AALS Annual Meeting 2006



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

January 3-7, 2006

Washington, DC



Saturday, January 7, 2006

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

8:00 a.m. - 12:00 p.m.
AALS Registration

8:00 a.m. - 12:00 p.m.
AALS Message Center

8:00 a.m. - 12:00 p.m.
AALS Office and Information Center


AALS EVENTS

7:00 - 9:00 a.m.
AALS Workshop and Continental Breakfast for 2005 and 2006 Section Officers


9:00 - 10:45 a.m.
Section on Constitutional Law, Co-Sponsored by Section on Jurisprudence

Author Meets Critics: Securing Constitutional Democracy

Moderator: Stephen M. Griffin, Tulane University School of Law
Speakers: James E. Fleming, Fordham University School of Law -view outline-
Lawrence B. Solum, University of Illinois College of Law

In Securing Constitutional Democracy, Professor Fleming sets out and defends a substantive constitution-perfecting theory as an alternative to the well-known process-perfecting theories advanced by John Hart Ely in Democracy and Distrust and Cass Sunstein in The Partial Constitution. Process theories contend that the Constitution’s core commitment is democracy and that judicial review is justified principally when the processes of democracy do not deserve trust. The principle attraction of such process theories is that they promise to reconcile the institution of judicial review with democratic values. In the spirit of John Rawls’s Political Liberalism, a substantive constitution-perfecting view is advanced in Securing Constitutional Democracy. The book constructs a theory of the constitution that reinforces not only the procedural liberties (those related to deliberative democracy) but also the substantive liberties (those related to deliberative autonomy) embodied in our Constitution and presupposed by our constitutional democracy. The participants in this panel will offer a variety of perspectives on Securing Constitutional Democracy with a reply from Professor Fleming.


9:00 - 10:45 a.m.
Section on Criminal Justice, Co-Sponsored by Section on Minority Groups

Contemporary Issues in Race and Crime

Moderator: Cynthia Lee, The George Washington University Law School
Speakers: Paul Butler, The George Washington University Law School
Angela J. Davis, American University Washington College of Law
Andrew Eric Taslitz, Howard University School of Law
Linda Yanez, Judge, 13th Court of Appeals, Edinburg, Texas

This panel will explore contemporary issues at the intersection of race and crime. The presentations will consider this intersection from a multiplicity of angles, including an exploration of race and criminal punishment, race and prosecutorial discretion, and race and jury decision making.


9:00 - 10:45 a.m.
Section on Evidence, Co-Sponsored by Section on Torts and Compensation Systems

The Effect of the Daubert Trilogy on Products Liability Litigation

Moderator: Edward K. Cheng, Brooklyn Law School -view outline-
Speakers: Bert Black, Esquire, Lockridge Grindal Nauen P.L.L.P., Minneapolis, Minnesota
Richard Lee Cupp, Jr., Pepperdine University School of Law
David G. Owen, University of South Carolina School of Law

Until recently, expert testimony in most products liability cases was subject to only minimal scrutiny. Engineers, for example, were routinely allowed to testify regarding design defects based solely on their general qualifications; no reliability test was applied. Under the Daubert trilogy and amended Federal Rule of Evidence 702, however, many federal courts are engaging in stringent scrutiny of the underlying reliability of expert testimony in products liability litigation. This panel will explore various issues relating to the effects of the Daubert trilogy on products liability, including issues such as: (a) to what extent are federal courts (and state courts that have adopted standards analogous to amended Rule 702) excluding proferred expert testimony in products liability cases that would have been routinely admissible pre-Daubert; (b) to what extent, and how successfully, are plaintiffs trying to ensure that products liability cases are heard in state courts with more lenient evidentiary standards; (c) have federal courts gone “too far” when applying a reliability test to expert testimony in products liability actions, or are the new, stricter standards properly preventing the admission of “junk science”; (d) has the increasingly strict standards for the admission of expert testimony in products liability cases affected the substantive law of product liability? For example, are courts reluctant to require evidence of a “reasonable alternative design” for fear that expert testimony on this issue is too unlikely to pass a strict reliability test?; (e) to what extent have non-Daubert jurisdictions, such as Frye jurisdictions, also tightened their standards for the admissibility of expert testimony in products liability litigation.


9:00 - 10:45 a.m.
Section on Graduate Programs for Foreign Lawyers, Co-Sponsored by Sections on Africa, Comparative Law, for the Law School Dean, International Law, International Legal Exchange and Legal Writing, Reasoning and Research

Techniques To Internationalize The First Year Curriculum
(Program to be published in the Penn State International Law Review)

Moderator: Louis F. Del Duca, The Pennsylvania State University Dickinson School of Law
Speakers: T. Alexander Aleinikoff, Georgetown University Law Center
Diane Penneys Edelman, Villanova University School of Law
Claudio Grossman, American University Washington College of Law
Franklin A Gevurtz, University of the Pacific McGeorge School of Law -view outline- -view handout-
Katharina Pistor, Columbia University School of Law
Mathias W. Reimann, The University of Michigan Law School

Participants in this program are involved in implementing programs to internationalize the first year curriculum at their law school. Included among techniques which will be addressed are: (1) Incorporation of transnational materials into traditional contracts, torts, property, procedure, etc. courses; (2) Use of a mandatory transnational law course as a building block for further advanced courses or as a minimal exposure to develop skills needed in 21st century law practice for students who will not enrolled in advanced courses; (3) Incorporation of transnational materials into legal writing, lawyering and advocacy courses; (4) A concentrated “Law In A Global Context” course presented in the first week of the second semester of the first year. Regular classes will not meet during this first week; (5) Encouragement of teachers of “traditional” basic law courses to incorporate transnational materials in their courses.


9:00 a.m. - 12:00 p.m.
Section on Immigration Law, Co-Sponsored by Section on
Minority Groups

Law and Policy Affecting Immigrant and Refugee Children
(Program to be published in the Boston University Law Review and the Boston University Public Interest Law Journal)

Moderator: Susan Musarrat Akram, Boston University School of Law
Speakers: Jacqueline Bhabha, Executive Director, Committee on Human Rights Studies, Harvard University, Cambridge, Massachusetts
Berta E. Hernandez-Truyol, University of Florida Fredric G. Levin College of Law
Angela Lloyd, The Ohio State University Michael E. Moritz College of Law
Christopher Nugent, Community Services Team Administrator, Holland & Knight, Washington, District of Columbia
Linda Piwowarczyk, Co-Director, Boston Center for Refugee Health and Human Rights, Roxbury, Massachusetts
David B. Thronson, University of Nevada, Las Vegas William S. Boyd School of Law

This program will highlight the legal standards, policies, issues and particular problems affecting immigrant and refugee children in the United States. The program comprises two panels, the first focusing on issues relating to immigrant and refugee children subject to removal proceedings, including detention standards and conditions, removal process and procedures, special problems facing children under the relevant standards and procedures, and the effects of the removal and detention process on the psychosocial needs of children.

The second panel, cosponsored by the Section on Minority Groups, focuses on constitutional rights, access to benefits, and problems of the applicability of such rights and benefits to immigrant and refugee children under state and federal law and policy. Both panels will incorporate aspects of U.S. domestic law and relevant international legal standards into the discussions.

Panel 1: Presenters Nugent and Akram, Bhabha and Dr. Piwowarczyk. Every year, thousands of migrant children are removed or deported by states because they lack regular immigration status. Some, such as Mexican children in the U.S. and Albanian children in Italy, are simply unaccompanied to the border and left to fend for themselves. More commonly, returned unaccompanied minors are handed over to welfare agencies, relatives, and state officials. No claim is made that this is a protective measure, although occasionally decision-makers argue that it is best for children to return ‘home.’ But neither is it claimed that removal or deportation are punitive measures for children the involvement of social services to trace and connect with families belies that. How, then, do states justify this aspect of their immigration policies? Do they consider children responsible for their irregular status and therefore in some sense culpable and deserving of punishment? Or do they consider children innocent victims of others’ choices? How, if at all, do they factor the ‘best interests’ of the child into their procedures? The removal procedures for unaccompanied minors highlight the tension between the state’s protective role as parens patriae, activating welfare support, and the state’s punitive role as border cop, ejecting illegals. Ms. Bhabha will focus on these questions, examining a range of circumstances in which unaccompanied minors are removed or deported by states under domestic and international legal frameworks, policies and practices in a range of states, and the urgent need for reform of current practices.

Mr. Nugent will focus more deeply on US domestic standards and policies affecting immigrant and refugee minors in detention. His discussion will highlight the particular problems of minors in the larger detention facilities on the US border, the problems of access to counsel and barriers to effective legal representation, from legal standards to immigration agency policies and practices.

Little has been written in the medical literature about the emotional impact of detention on children. Drawing from the available data and literature, Dr. Piwowarczyk will focus on the emotional effects of detention on children, and the particular psychosocial problems of children refugees in detention. She will review what is known by medical caregivers about the impact of trauma on refugee children, and put forward medical justifications for less restrictive responses than detention of immigrant and refugee children, and the need for more holistic settings for the long-term health and well-being of such children.

Panel 2: Presenters Thronson, Hernandez-Truyol and Lloyd. Immigration status plays a decisive, but largely overlooked role in family law matters. Professor Thronson has conducted a systemic review of family court decisions that reveal that judges and advocates in the family court setting frequently attach exaggerated legal significance to immigration status with little explanation and less analysis. Here, Professors Thronson and Lloyd will both explore in more depth the roles that child custody plays in immigration law. The erratic inclusion of custody requirements in immigration and citizenship law demonstrates lack of coherent policy regarding the role that custody should play in such settings. Moreover, the varying requirements of immigration law are out of synch with prevailing values and policies underlying custody determinations in family courts. Examining the lack of connection in these frameworks raises fundamental questions of childrens’ interests and rights, particularly immigration rights, within immigrant families. When children hold immigration rights that custodians are unable to claim, how can immigration law be reconciled with the complex realities of children as members of families? How, if at all, are traditionally recognized parental rights affected by immigration law? These two presenters will discuss the complex intersection of state family law and family courts on immigrant children’s rights.

Professor Truyol will look in more detail at U.S. immigration law affecting minors as it currently exists, as well as proposed legislation that affects documented and undocumented immigrant and minority families, such as the currently-debated ‘DREAM Act.’ She will compare the applicable U.S. domestic legal standards and jurisprudence to the relevant international human rights law framework, primarily the standards under the Convention on the Rights of the Child, as well as other instruments. How do recent Supreme Court opinions acknowledging the role of international standards compare with the jurisprudence on constitutional rights/benefits (or lack thereof) with regard to immigrant children?

Business Meeting for Section on Immigration Law at Program Conclusion


9:00 - 10:45 a.m.
Section on Intellectual Property

Trademarks at the Supreme Court: Evolution or Revolution?

Moderator: Glynn S. Lunney, Jr., Tulane University School of Law
Speakers: Barton Beebe, Yeshiva University Benjamin N. Cardozo School of Law
Irene Calboli, Marquette University Law School
Graeme B. Dinwoodie, Chicago-Kent College of Law Illinois Institute of Technology
Laura Heymann, College of William and Mary Marshall-Wythe School of Law
Jessica Litman, Wayne State University Law School

Over the last six years, beginning in 1999, the Supreme Court has decided five cases interpreting the Trademark Act of 1946, or Lanham Act, as it is more commonly known. Beginning with Wal-Mart v. Samara Brothers in 1999 and extending through KP Permanent Make-Up v. Lasting Impression I at the end of 2004, the Court’s decisions touch on a variety of issues in trademark law, including the legal standards for protecting trade dress, the standard for establishing actionable dilution under the Federal Trademark Dilution Act of 1995, the protection of moral rights under the Trademark Act, and the interplay between trademark’s fair use defense and its likelihood of confusion standard for infringement. Yet, despite addressing different doctrinal issues, all five decisions are consistent in three respects. First, the Court was unanimous in each decision. Second, the Court reversed the appellate court in each decision. And third, in each case, the Court ruled against the trademark plaintiff.

Typically characterized by broad dicta about the nature and proper scope of trademark protection combined with an arguably narrow doctrinal holding, these five decisions present something of a quandary for trademark law. Interpreted broadly, the decisions could portend a sharp break in trademark law. Interpreted narrowly, they may suggest only a minor correction. Tackling these decisions from a variety of perspectives, the panel will explore whether these decisions should be taken as revolutionary or evolutionary.


9:00 - 10:45 a.m.
Section on International Legal Exchange

Opportunities Abroad for Law Teachers

Moderator: Linda J. Lacey, The University of Tulsa College of Law
Speakers: Bruce Carolan, Dublin Institute of Technology, Dublin, Ireland
Toni M. Fine, Yeshiva University Benjamin N. Cardozo School of Law
Tadas Klimas, School of Law, Vytautas Magnus University, Kaunus, Lithuania
Mark E. Wojcik, The John Marshall Law School, Chicago

This panel will explore a variety of options available to law professors who wish to spend some time in a foreign country. Topics will include the recently adopted Fulbright Senior Scholar scheme, which is designed for shorter trips abroad. Two of the speakers will outline the application procedure for this scheme. The Senior Scholar scheme provides an opportunity to travel for 2 to 5 weeks, under a cost sharing plan between the host institution and the Fulbright Foundation. Other topics will include teaching on summer study abroad programs, occasional lectures abroad, and other international opportunities for teaching and research.


9:00 a.m. - 12:00 p.m.
Section on Law, Medicine and Health Care, Co-Sponsored by
Sections on Socio-Economics, and Torts and Compensation Systems

Public Health in Law
(Program to be published in the Journal of Healthcare Law & Policy)

Moderator: Michelle Oberman, Santa Clara University School of Law
Speakers: Richard A. Goodman, Co-Director, Centers for Disease Control, Public Health Law Program, Atlanta, Georgia
Lawrence Gostin, Georgetown University Law Center
Nan D. Hunter, Brooklyn Law School
Wendy K. Mariner, Boston University School of Law
Wendy E. Parmet, Northeastern University School of Law
Edward P. Richards, III, Louisiana State University Law Center
Elizabeth A. Weeks, University of Kansas School of Law

Issues of public health abound in the law. From tort law’s concern with deterring injuries to constitutional law’s consideration of a state’s authority to regulate the sale of potentially dangerous goods, to administrative law’s analysis of how agencies regulate risk, different legal fields and doctrines engage the critical question of how we can improve population’s health and what limits must be set on activities undertaken in that effort.

The law school curriculum, however, seldom focuses on these issues, nor does it introduce students to the skills and methodologies of public health, skills and approaches that can be useful to understanding expert epidemiological evidence, analyzing a state’s authority to regulate harmful behaviors, or understanding the choices faced by regulators. In fact, understanding the public health issues the law confronts and appreciating what it means to focus on a population’s well-being can enrich a lawyer’s understanding of numerous legal issues. In addition, because public health depends heavily upon law, its protection requires that lawyers understand basic public health issues and evidence.

The program will discuss and model how public health issues and perspectives, including epidemiology, can be introduced into our classrooms and how such integration can enrich our students’ understanding of core courses in our curriculum. The program is in two parts. The first panel provides an introduction to public health and epidemiology and explores why it is useful for lawyers to be familiar with the field and what concepts they should understand. In the second panel, speakers will discuss how public health can be integrated into key law school courses (administrative law, constitutional law, torts and health law) and what that integration can bring both to the classroom and more broadly to the relevant field. The challenges and limitations of such integration will also be discussed.


9:00 - 10:45 a.m.
Section on Law and Religion

Religion, Division, and the Constitution
(Program to be published in the William & Mary Bill of Rights Journal)

Moderator: Richard W. Garnett, Notre Dame Law School
Speakers: David Campbell, Assistant Professor, Department of Political Science University of Notre Dame, Notre Dame, Indiana
Stephen M. Feldman, University of Wyoming College of Law
Frederick Mark Gedicks, Brigham Young University J. Reuben Clark Law School
Lawrence B. Solum, University of Illinois College of Law

In the popular press and culture, hardly a day goes by without bold-print, full-volume reminders from pollsters and pundits that American society is fractured, split, polarized, partisan - even at “war”; and that it is, about many things and in many ways, “divided.” And although the word “religion” comes from ligare, which means to tie or bind together, many appear to regard religion’s purported tendency to “divide” as its necessary, near-defining feature. What’s more, the division - or worse, the “divisiveness” - allegedly fomented by religious beliefs, claims, and expression is widely seen as cause for alarm, and as posing pressing challenges for political communities, democratic theory, and constitutional law.
Not surprisingly, perhaps, the argument that “political division along religious lines” is constitutionally significant - as well as politically, culturally, or aesthetically troubling - appears to be enjoying something of a comeback, in a variety of contexts: school vouchers, the Ten Commandments, etc. The contributors to this program will examine and unpack the empirical, doctrinal, and normative components of this development. What, exactly, is “religiously based social conflict?” What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of laws and state actions? How plausible, and how normatively attractive, are the political-divisiveness argument and the “principle” it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And, what does the resurfacing of this argument reveal, and what does it portend about the state and direction of First Amendment theory and doctrine?


9:00 - 10:45 a.m.
Section on Minority Groups

The Reauthorization of the Voting Rights Act
(Program to be published in the Alabama Law Review)

Moderator: Henry Lawrence Chambers, Jr., The University of Richmond School of Law
Speakers: Terry M. Ao, Staff Attorney, Asian American Justice Center, Washington, DC
Spencer A. Overton, The George Washington University Law School
Terry Smith, Fordham University School of Law
Daniel P. Tokaji, The Ohio State University Michael E. Moritz College of Law

The Voting Rights Act, originally passed into law in 1965, is set for reauthorization in 2007. Though the coming fight over reauthorization is often characterized as a battle over the reauthorization of the Voting Rights Act in toto, the reauthorization discussion actually has two elements. One element is the reauthorization of specific sections of the Voting Rights Act, such as the provisions that allow language minorities to fully participate in the voting process and the provisions mandating the preclearance of changes in voting standards, practices or procedures in specific (mostly Southern) jurisdictions. The other element is a general discussion of the role that the Voting Rights Act should retain in our voting rights jurisprudence. One issue is whether the Voting Rights Act should affirmatively protect the electoral gains that minorities have reaped since the Voting Rights Act was passed. Another is whether a strong Voting Rights Act is necessary to counteract the racial effects of facially neutral voting policies and procedures. The panelists will discuss these issues and others in a lively session that will preview many of the arguments that will be made in the upcoming reauthorization debates in Congress.


9:00 - 10:45 a.m.
Section on Professional Responsibility

The Law and Ethics of Criminal Defense in Terrorism Cases

Moderator: Irma S. Russell, The University of Memphis Cecil C. Humphreys School of Law
Speakers: Baher Azmy, Seton Hall University School of Law
Peter Margulies, Roger Williams University School of Law
William H. Simon, Columbia University School of Law
Ellen Yaroshefsky, Yeshiva University Benjamin N. Cardozo School of Law

Recent developments in law and terrorism cases have created new questions for defense counsel. These developments include the recent conviction of defense attorney Lynne Stewart, based in part on her alleged violation of government-imposed Special Administrative Measures (SAM’s) limiting her communication with her client Sheik Abdel Rahman (the “blind Sheik”). While lawyers in high-profile cases have relied on access to the media to humanize their clients and mobilize public support, the government’s use of SAM’s has made these defense tasks more difficult. The government’s restrictions on lawyers’ communication with clients detained as alleged unlawful combatants at the Guantanamo Bay Naval Base highlights the same compelling issues.

These substantial defense concerns dovetail with the public’s interest in assuring that a lawyer for an accused terrorist diligently performs the role of advocate, without “crossing the line” into the role of accomplice in wrongdoing. Virtually all defense counsels seem cognizant of this boundary. However, the evidence in the Lynne Stewart case demonstrates that the line is not always easy to discern, and that even veteran defense counsels can lose their way.

Our panel is well-situated to consider these issues. Professor Azmy represents a Guantanamo detainee; Professor Margulies has written on the virtues and vices of lawyer-client solidarity in terrorism cases; Professor Simon, who helped fashion a critical perspective on professional responsibility, consulted with the prosecution in the Stewart case; and Professor Yaroshefsky, who has written about prosecutorial use of informants, served on the Stewart defense team. We look forward to a provocative analysis of the dimensions of the lawyer’s role and the impact of government regulation in terrorism cases.


9:00 - 10:45 a.m.
Section on Remedies, Co-Sponsored by Section on Defamation and Privacy

Defamation: N.Y. Times v. Sullivan, Commonwealth Qualified Privilege Standards and Empirical Research

Moderator: Melissa A. Waters, Washington and Lee University School of Law
Speakers: Andrew Kenyon, Professor and Director, Centre for Media and Communication Law, Melbourne Law School, Victoria, Australia -view outline-
David A. Logan, Roger Williams University School of Law
David F. Partlett, Washington and Lee University School of Law
Clive Walker, Department of Law, University of Leeds, Leeds, United Kingdom -view outline-
Russell L. Weaver, University of Louisville Louis D. Brandeis School of Law

In 1964, the United States Supreme Court rendered its landmark decision in New York Times, Inc. v. Sullivan, a decision that columnist Anthony Lewis referred to as a “thrilling decision” and that Alexander Meiklejohn referred to as “an occasion for dancing in the streets.” In rendering the Sullivan decision, the Court acted without empirical support for its conclusion regarding how its newly announced “actual malice” standard would function. Instead, the Court simply announced its standard and used logic to guess how the new standard would affect the courts, the media and defamation plaintiffs.

Since the Sullivan decision was rendered, Commonwealth countries have chosen to go in a different direction. Informed by the Sullivan decision, and its strong free speech approach, but rejecting Sullivan’s liability standards and its burden of proof, a number of Commonwealth countries have opted to extend common law qualified privilege to provide greater protection for speech. The first such decision was rendered by Australia’s High Court in Lange v. Australian Broadcasting Corporation. That decision was followed by the New Zealand Court of Appeal’s decision in Lange v. Atkinson and the House of Lords decision in Reynolds v. Times Newspapers Ltd.

This program analyzes the various Commonwealth standards, and empirical research on those standards as well as on the Sullivan standard. Dean Partlett, Professor Walker and Professor Kenyon will (respectively) discuss the jurisprudential underpinnings of the Australian, English and New Zealand decisions. Professor Kenyon will also discuss empirical research relating to the New Zealand and Australian decisions. Professor Weaver will discuss empirical research relating to the impact of the Sullivan decision, as well as the Australian and English decisions. Finally, Dean Logan will discuss empirical research relating to the Sullivan standard.


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