside

Changing Times, Changing Law: Evaluating Legal Trends in Trusts and Estates Law

Moderator:
Melanie B. Leslie, Benjamin N. Cardozo School of Law

Commentators:
Jeffrey A. Cooper, Quinnipiac University School of Law
Bridget J. Crawford, Pace University School of Law
Lee-ford Tritt, University of Florida Fredric G. Levin College of Law

Speakers Selected from a Call for Papers:
Iris J. Goodwin, University of Tennessee College of Law
Phyllis C. Smith, Florida A & M University College of Law
Robert Whitman, University of Connecticut School of Law

Trusts and Estates law was for centuries a fairly stable, if dusty, body of doctrine. Over the past few decades, however, striking changes in the economic, legal and social landscape have prompted an explosion of new doctrinal developments. Major trends in banking and tax law – including the gradual elimination of Glass-Steagall, which resulted in mergers of investment and commercial banking institutions and increased competition for trust business, and the Economic Growth and Tax Relief Reconciliation Act of 2001, which is set to expire next year — spurred the development of dynasty and domestic asset protection trusts and significant changes in fiduciary duty law governing trustees’ management and investment duties. Banks’ demand for more predictability in law helped jump start a trend away from common law and toward codification, which produced the Uniform Trust Code and increasingly detailed revisions to the Uniform Probate Code. Cultural changes and scientific and medical advances caused states to grapple with their conception of family relationships, and with treatment of end-of-life issues. Presenters and selected commentators will lead the section in a discussion aimed at evaluating these and other trends and developments in Trusts and Estates law. Panelists were selected in response to the section’s call for papers.

Business Meeting at Program Conclusion.

Sunday, January 10, 2010

9:00 am-12:00 pm
Section on Business Associations
Belle Chasse, Third Floor, Hilton New Orleans Riverside

The Financial Collapse and Recovery Effort: What Does It Mean For Corporate Governance?

Moderator:
Lisa M. Fairfax, The George Washington University Law School

Speakers:
Bruce E. Aronson, Creighton University School of Law, Selected from a Call for Papers
Alan L. Beller, Esquire, Cleary, Gottlieb Steen & Hamilton LLP, New York, New York
Miriam A. Cherry, University of the Pacific McGeorge School of Law, Selected from a Call for Papers
Jeffrey N. Gordon, Columbia University School of Law
Renee M. Jones, Boston College Law School
Hillary A. Sale, Washington University School of Law
Teresa Tritch, Member, Editorial Board, New York Times Magazine, New York, New York
J.W. Verret, George Mason University School of Law, Selected from a Call for Papers
Jarrod Wong, University of the Pacific McGeorge School of Law, Selected from a Call for Papers

The severe global financial crisis has sparked an unprecedented response: billions of dollars in government bailout funds; the federal government taking equity stakes in private entities; major restructuring of auto makers and other financial firms; federal and state initiatives focused on proxy access and say on pay. Both the crisis and recovery effort raise issues related to corporate governance including those involving the role of the board, executive compensation and decision-making, the theory of the firm, and shareholder and stakeholder rights. The first half of the session brings together prominent legal scholars and experts to discuss these and other issues, with an eye towards understanding what the collapse and recovery effort means for corporate governance.

Business Meeting at Program Conclusion.

9:00 am-10:45 am
Section on National Security Law, Co-Sponsored by Sections on International Human Rights and International Law
Rosedown, Third Floor, Hilton New Orleans Riverside

Cross-Currents in International Law, Human Rights Law and National Security Law

Moderator:
Diane Marie Amann, University of California, Davis School of Law

Speakers Selected from a Call for Papers:
Cindy Galway Buys, Southern Illinois University School of Law
Eugene Kontorovich, Northwestern University School of Law
Michael P. Malloy, University of the Pacific McGeorge School of Law
Milena Sterio, Cleveland State University Cleveland-Marshall College of Law

9:00 am-10:45 am
Section on Property Law
Prince of Wales, Second Floor, Hilton New Orleans Riverside

Junior Property Scholars Works-in-Progress
(Program to be published in Indiana Law Review)

Moderator:
Carol N. Brown, University of North Carolina School of Law

Speakers Selected from a Call for Papers:
David Fagundes, Southwestern Law School
Alina Ng, Mississippi College Mississippi College School of Law

Two junior scholars are presenting their recent scholarship and will receive comments from more senior scholars. The scholars who will present were selected from a call for papers.

Professor Fagundes will present “Explaining the Persistent Myth of Property Absolutism.” He explores why non-lawyers persist in believing the Blackstonian account of despotic property despite legal rules to the contrary. Fagundes concludes that a combination of law and economics, behavioralism, and sociobiology might provide the answer.

Professor Ng will present her paper “Rights, Privileges, and Access to Information,” and notes that modern technology can result in more stringent controls on access to information, although vastly reducing the costs of sharing information. She asserts that copyright protection is based on the Constitutional purpose of promoting progress, and proposes that the question of access to information is a question of sustainable resource use that should not evoke the exclusionary rights of a strict property rule.