Hot Topics

Hot Topic presentations are programs selected by the Immediate Past President in consultation with the Executive Committee that allow Annual Meeting participants to engage in conversation on late-breaking issues. This year's committee chair, Immediate Past President N. William Hines, has announced four topics that will be presented on Thursday and Friday. The four panels chosen reflect the requirements that the subjects be topical, that they be proposed by individuals and not Sections, Committees or any other kind of organization, and that a range of perspectives be included in the presentation. It was also important that the topics should not be ones addressed elsewhere in the Meeting Program.

The Significance of Climate Change Litigation Massachusetts v. EPA and Other New Developments

       This case's importance is highlighted by the context in which it occurs. With the Congressional shift in power in the recent midterm elections, key Democrats have begun to signal a change in legislative approaches to climate change. Moreover, states and localities continue to push federal climate policy. Not only are they litigants in Massachusetts v. EPA , but they also have become laboratories of aggressive efforts to control greenhouse gas emissions. California 's landmark legislation passed earlier in the fall² serves as just one instance of this phenomenon.

       As a legal matter, this case is occurring against a broader map of state, federal, and international climate change adjudication in the United States and elsewhere. Public nuisance actions have been brought by state and local governments, as well as nongovernmental organizations, against energy companies and automakers. Other actions under administrative and environmental law push the governmental decisionmakers-from a locality in Australia to the OPIC and ExIm in the United States -to conduct environmental impact assessments that include climate change. A pending case in Nigeria and a petition brought by the Inuit to the Inter-American Commission on Human Rights frame climate change as a human rights issue.³

       The proposed Hot Topics panel will analyze the Massachussetts v. EPA case against this law and policy backdrop. The discussion will explore this case as an example of climate change litigation, and as part of the policy debate over the regulation of greenhouse gas emissions. Hari Osofsky, University of Oregon will serve as moderator and panelist. Other panelists include: William Burns, Santa Clara University; Lisa Heinzerling, Georgetown University ; and David Hunter, American University. The panel will take place on Thursday, January 4 from 8:30-10:15 a.m. in the Marriott Salon I, Lobby Level at the Marriott Wardman Park .

¹See Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005), cert. granted , 2006 WL 1725113 (U.S. Dist. Col. June 26, 2006) (No. 05-1120); http://www.supremecourtus.gov/docket/05-1120.htm.

²See http://www.climatechange.ca.gov/.

³For a discussion of these cases see, William C. G. Burns, The Exigencies That Drive Potential Causes of Action for Climate Change Damages at the International Level , 98 Am. Soc'y Int'l L. Proc. 223 (2004); Hari M. Osofsky, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance , 83 Wash. U. L.Q. 1789 (2005); Richard W. Thackeray, Jr., Struggling for Air: The Kyoto Protocol, Citizens' Suits Under the Clean Air Act, and the United States' Options for Addressing Global Climate Change , 14 Ind. Int'l & Comp. L. Rev. 855 (2004) (Note).

Reproductive Rights - The Next Decade

Roe 's future is increasingly contested. In November, a sharply divided Supreme Court heard argument in the late-term abortion case, and Senator John McCain, a leading contender for the Republican presidential nomination, announced that he supports Roe 's overruling. With continuing debate over Roe, justifications for abortion restrictions are in flux. South Dakota recently enacted an abortion ban to protect women from abortion; even as voters rejected the ban for lack of a rape/incest exception, woman-protective antiabortion argument is emerging as an important new justification for abortion restrictions in arenas around the country. The site of the reproductive rights conflict is shifting. Debate about abortion now engulfs the regulation of stem cell research and contraception; President Bush just appointed a doctor to direct federal family planning programs who serves on the board of the National Abstinence Clearinghouse (directed by the woman who led the abortion ban campaign in South Dakota ).

       The panel will ask how recent and longer-term shifts in law and politics will - or should - alter the ways we reason about reproductive rights and the institutions we expect to protect them. The panelists include: Walter Dellinger, Duke University; Dawn E. Johnsen, Indiana University-Bloomington; Jeffrey Rosen, George Washington University; and Reva B. Siegel, Yale University. It will be presented on Thursday, January 4 from 4:00-5:45 p.m. in the Marriott Salon II Ballroom, Lobby Level at the Marriott Wardman Park .

Federalism, Autonomy and National Reconciliation in Iraq

This panel will focus on recent scholarship and political debates concerning plans for federalism and local autonomy in Iraq . The formation of a "national unity" government and the trial of Saddam Hussein have focused the world's attention on transitional justice and national reconciliation in Iraq. As the unity government's effectiveness has come into question, however, there has been increasing support for a loose confederation of regions or even a de facto partition modeled on the Dayton Accords in Bosnia. The incoming Democratic Chairman of the Senate Foreign Relations Committee, Joseph Biden of Delaware, called in September and again after the 2006 election for a decentralized Iraq with Kurdish, Shi'a, and Sunni regions modeled on the "ethnic federations" of Muslims, Croats and Serbs in Bosnia . Many in Iraq agree, with the Iraqi parliament passing legislation in October 2006 creating a procedure for individual provinces to join together to form federal regions like the Kurdistan Federal Region in northern Iraq. Others, like the Executive Director of the Iraq Foundation, a prominent NGO, argue that partition into a loose confederation of regions would be a "disaster," with stepped-up foreign intervention and a protracted civil war the likely result. This panel will address several questions: how can the United States and the international community reduce ethnic and sectarian tensions and promote national reconciliation in Iraq ? What role will federalism, local autonomy, and de jure or de facto partition play in reducing the scale of civil conflict and human rights abuses? What limits do the law of foreign occupation, international human rights, and the new constitution of Iraq place on measures promoting federalism and autonomy?

       Panelists will include Feisal al-Istrabadi, Deputy Permanent Representative Iraqi Mission to the United Nations, New York, New York; Cyra A. Choudhury, Georgetown University; Haider Hamoudi, Columbia Law School; Michael Newton, Vanderbilt Law School; and Hannibal Travis, Florida International University. Moderated by Clark Lombardi, University of Washington, the panel will take place on Friday from 10:30 a.m. to 12:15 p.m. in the Marriott Salon I Ballroom, Lobby Level in the Marriott Wardman Park .

Congressional Power and the Military Commissions Act of 2006: Stripping Jurisdiction and Precluding Consideration of Geneva Convention Claims

The Military Commissions Act ("MCA"), enacted in October 2006, raises an array of deeply-controversial questions relating to the detention, treatment, and prosecution of persons classified as "enemy combatants." This panel will examine those aspects of the MCA that raise constitutional concerns relating to the separation of powers. Specifically, the panel will address the power of Congress to limit or even eliminate habeas corpus jurisdiction for non-citizen enemy combatants; to eliminate "all other" forms of judicial review for claims relating to the detention, transfer, treatment, or prosecution of detainees (except for a limited form of review in the D.C. Circuit Court of Appeals); and to prohibit judicial consideration of any claims based on the Geneva Conventions. These provisions raise profoundly important and controversial questions, and it is important that the legal academy be seen to be fully engaged with them.

       The panelists of this program include: Janet Alexander, Stanford Law School; Curtis A. Bradley, Duke University; Carlos Manuel Vazquez, Georgetown University; Bradford A. Berenson, Partner, Sidley Austin LLP; and Stephen Isaiah Vladeck, University of Miami. Robert M. Chesney, Wake Forest University will serve as moderator. The panel will be presented from 3:30-5:15 p.m. on January 5 in Wilson C, Mezzanine Level at the Marriott Wardman Park .