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Program Descriptions
Thursday, November 17
8:00am - 9:00am
Opening Plenary - The Honorable John Graham, OIRA Administrator,
White House Office of Management and Budget
9:00am – 10:30am
Homeland Security and the International Transportation of Goods (1.5 hrs CLE)
U.S. Customs and Border Protection (CBP), now part of the Department of Homeland
Security, has been tasked with developing programs to secure the
supply chain of goods entering the country and to prevent the entry
of weapons of mass destruction and biological weapons. While maintaining
its traditional duties dealing with commercial issues, the CBP has
faced these new challenges with various programs such as the Customs
Trade Partnership Against Terrorism (C-TPAT), the Container Security
Initiative (CSI) and other programs. Recently these programs have
undergone changes and both congressional committees and the General
Accounting Office have reviewed them. This program will discuss
the past, present and future directions of the CBP to secure the
border and the U.S. supply chain. What are the advantages and responsibilities
of private companies that participate in these programs? In house
counsel involved in trade or transportation, as well as general
practitioners involved in advising clients in various related industries
should attend this program.
Moderator:
•Leslie Alan Glick, Porter Wright Morris & Arthur
Panelists:
•Ron Cass, Principal, Ron Cass & Associates
•Lindsay B. Meyer, Partner, Venable LLP
•Joel Weber, Couri & Couri
9:00am – 10:30am
Revisions to the Model State Administrative Procedures Act (1.5
hrs CLE)
National Conference of Commissioners on Unifrom State Laws (NCCUSL)
is considering revisions to the MSAPA, last revised in 1981. This
panel will bring together participants in the revision process,
as well as leading administrative law scholars, to address the
scope and merits of the project.
Panelists:
•Michael Asimow, Professor, UCLA School of Law
•John Gedid, Professor, Widener School of Law
•Jim Rossi, Professor, Florida State University College of
Law
• H. Lane Kneedler, Partner, Reed Smith LLP
9:00am – 10:30am
Regulating Identity Theft and Data Breaches (1.5 hrs CLE)
Co-sponsored by the Antitrust Law Section Committee on Privacy
and Security and the Litigation Section Committee on Consumer and
Personal Rights
Identity theft has become a major concern for regulatory agencies
and numerous industry sectors. Recent surveys have indicated that
between 9 and 10 million Americans became victims of identity theft
in a one-year period. Moreover, a growing number of businesses and
financial institutions have become concerned about the potential
risks and liabilities associated with data compromises, which may
involve anything from harmless data exposures to account fraud to
full-blown identity theft. This panel will identify current trends
in identity theft and data breach problems, discuss current enforcement
and prevention initiatives in the public and private sectors, and
explore the potential impact of federal and state legislative proposals
to regulate identity theft and data exposures and compromises.
Moderator:
•John D. Arterberry, Executive Deputy Chief, Fraud Section,
Criminal Division, U.S. Dept. of Justice
Panelists:
•James D. Barnette, Partner, Collier Shannon Scott
•Lois C. Greisman, Associate Director, Division of Planning
and Information, Bureau of Consumer Protection, Federal Trade Commission
•Mark MacCarthy, Senior Vice President for Public Policy, Visa
U.S.A.
9:00am – 10:30am
Judicial Review of Agency Letters—Has Automatic Laundry Been
Hung Out to Dry? (1.5 hrs CLE)
Some thirty years go, National Automatic Laundry and Cleaning
Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971), found a
letter from the agency head to be reviewable agency action. Such
review of informal agency statements has long been a contentious
issue. Three recent decisions raise questions about the vitality
of National Automatic Laundry, suggesting increased judicial
resistance to review of informal issuances.
Moderator:
•William S. Jordan, III, Professor, University of Akron School
of Law
Panelists:
•Ronald M. Levin, Professor, Washington University School
of Law
•Otto G. Matheke, Senior Attorney for Litigation and Enforcement,
Office of the Chief Counsel, NHTSA
•William R. Weissman, Partner, DLA Piper Rudnick Gray Cary
9:00am – 10:30am
Ensuring Confidentiality in Government ADR (1.5 hrs CLE)*
fter events in the late 1990’s indicated widespread confusion
and controversy over confidentiality in Federal Agency ADR, three
ABA sections created a Government ADR Confidentiality Committee.
This Confidentiality Committee — comprised of public and private
sector ADR program managers, mediators, and lawyers, personnel
from offices of inspectors general, Department of Justice lawyers,
and others – has recently completed its Confidentiality Guide.
The Guide offers practical advice on how best to assure appropriate
levels of protection for information submitted in confidence in
federal agencies’ ADR proceedings. Its analysis seeks to assist
program administrators, neutrals, and others in dealing with day-to-day
issues like case intake, convening, confidentiality agreements,
document handling, access requests, evaluation, and training,
and to promote a consensus that will reduce future confidentiality
breaches.
The experienced mediators, program administrators, and other experts
on this panel will discuss the Guide and its recommendations,
related intragovernmental activities, and offer practical insights
on protecting sensitive data in a variety of government ADR settings.
Moderator:
•Philip Harter, Professor, University of Missouri
Panelists:
•David Batson, Environmental Protection Agency
•Robert Fisher, RESOLVE Inc.
•Sandy Keith, Office of Inspector General, Corporation for
Public Broadcasting
*This program will be held at the ABA Office, 740 15th Street,
NW.
10:45am – 12:15pm
The Federal Bank Regulator’s Approach to Data Security (1.5 hrs
CLE)
ince the beginning of the year there have been a number of data
breaches involving the confidential information of consumers.
Legislation has been introduced in Congress and in many state
Houses. Insured depository institutions have been required to
have policies and procedures in place for several years to mitigate
the danger of breaches of customer information. This session looks
at the banking agencies’ guidance, what is required for institutions,
how examiners are looking at what banks are doing. Also, the session
addresses the interaction with the bills in Congress and the states
and the impact that passage would affect the regulatory process.
Moderator:
•Charlotte M. Bahin, Sr. VP for Regulatory Affairs, America’s
Community Bankers
Panelists:
•Mark Fajfar, Counsel, Fried Frank Shriver Harris & Jacobson
•Jeff Gillespie, Assistant Chief Counsel, Office of the Comptroller
of the Currency
•Robert Gordon, Counsel, House Financial Services Committee
10:45am – 12:15pm
The Structure of Statutory Interpretation Within the Executive
Branch (1.5 hrs CLE)
Statutory interpretation is a pervasive task for executive branch
actors. It arises in the wide variety of circumstancess that involve
enforcement or implementation of the law. Moreover, for the vast
number of actions that executive officials take that never give
rise to a justiciable dispute, executive branch officials are
the primary (and final) expositors of statutory meaning.
This panel examines the principles of statutory interpretation
that apply to executive branch actors. To what extent should principles
of statutory interpretation developed by courts also apply to
executive actors? How is authority of interpretive methods itself
allocated within the executive branch, whether among the White
House, the Attorney General, and the agencies, or within agencies
themselves? And ultimately, do our current structures of judicial
review adequately account for the interpretive practices of executive
branch actors?
Moderator:
• Bernard W. Bell, Associate Dean and Professor, Rutgers
Law School-Newark
Panelists:
•Trevor W. Morrison, Assistant Professor, Cornell Law School
•Randolph D. Moss, Partner, WilmerHale LLP
•Kevin M. Stack, Assistant Professor, Benjamin N. Cardozo
School of Law
10:45am – 12:15pm
Bringing Rulemaking Into the Twenty-First Century (1.5 hrs CLE)
Scholars, practitioners and stakeholders of all persuasions have
complained for decades that rulemaking takes far too long to complete,
yet still (too often) leaves many people dissatisfied with both
the process and the outcome. This panel brings together leading
scholars and agency officials briefly to consider the achievements
and pitfalls of traditional rulemaking, survey the mixed track
record of various reform experiments (such as negotiated rulemaking,
e-rulemaking, and iterative comment) and, most of all, to present
and evaluate one or more specific proposals for reform.
Panelists:
•Don Arbuckle, Deputy Administrator, Office of Information
and Regulatory Affairs, OMB
•Neil Eisner, Asst General Counsel for Regulation and Enforcement,
Department of Transportation
• Philip Harter, Professor, University of Missouri School
of Law
• Richard Parker, Professor, University of Connecticut School
of Law
• Stuart Shulman, Professor, University of Pittsburgh
10:45am – 12:15pm
Rosenberg |
12:30pm – 2:00pm
Annual Awards Luncheon
2005 Mary C. Lawton Award for Outstanding Government Service
Morton Rosenberg
American Law Division
Congressional Research Service
Introduction of the Lawton Award by Daniel Mulhollan, Director,
Congressional Research Service
Magill |
2005 Award for Scholarship in Administrative Law
M. Elizabeth Magill
Professor
University of Virginia School of Law
2:15pm – 4:00pm
The New Medicare Beneficiary Appeals System: Rubber Stamp or Real
Reform?
Co-sponsored by the National Conference of Administrative Law Judges, the
Health Law Section, and the TTIPS Section
As part of the Medicare claims appeals system overhaul, the Centers for
Medicare & Medicaid have contracted with Qualified Independent Contractors
(QICs) to reconsider denied claims, replacing the Part B Fair Hearing. Is QIC
reconsideration merely a rubber stamp creating another barrier or is it real reform
in efficiently resolving appeals?
Panelists:
•Vicki Gottlich, Senior Policy Attorney Beneficiary Advocate,
Center for Medicare Advocacy
•Robert P. Charrow, Shareholder, Greenberg Traurig, LLP
•David Cade, Deputy General Counsel, Dept. of Health and Human
Services
2:15pm – 4:00pm
Rulemaking – An Insider’s Guide to Writing Effective Comments
Trial advocacy and appellate advocacy get lots of attention;
"administrative rulemaking advocacy" almost none. But preparing
effective comments on proposed rules is an essential skill for
the administrative lawyer. Three experienced current and former
agency lawyers will discuss how to make the most of this chance
to inform and influence agency decisionmaking, discussing which
sorts of information, arguments, style, and approach work best.
Moderator:
•Richard G. Stoll, Partner, Foley & Lardner LLP
Panelists:
•Jonathan E. Nuechterlein, Partner, WilmerHale LLP
• Caroline Wehling, Attorney, Office of General Counsel,
EPA
• Ann H. Wion, Deputy Chief Counsel for Program Review, Office
of General Counsel, Food and Drug Administration
2:15pm – 4:00pm
Privatization of Government Functions—From Iraq to Katrina (1.75
hrs CLE)
The increase in privatization of functions previously performed
by government officials has created problems both of oversight
and of appropriateness of the functions privatized. This has been
seen with the contracting out of military functions in Iraq, but
it occurs throughout government. This panel will discuss the privatization
or outsourcing movement as it relates to federal functions that
are arguably “inherently governmental” and what that term means
in light of OMB’s Circular A-76 process, the Subdelegation Act
and relevant constitutional requirements.
Moderator:
•Paul Verkuil,Professor, Cardozo Law School
Panelists:
•Matthew Blum, Senior Attorney, Office of Federal Procurement
Policy, OMB
•Daniel Gordon, Managing Associate General Counsel, General
Accountability Office
• Sallyanne Payton, Professor, Michigan Law School
•Steve Schooner, Professor, George Washington University
Law School
2:30pm – 4:00pm
Judicial Security and Continuity in the Post 9/11 Environment
A panel of judges will discuss the realities of judicial security
in the Post 9/11 environment, including threat assessment, security
precautions and strategies. The panel will also discuss recent
experiences related to Hurricane Katrina and how the Courts should
be prepared to provide continuity of judicial services in the
face of natural disaster.
Moderator:
•The Honorable Ruth L. Kleinfeld
Panelists:
•The Honorable Mark A. Brown
• The Honorable Tyrone Butler
• Paul Durette, Federal Protective Service
• The Honorable Chris Graham
• The Honorable John Vittone
• Wendell C. Shingler, Federal Protective Service
2:30pm – 4:00pm
Enforcement, Ethics, and Ombuds: A Practical Approach to a Theoretical
Dilemma (1.5 hrs CLE) *
A company may establish an Ombuds Office to address particular issues such
as employment discrimination or securities and accounting matters.
The office is designed to provide a mechanism by which employees
can raise an issue so that it can be resolved within the firm itself.
There is a potential tension between this approach and an enforcement
agency which often prefers that alleged violations be handled in
a way that will not remain confidential within the company, perhaps
by referral directly to the agency itself. A similar tension might
arise when an enforcement agency establishes an Ombuds Office to
work out issues informally. This program will explore the role and
function of Ombuds Offices as they relate to enforcement agencies
such as the SEC, EEOC, and IRS.
Moderator:
•Philip Harter, Professor, University of Missouri Law School
Panelists:
•Nina Olson, National Taxpayer Advocate, Internal Revenue Service
•Joan McKown, Chief Counsel – Enforcement Division, SEC
• Theresa Prator, Ombuds, Los Angeles World Airport (LAX) -
invited
5:30pm – 7:30pm
Reception at the historic Dolley Madison House, 1520 H Street, NW
Dolley was born in Greensboro (at that time the Quaker community of New
Garden), North Carolina. Widowed early, she eventually found herself living in
Philadelphia with her young son. It was there that wealthy Virginia planter and
statesman James Madison sought her out, and after four months, wed her. Dolley
then shed her drab clothes, her naturally merry personality bubbling to the
surface.
Serving as Washington, D. C., hostess for widower-President Thomas Jefferson at
the turn of the 19th century, and then as mistress of the White House when
James Madison was president, Dolley added fun and sparkle to the social scene
in the young republic. She had been cautioned by her husband to monitor her
consumption of champagne because, "If you drink much of it, it will make you
hop like the cork."
It was natural then that her own residence on Lafayette Square would become
the focus of a social and political life that closely paralleled that of the White
House. After the president’s annual New Year’s Day reception, it was customary
for callers to troop across the Avenue from the White House to pay their respects
to the widow Madison.
In 1887 the Cosmos Club moved into Dolley Madison’s house, and was in good
company—among the best addresses, one could say. From 1800 on, the
presidents lived in the White House. The park to the north was soon lined with
residences housing distinguished American and foreign dignitaries—Stephen
Decatur, Henry Adams, James Blaine, Henry Clay and Daniel
Friday, November 18
7:30am – 8:30am
Section Committee Roundtable Breakfasts
8:45am – 10:15am
Bonus Session: Hurricane Katrina and
the Administrative Process (1.5 hrs CLE)
In the wake of the destruction and devastation that Hurricane Katrina
visited on New Orleans, the country is considering the extent to
which failures in the environmental, natural resource, disaster-planning
and emergency response functions of government contributed to the
catastrophe. While there is disagreement about the degree of government
failure, it does seem clear that at least some of the damage visited
upon New Orleans by Hurricane Katrina could have been prevented
by wiser public policy choices. Panelists with different perspective
will consider whether there were flaws in the administrative process
such as the lack of public participation, the division of authority
between federal and state officials, or the process of assessing
risks, that led to failure in government policy. The panel will
also consider what improvements should be made. Should, for example,
Congress establish an independent disaster-review board to assess
vulnerable locations and set priorities for spending on disaster
prevention?
• Randolph J. May, Senior Fellow and Director of Communications
Policy Studies, The Progress and Freedom Foundation
• Alyson Flournoy, Professor and Director of the Environmental
and Land Use Law Program, University of Florida Levin College of
Law
• David McIntosh, Partner, Mayer, Brown, Rowe & Maw
• Sidney A. Shapiro, University Distinguished Chair in Law,
Wake-Forest University
10:15am – 12:15pm
Recent Developments in Administrative Law (2.0 hrs CLE)
In this signature event of the Administrative Law Section’s Fall
Conference, scholars from the academy and private practice will
present a comprehensive overview of the most important administrative
law developments in the last twelve months. It’s all the administrative
law news that’s fit for discussion, and it comes packaged in one
fast-paced program that has become a must-attend event for anyone
practicing federal law or involved with regulation in Washington.
Moderator:
•Jeffrey S. Lubbers, Fellow in Law and Government, American
University Washington College of Law
Panelists:
• Constitutional Law: Bernard Bell, Associate Dean and Professor,
Rutgers Law School-Newark
•Judicial Review: Richard Murphy, Professor, William Mitchell
College of Law
• Adjudication: Michael Asimow, Professor, UCLA School of
Law
•Rulemaking: Michael Herz, Visiting Professor, New York University
School of Law and Katherine Lazarski, Associate, Foley & Lardner
LLP
Friday, November 18
EU Administrative Law Symposium
Van Gerven |
12:30pm - 2:00pm
Symposium Opening Luncheon
Keynote Speaker: Walter Van Gerven, PhD
"The European Union: A Polity of States and Peoples"
Professor Van Gerven is a member of the faculty of law at the Leuven Center
for a Common Law of Europe in Belgium. He is formerly Vice-Rector
and Chairman of the Social Sciences Group of Leuven, and formerly
President of the Belgian Banking Commission. He has also served
as Advocate General of the European Court of Justice in Luxembourg
and on a committee of independent experts to examine fraud, nepotism,
and mismanagement in the European Union Commission.
The Section acknowledges George Washington University School of
Law for sponsoring the participation of Professor Van Gerven.
2:00pm - 3:30pm
Participation in Rulemaking in the Information Age:
Lessons from Europe for the United States
The globalization of economic activity is motivating the creation of government
institutions that transcend national boundaries – and for that reason also outstrip
national political traditions. These institutions must find approaches to regulation
that can both satisfy divergent politics and elude the frustrating grip of those
whose activities require public control. European Union’s procedures for
generating regulatory norms suggest possible lessons for policymakers in both
Europe and the United States. This program will discuss EU rulemaking, contrast
it with the US, and draw out the lessons from both experiences.
Panelists:
• Stuart Shulman, Professor, University of Pittsburgh
• Francesca Bignami, Professor, Duke University School of Law
• Peter L. Strauss, Betts Professor of Law, Columbia Law School
3:30 - 5:00pm
Introduction to EU Judicial Review and
Transparency/Data Protection
I. Judicial Review
Both the process and substance of EU judicial review will surprise
most US administrative lawyers. This program will explore the "competence"
of the EU courts, the European Court of Justice and the Court of
First Instance. While these courts must assure national compliance
with EU law, this discussion will focus on judicial authority over
the other EU institutions.
Panelists:
• Ronald Levin, Henry Hitchcock Professor, Washington University
School of Law
• Christoph Fedderson, Cleary, Gottlieb, Steen & Hamilton,
Brussels, Belgium
• Beth Nolan, Partner, Crowell & Moring, Washington, D.C.
II. Transparency and Privacy Protection
in the EU
This program will describe the basic
institutional and legal structure for promoting transparency and
protecting privacy rights in the EU. It will also explore the
general differences between the approach of the EU and the US
concerning these issues.
Panelists:
• Cynthia Farina, Professor of Law and Associate Dean of
Faculty, Cornell University
• Sidney Shapiro, University Distinguished Chair, Wake Forest
University School of Law
• Thomas Susman, Partner, Ropes and Gray, Washington D.C.
The EU Symposium is supported by a grant from
The Trade Delegation of the European Commission to the United
States and
Platinum Sponsor
Citizens for a Sound Economy
Gold Sponsors
Foley & Lardner LLP
Ropes & Gray LLP
Steptoe & Johnson LLP
Wilmer Cutler Pickering Hale and Dorr LLP
Silver Sponsors
Suffolk State University
Bronze Sponsor
Morgan Stanley
Bruton |
6:30pm – 9:30pm
Reception and Dinner at the Cosmos Club
Keynote Speaker: His Excellency John Bruton, European Union
Ambassador to the United States
Introductions by The Honorable C. Boyden Gray
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