Hot topic programs at the AALS Annual Meeting highlight important and timely topics on some of society and law’s most pressing issues. These programs were selected by the Program Committee for the AALS 2019 Annual Meeting from proposals submitted by law school faculty.
Thursday, January 3
Narratives about Sexual Harassment & Sexual Violence: #MeToo, the Kavanaugh Allegations & Pending Changes to Title IX Enforcement
10:30 am – 12:15 pm
This roundtable brings together diverse scholars from inside and outside the legal academy who have written extensively about Title IX, sexual harassment, and sexual violence. These scholars will briefly discuss their research on a wide range of narratives including:
- The reporting barriers faced by victims of sexual harassment and violence and either the embracement or rejection of “trauma-informed” practices that may overcome such barriers to encourage reporting;
- Criminal-level procedural and substantive rights for both complainants and respondents in different legal systems;
- What social scientists have identified as a particular reaction to accusations of wrongdoing by some accused wrongdoers (DARVO, or “Deny, Attack and Reverse Victim & Offender”) and others have referred to as “weaponized victimhood;”
- The frequency and the harms of sexual violence compared with the frequency and harms of accusations of sexual violence;
- Erasure of women of color as harassment victims and assertion of “high-tech lynching” claims that subtly stereotype African American men as rapists;
- Narratives suggesting that most conduct reported by victims as sexual harassment is actually protected free speech or exercises of academic freedom, even when that conduct involves physical contact;
- “Consensual” sexual relationships between non-peers (e.g. faculty and students) being essentially victimless situations, even though third parties (e.g. fellow students) do not or perceive that they do not receive the same benefits as their peer in the consensual relationship;
- The suggestion that definitions of sexual misconduct in school conduct codes are too vague or confusing to be fair.
The roundtable will also provide significant time for discussion of the notice of proposed rule-making, the context and surrounding narratives, and the organized efforts to encourage the public to comment.
Partisan Conflict and the Legitimacy of the Supreme Court
1:30 – 3:15 pm
As appointments to—and decisions by—the Supreme Court have become increasingly divisive, many observers have expressed concern that the legitimacy of the Court is at stake. Our constitutional system relies on a Supreme Court that is trusted to have the final say on the meaning of the Constitution because the Court is insulated from partisanship and politics. But instead of viewing the Court as a neutral body that decides cases based on principles of law, the public increasingly sees the Court as being driven by partisan considerations. Thus, while a majority of Americans once expressed strong confidence in the court, a July 2018 Gallup poll reports that only 37 percent do now.
This panel will discuss two questions. First, do we have to worry about the legitimacy of the Supreme Court? Second, what steps should be taken to address concerns about the Court’s legitimacy? Some states, for example, use judicial nominating commissions for appointments to their supreme courts. Should there be a federal judicial nominating commission? What other reforms would be desirable? In addition to discussing concerns raised by the two most recent Supreme Court appointments, the program will address questions of legitimacy from a broader historical perspective.
Friday, January 4
Religious Exemptions and Harm to Third Parties
8:30 – 10:15 am
What role should harm to third parties play in the government’s ability to protect religious rights? This question is particularly weighty at this moment in American history, when religious exemptions have perhaps never been more controversial. In light of recent Supreme Court cases like Hobby Lobby and Masterpiece Cakeshop, some scholars have advanced new theories that would place strict limits on government’s ability to grant religious exemptions that result in harm (or externalities) to third parties who do not benefit from that religious practice. This program will explore the historical, theoretical, normative, and doctrinal arguments for and against a rule that would prohibit religious exemptions that result in more than de minimis harm to identifiable third parties.
Civil Rights in the Aftermath of the Kavanaugh Hearings & Confirmation
1:30 – 3:15 pm
The Senate Judiciary Committee’s September 27, 2018 hearing concerning Dr. Christine Blasey Ford’s allegations that US Supreme Court nominee Brett Kavanaugh committed assault upon her person proved a watershed political and jurisprudential moment. We have now learned of Justice Kavanaugh’s positions on reproductive freedoms, immigrant rights, presidential power, and female testimonial credibility, which may well transform the protections afforded by the Due Process and Equal Protection Clauses and the Civil Rights Act. Furthermore, his performance at the September 27 hearing triggers issues about judicial temperament, ethics, and even the judge’s role as a creator of legal and social truth.
In this panel, legal scholars will address the ways in which Justice Kavanaugh’s nomination, hearings, and confirmation impact a wide variety of legal domains, including sexual harassment and assault laws, workplace equality, policing, substantive and criminal law, administrative law, the field of judicial ethics, and the standards of proof appropriate for criminal, legal, and political processes. We will also engage the ways in which Justice Kavanaugh’s role in today’s political and legal climate intersects with jurisprudence, such as critical legal feminism and the moral theory of epistemic injustice.
Saturday, January 5
Criminal Justice Reform Consensus?
10:30 am – 12:15 pm
This panel will explore important new criminal justice developments–both legislative and initiative–that might be viewed as a new form of reform consensus. Developments include the federal FIRST STEP Act (Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act), which could be passed by Congress this year; and Ohio’s Ballot Issue 1, which polling suggests will be approved by Ohio voters. The FIRST STEP Act, which has already received overwhelming support from both parties in a House vote this past summer, focuses on correctional reform including the placement of incarcerated people and the treatment of pregnant and post-partum women in custody, and re-entry services. The Ohio Ballot Issue 1 would reduce drug possession offenses to misdemeanors, prohibit courts from sending probationers who commit noncriminal violations to prison, and redirect resulting savings to drug treatment, crime victim, and rehabilitation programs, all through an amendment to the Ohio state constitution.
NAFTA 2.0: Are We Building or Burning Bridges With USMCA?
1:30 – 3:15 pm
On September 30, 2018, the United States, Mexico and Canada finally reached agreement on revising what President Trump has described as the “worst trade deal in the history of trade deals, maybe ever.” What was the North American Free Trade Agreement (NAFTA) will now be the United States-Mexico-Canada Agreement (USMCA). But what changes does it have in store besides its name?
This panel will unpack and analyze the various chapters of USMCA to consider what impact on trade, investment, and foreign relations they may have both within and beyond North America. The panel will compare the relevant provisions of USMCA to NAFTA and to other recent free-trade agreements, including the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and ask whether USMCA represents the best path forward for the three countries in service of their goal to “strengthen anew the longstanding friendship between them and their peoples” and “support mutually beneficial trade leading to freer, fairer markets, and to robust economic growth in the region.”