CLE Credit

Over the last decade the Supreme Court has shown an increased interest in weighing in on issues affecting the integrity of the political process.  From the Court’s holding in Citizens United v. FEC to its recent decision to grant certiorari in Shelby County v. Holder, challenging the constitutionality of Section 5 of the Voting Rights Act, the Court’s rulings have a significant impact on political equality in this country.  How will these decisions affect the health of our democracy? What are the implications of Shelby on the future of voting rights? Has the Court dismissed the idea that equalizing opportunity for political influence is a legitimate value when it comes to voting rights and campaign finance regulation? What is the future for voter political participation? What challenges lie ahead? Panelists will explore these and other questions in a thought provoking discussion about the vitality of our democracy and the civic participation on which it relies.

Corporations have prevailed with First Amendment arguments in several contexts, including credit rating agency opinions, and most recently, marketing and advertising regulation.  In the 2010-2011 Term, in Sorrell v. IMS Health, Inc., the Court held that pharmacies have a First Amendment right to sell prescription records to marketing and data mining companies. In Citizens United, the Court held that it was unconstitutional to ban free speech through the limitation of independent communications by corporations, associations, and unions.  Is the Court’s First Amendment jurisprudence furthering corporate interests at the expense of public interests?  Are these decisions fueling litigation strategies in the lower courts that promise increased expansion of corporate rights?  Or are critics just being dismissive of free speech rights because they do not like the speaker?  Our panel will describe, from a variety of perspectives, the implications of the Court’s pronounced shift on corporate First Amendment issues.

Reclaiming Gideon, 2:30 pm – 3:45 pm

Fifty years ago the United States Supreme Court decided Gideon v. Wainwright, one of the most renowned and celebrated cases in our constitutional history.  Today we recognize Gideon not only for the right to court appointed counsel that it protects but also for the commitment to equal justice under law that it symbolizes.  Some, however, have argued that Gideon has proved to be only an empty promise and that the right to meaningful representation is more illusory than real.  Focusing on the rights of indigents, this panel will examine Gideon and the state of the American justice system (civil and criminal) at the federal, state, and local levels.

The Court considered several class action cases this Term.  Its docket included Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, Comcast v. Behrend, Genesis HealthCare Corp. v. Symczyk, and American Express Co. v. Italian Colors Restaurant.  Have the Court’s decisions in these cases been consistent with the precedents established in Wal-Mart v. Dukes and AT&T v. Concepcion?  Should employees, consumers, investors, and others be concerned that their ability to pursue class action litigation has been limited?  Or, on the other hand, has the Court demonstrated through its decisions that such concerns are unwarranted?  As the 2012-2013 Term comes to a close, this panel will consider the current state of class action litigation and mandatory arbitration and explore the impact of Wal-Mart and AT&T in the lower courts.

Principles of federalism partially define our constitutional structure and inform numerous ongoing national debates, including those on immigration, marriage equality, marijuana regulation, the proper scope of executive power, and health care reform.  Members of a new generation of legal scholars will discuss what the law of federalism may look like five and ten years from now, highlighting developments in the courts, in state and federal legislatures, and at the grassroots level.

One need only look at the Supreme Court’s consideration of marriage equality and affirmative action this term to be reminded of the important role courts can play in social movements, whether it is to advance causes or slow them down. Throughout American constitutional history, the courts have at times been at the vanguard of social change, with such cases as Brown, Lawrence and Roe being among the more notable examples.  At other times, the Supreme Court has stood as an obstacle to social progress. This panel will focus on the questions of what should be the role of the courts in debates over major social issues and how rules of constitutional interpretation do and should play into this discussion.

Texas most recently deviated from the traditional American rule that both parties pay for their own litigation costs in 2011 when it enacted legislation that allows prevailing parties to recover litigation expenses in cases deemed frivolous.  Historically, in the United States, fee shifting has only been allowed in situations where litigation is encouraged as a matter of public policy, such as civil rights and consumer protection cases.  While Alaska is the only other state that has a loser pays system, the concept has been championed by tort reformers, and publicly supported by several elected officials. The Supreme Court even weighed in, recently reaffirming the authority of district courts to shift costs under the Federal Rules of Civil Procedure in Marx v. General Revenue Corp.  Do we have evidence that a loser pays system actually reduces litigation costs by encouraging parties to settle out of court?  Does it do justice a disservice by discouraging plaintiffs from filing suit?  Has there been innovation in litigation funding that provides individuals with incentives to bring their cases to court?  Given the longstanding tradition that litigants pay their own costs, what is the justification for fee shifting in areas of the law where the public interest seeks to encourage litigation, like civil rights?