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Hot Topics

Time has been reserved during the Annual Meeting schedule for programs devoted to late-breaking legal issues or topics.

The purpose of this special “hot topics” slot is to provide a forum for a panel presentation on a timely and important issue of general interest that arises after the deadline for section and other programs.

 Proposals were evaluated by the immediate Past President of the AALS in consultation with the Executive Committee.

 Thursday, January 8, 2009

 8:30-10:15 am

Pulpit Freedom?:  On Taxes, Elections, And Religious Freedom

San Diego Salon C, North Tower/Lobby Level

Moderator: Lloyd H. Mayer, Notre Dame Law School
Speakers: Marci A. Hamilton, Yeshiva University Benjamin N. Cardozo School of Law
Vaughn E. James, Texas Tech University School of Law
Douglas Laycock, The University of Michigan Law School
Bernadette A. Meyler, Cornell Law School
Donald B. Tobin, The Ohio State University Michael E. Moritz College of Law
Robert W. Tuttle, The George Washington University Law School

The relationship between church and state has always been fraught with tension, as some advocate a strict separationist approach and others support interaction on various levels. In May 2008, a conservative religious freedom group, the Alliance Defense Fund, launched an organized campaign to challenge one particular flashpoint for disagreement: the extent to which pastors, rabbis, imams, and other religious leaders speaking to their congregations should be able to express views about politics and particularly about candidates for public office. Thanks to a federal tax provision, churches and other houses of worship have in theory had to either restrain their leaders from expressing such views from the pulpit or face the loss of the significant tax benefits they enjoy. The recruitment by the ADF of pastors at more than 30 churches to challenge this restriction on First Amendment grounds, and the demands from supporters of a strong separation between church and state for the IRS to enforce the restriction against these churches have brought this flashpoint to the fore. The panel will discuss the legal and public policy rationales that support and oppose the restriction and also this looming confrontation’s broader ramifications for religious freedom, elections, and federal tax law.

Friday, January 9, 2009

8:30-10:15 am

The Financial Crisis

Marriott Salon 2, Marriott Pavilion/Lobby Level

Moderator: Theodore P. Seto, Loyola Law School
Speakers: William K. Black, University of Missouri – Kansas City School of Law
Lauren E. Willis, Loyola Law School
Arthur E. Wilmarth, Jr., George Washington University Law School

A discussion of the causes, short-term solutions, and longer-term implications of the current financial crisis. Professor Willis will discuss the crisis at the retail level – the evolution from credit rationing to risk-based pricing of mortgages, the effects of risk-based pricing on consumers’ mortgage decisions, the financial and psychological antecedents of borrower demand for mortgages posing a high risk of foreclosure, and the marketing and sales practices that respond to and create that demand. Professor Black will cover the securitization of home mortgages and the development of derivatives that contributed to the financial crisis. He will describe the legal and regulatory actions that allowed for these developments and explain why the securitization of heterogeneous subprime mortgages and the existence of an over-the-counter credit default swap market are fundamentally inconsistent with a stable financial system. Professor Wilmarth will speak on the role of large financial conglomerates and the failure of the various regulators (especially the OCC, the OTS, the Fed and the SEC) to control the risk-taking of those conglomerates.

10:30 a.m.-12:15 pm

What’s Race Got To Do With Post Racialism?

Marina Salon F, South Tower/Level 3

Moderator: Charles Olgletree, Harvard Law School
Speakers: Deidre Bowen, Seattle University School of Law
Devon Wayne Carbado, University of California at Los Angeles School of Law
andré douglas pond cummings, West Virginia University College of Law
Laura E. Gómez, University of New Mexico School of Law
Cheryl I. Harris, University of California at Los Angeles School of Law
Janai S. Nelson, St. John’s University School of Law

Only a year ago, the notion that Barack Obama would become the 44th President of the United States seemed improbable. This raises the question of whether we are further along with respect to racial progress than we are capable of imagining—whether we are witnessing the end of race—or, at the very least, the end of race as we know it. This panel proposes to examine post-racialism as both an idea and a political practice through the convergence of four issues: (1) the election of the first Black President of the United States, (2) the passage of Nebraska’s anti-affirmative action initiative and Colorado’s rejection of a similar measure, (3) the financial meltdown and the attendant rhetoric about “under-qualified” minority borrowers as at least one source of the crisis and (4) the recent controversy over UC admissions in which a member of UCLA’s undergraduate admissions committee resigned to protest alleged violations of Proposition 209’s ban on racial preferences in admitting Black students. Each of these racial dynamics has implications for how we understand the current moment in which claims about post-racialism have gained meaningful traction. We investigate whether post racialism constitutes a formally race-neutral paradigm within which race remains salient.

3:30-5:15 pm

Proposition 8, Legal Challenges and The Future Of Marriage Between Same-Sex Couples

San Diego Salon C, North Tower/Lobby Level

Moderator: Marisa Cianciarulo, Chapman University School of Law
Speakers: Erwin Chemerinsky, University of California, Irvine School of Law
M. Katherine B. Darmer, Chapman University School of Law
Clifford J. Rosky, University of Utah School of Law

Proposition 8 in California purported to amend the state constitution such that “only marriage between a man and a woman is valid and recognized in California.” The amendment was designed to invalidate the California Supreme Court’s May 15, 2008 decision to the contrary and calls into question the status of 18,00 marriages that same sex couples entered into in California between May 15 and November 4. Proposition 8 continues to receive nationwide attention.

This panel will address Proposition 8; constitutional challenges to Proposition 8, including the question whether the voter initiative validly “amended” the state constitution or instead illegally revised it; the future of the federal Defense of Marriage Act (“DOMA”); and legal and constitutional trends in other states with regard to this and related issues.