2011 ACS National Convention CLE Materials

The 2011 ACS National Convention hosted six programs that offered CLE credits.  The CLE materials for each of these programs are listed below, along with a brief description of the program itself.  For further questions on obtaining CLE's from your attendance at the ACS National Convention, please e-mail psheth@acslaw.org.

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Text, History and Principle: What Our Constitution Means and How to Interpret it

The Framers of our Constitution designed it to endure. Their goal was to address the problems confronting the nation at that time, as well as to establish foundational principles to sustain and guide Americans into an indefinite and uncertain future. As a result, the document’s text defines our most fundamental freedoms in an open-ended way. How should judges give concrete meaning to the open-ended language and guarantees of our Constitution? How can they maintain fidelity to both the document’s specific text and the broad intent of its authors? University of Chicago Professor and ACS Board Chair Geoffrey Stone will address these questions, followed by a panel of respondents. The panel will also discuss the how abstract constitutional interpretation approaches apply to real-world challenges.

• Goodwin Liu, Pamela S. Karlan & Christopher H. Schroeder, Keeping Faith with the Constitution 23-45 (2010).

• Akhil Reed Amar, Rethinking Originalism, Slate, Sept. 21, 2005.

• J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253 (2009).

• Diane P. Wood, James Madison Lecture, Our 18th Century Constitution in the 21st Century World, 80 N.Y.U. L. Rev. 1079 (2005).

• Geoffrey R. Stone & William P. Marshall, The Framers’ Constitution: Toward a Theory of Principled Constitutionalism (2011) (unpublished manuscript, on file with the American Constitution Society).

 

Dodd-Frank and the Future of Securities Litigation

Misconduct in the financial industry was a major contributor to the recent economic crisis. Congress passed the Dodd–Frank Wall Street Reform and Consumer Protection Act in 2010 in response to the failures in financial markets.  It represents the most sweeping change to financial regulation in the United States since the Great Depression.  While the legislation was passed to increase accountability and to restore confidence in the financial market, legal observers question whether the law will have an impact against a backdrop of two key Supreme Court decisions:  Stoneridge Investment Partners LLC v. Scientific-Atlanta (restricting investors’ ability to seek compensation against third parties for misconduct) and Morrison, et al., v. National Australia Bank(holding that securities fraud does not apply to investments outside the country, even if they have a domestic impact or effect).Does current law adequately protect investors? Did Dodd-Frank leave gaps in providing an adequate enforcement option for investors? Should Congress consider a legislative response to the Stoneridge and Morrison? How does Dodd-Frank deal with issues regarding secondary liability? Is a private right of action necessary? Panelists will discuss these and other questions about the future of securities litigation.

• Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008).

• Morrison v. Nat’l Aust. Bank Ltd., 130 S. Ct. 2869 (2010).

• Brief of Respondents, Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869 (2010) (No. 08-1191).

• Donald C. Langevoort, Reading Stoneridge Carefully: A Duty-Based Approach to Reliance and Third-Party Liability Under Rule 10B-5, 158 U. Pa. L. Rev. 2125 (2010).

• Jill E. Fisch, Cause for Concern: Causation and Federal Securities Fraud, 94 Iowa L. Rev. 811 (2009).

 

Globalization, Corporate Accountability and the Courts

As a result of globalization, U.S. corporations have greatly expanded their economic activities overseas and statutes such as the Alien Tort Claims Act seem to offer a potential means to remedy wrongdoing by corporations.  Some legal observers have, however, noted that there is a tension between increasing global economic integration and recent U.S. Supreme Court and lower federal court rulings.  In their view, these rulings restrict court access to non-U.S. investors, businesses, and consumers even when U.S. companies are in violation of human rights or tort laws that cause damage or injury overeseas. The doctrine of forum non conveniens, for example, has expanded to close the federal courts just as globalization erases national boundaries in economic activity. These tensions result in many questions: Who can enforce the civil law against multinational corporations, or U.S. companies making decisions here with extraterritorial consequences? Is there an enforcement gap that places the international public, environment, and financial health and safety in danger? This panel will also explore alternative avenues to address civil and criminal violations to increase corporate accountability.

• Paul L. Hoffman & Daniel A. Zaheer, The Rules of the Road: Federal Common Law and Aiding and Abetting Under the Alien Tort Claims Act, 26 Loy. L.A. Int’l & Comp. L. Rev. 47 (2003).

• Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010).

• Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

• Faith E. Gay & J. Noah Hagey, Corporate Liability Under the Alien Tort Claims Act, Law.com, Oct. 25, 2007.

• Aaron Xavier Fellmeth, Wiwa v. Royal Dutch Petroleum Co.: A New Standard for the Enforcement of International Law in U.S. Courts?, 5 Yale Hum. Rts. & Dev. L.J. 241 (2002).

 

National Power to Address the Nation’s Problems: The Constitutionality of the Affordable Care Act

Litigation around the country challenging the Affordable Care Act (ACA) has raised fundamental questions about the meaning of Congress’s commerce and taxing powers, questions that reflect underlying debates about how the Constitution’s enduring principles should be interpreted to meet the needs of our complex, modern society.  Arguments put forward by the law’s challengers reflect a vision of the Constitution that would cabin federal power and, their opponents contend, roll back decades, if not centuries, of settled law.  Is the mechanism adopted for ensuring coverage by the ACA unprecedented or unexceptional?  Is a ruling in favor of the ACA consistent with traditional notions of congressional power?  This plenary will address these and other questions through the lens of the health care lawsuits.

• Simon Lazarus, The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government, ACS Issue Brief, Feb. 2011.

• The Constitutionality of the Affordable Care Act: Hearing Before the H. Comm. on the Judiciary, 112th Cong. (2011) (statement of Walter Dellinger).

• The Constitutionality of the Patient Protection and Affordable Care Act’s Individual Insurance Mandate: Hearing Before the H. Comm. on the Judiciary, 112th Cong. (2011) (statement of Professor Randy E. Barnett).

• Statement by Libby S. Adler et al., Over 100 Scholars Agree on Affordable Care Act’s Constitutionality.

• Brief for Constitutional Law Professors as Amici Curiae Supporting Defendant-Appellant, Virginia v. Sibelius, No. 11-1057 & 11-1058 (4th Cir. Mar. 11, 2011).

• Reply Brief for Respondent-Appellant, Virginia v. Sibelius, No. 11-1057 & 11-1058 (4th Cir. Apr. 8, 2011).

 

Electronic Privacy Revisited

The Electronic Communication Privacy Act (ECPA) was enacted in 1986 in large part to address the growth of new Internet-based commercial and communication services.   However, much has changed in the past 25 years with both technology and business practices:  email is now ubiquitous, users can now be tracked in physical space, data can be stored in the “cloud,” and wireless communications have become more widespread.   How should ECPA be updated to take into account not only recent developments, but also future innovations?  What role does the emergence of a global network and international privacy norms play in the US effort to safeguard privacy in the modern age?

• Electronic Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99-508, 100 Stat. 1848, 18 U.S.C. § 2510 (2009).

• Electronic Communications Privacy Act Amendments Act of 2011, S. 1011, 112th Cong. (2011).

• Do Not Track Kids Act of 2011, H.R. 1895, 112th Cong. (2011).

• Do-Not-Track Online Act of 2011, S. 913, 112th Cong. (2011).

• Jay Stanley, The Crisis in Fourth Amendment Jurisprudence, ACS Issue Brief, May 2010.

 

Free Speech and the Roberts Court: The First Amendment in the First Five Years

The Roberts Court has been extraordinarily active in its First Amendment jurisprudence, issuing such decisions as Citizens United v. FEC, United States v. Stevens, Christian Legal Society v. Martinez, Holder v. Humanitarian Law Project, Morse v. Frederick, Garcetti v. Ceballos, and Pleasant Grove v. Summum.  Traditionally, the First Amendment has protected dissidents and unpopular speakers from majoritarian action, but some have argued that the Roberts Court has instead used the First Amendment to protect the entrenched and already powerful. This term’s challenge to Arizona’s “Clean Elections Act” will provide the Court another opportunity to demonstrate its views on this subject, while the recent Snyder v. Phelps decision, protecting the right of the Westboro Baptist Church to picket military funerals, demonstrates its willingness to protect some unpopular speech. This plenary will examine whether the Roberts Court has offered a coherent approach to freedom of expression issues and, if so, whether its approach is consistent with core free speech values.

• Monica Youn, Citizens United: The Aftermath, ACS Issue Brief, June 2010.

• Erwin Chemerinsky, FCBA Distinguished Speakers Series, The Roberts Court and Freedom of Speech, 63 Fed. Comm. L.J. 579 (2011).

• David Cole, The Roberts Court vs. Free Speech, The NY Rev. of Books, Aug. 19, 2010, at 80.

• Robert Barnes, Alito Stands Alone on Supreme Court’s First Amendment Cases, Wash. Post, Mar. 3, 2011.

• Citizens United v. FEC, 558 U.S. 50 (2010).

• Brief for Senator Mitch McConnell as Amicus Curiae Supporting Appellant, Citizens United v. FEC, 558 U.S. 50 (2010) (No. 08-205).

• Snyder v. Phelps, 526 U.S. ___ (2011)

•  Morse v. Frederick, 551 U.S. 393 (2007)