The violation of an administrative regulation, or of an underlying statute, often provides a basis for criminal sanctions, as well as civil administrative penalties. The panel will address the regulated entity’s tactical assessment of whether to seek a global settlement when faced with administrative enforcement.

Understanding whether and when to expect that regulators and prosecutors will work closely together is essential for counsel advising clients that are potentially subject to both administrative and criminal sanctions. Unfortunately, the enforcement and referral protocols between an administrative agency and federal prosecutors are not always clear. Counsel face a Catch-22. On the one hand, a respondent in a civil administrative proceeding could end up inviting prosecutorial scrutiny and potential criminal sanction, where criminal penalties could have been avoided, if it seeks a global settlement. On the other hand, the acceptance of responsibility in a global settlement could help to contain and limit criminal exposure, were the violation to trigger prosecutorial scrutiny, possibly even in the absence of a referral from the agency. And the issues can be even more complex when the respondent in the administrative case is put to the choice of providing a testimony to the administrative agency when the potential, but not the certainty, of criminal exposure exists.

The panel will provide insight on how to advise and guide clients at this critical, initial stage.

Panelists:
Robert W. Ray, Partner, Kelley Drye & Warren LLP
Former Independent Counsel, Whitewater, Monica Lewinsky, White House Travel Office, and FBI Files Investigations

Lois G. Lerner, Director, Exempt Organizations, Tax Exempt Government Entities, Internal Revenue Service, Formerly, Associate General Counsel for Enforcement, Federal Election Commission

James Kohm, Associate Director, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission

Paul Pelletier, Principal Deputy Chief for Litigation, Fraud Section, Criminal Division, U.S. Department of Justice

Moderator:
Michael Asimow, Professor of Law Emeritus, UCLA School of Law

The Department of Veterans Affairs has undertaken to review, update, and in some instances completely rewrite a large section of its regulations. The VA reviewed more than 280 regulations governing filing and adjudication of claims for veteran’s benefits. Revisions to a large number of these regulations will soon be published for public comment. What are the potential benefits and drawbacks of such massive, simultaneous regulatory revisions? This program will begin with the VA Under Secretary for Benefits addressing how the need to undertake these sweeping changes was identified and the process initiated. His remarks will be followed by a panel discussionof the advantages of announcing such large proposed regulatory changes in one public notice, the problems the Department has encountered as the changes were drafted, and what might be done differently under similar circumstances in the future.

Robert M. White, Acting Chief, Regulations Rewrite Project, U.S. Department of Veterans Affairs

William F. Russo, Director of Regulations Management, Office of Regulation Policy and Management, U.S. Department of Veterans Affairs

Ethan Kalett, General Attorney, Office of General Counsel, U.S. Department of Veterans Affairs

Rick Surratt, Deputy National Legislative Director, Disabled American Veterans, Washington, DC

Ronald B. Abrams, Joint Executive Director, National Veterans Legal Services Program

Panelists will explore the signficance of the two most noteworthy opinions on scope of review from the last two Supreme Court terms -- National Cable & Telecommunications Association v. Brand X Internet Services (holding, in essence, that Chevron trumps stare decisis); and Gonzales v. Oregon ( narrowing Auer deference and exploring the link between rulemaking authority and Chevron interpretive power).

Panelists:

Kenneth A. Bamberger, Assistant Professor, Boalt Hall, Berkeley, CA

Kathryn Watts, Visiting Assistant Professor, Northwestern University School of Law, Chicago, IL

Lisa Bressman, Professor and Co-Director, Regulatory Program, Vanderbilt University Law School, Nashville, TN

Moderator:

William Jordan, III, Professor, University of Akron School of Law, Akron, OH

In the summer of 2007, The George Washington Law Review will publish its inaugural edition of the Annual Review of Administrative Law, which will feature articles by prominent administrative law scholars and student notes on administrative law. To celebrate the inaugural issue of the Annual Review of Administrative Law, The George Washington Law Review is proud to sponsor this distinguished panel of scholars, who will present the articles that will be published in the inaugural issue. As the titles of their presentations show, the contributing scholars will speak on some of the most interesting and challenging issues in the field, including Presidential power, democratic accountability, and due process in the modern administrative state.

Panelists:

Keynote Address: The President as “The Decider” in Administrative Law, Peter L. Strauss, Betts Professor of Law, Columbia University School of Law, New York, NY

Deference and Democracy, Lisa Schultz Bressman, Professor of Law & Co-Director of the Regulatory Program, Vanderbilt Law School, Nashville, TN

Due Process for Watch Lists, Peter M. Shane, Joseph S. Platt/Porter Wright Morris & Arthur Professor of Law; Director, Center for Interdisciplinary Law and Policy Studies, The Ohio State University, Moritz College of Law, Columbus, OH

Reprocessing Vermont Yankee, Jack M. Beermann, Professor of Law, Boston University Law School, Boston, MA

Moderator:

John F. Duffy, Oswald Symister Colclough Research Professor, George Washington University Law School, Washington, DC

2006 Mary C. Lawton Award for Outstanding Government Service

Lydia Quarles
Commissioner
Mississippi Workers Compensation Commission

John C. Cruden
Deputy Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice

Keynote Speaker
The Honorable Kevin J. Martin
Chairman, Federal Communications Commission

2:00pm – 3:30pm
Redistricting after Texas: League of United Latin American Citizens v. Perry (1.5 hrs CLE)

Co-sponsored by the ABA Standing Committee on Election Law

On June 28, 2006, the United States Supreme Court rendered its decision in the Texas congressional redistricting case, League of United Latin American Citizens v. Perry. While the Court held that the plan as drawn in South Texas violated the Voting Rights Act, the Court rejected the argument that mid-decade redistricting done solely to achieve partisan gain violated the Constitution. Will this decision open the floodgates to endless re-redistrictings, undertaken after each election to achieve partisan advantage? Is the decision likely to give impetus to redistricting reform measures percolating in the states? A majority of the Court still believes that challenges to partisan gerrymanders may still be brought. But will a legal standard emerge in some future case that will give legs to such a claim? And what are the implications of the Texas decision for protecting the rights of minority voters?

This panel brings together experts on the issue of redistricting to discuss how the Texas decision will shape redistricting in the years ahead. The panelists will also provide insights into the future of redistricting reform. The panelists’ diverse backgrounds and experiences in redistricting cases will provide an interesting perspective on this multifaceted issue.

Panelists:

Michael Carvin, Partner, Jones Day, Washington, DC

Richard Engstrom, Senior Fellow, Center for Civil Rights, University of North Carolina, Chapel Hill, NC

Sam Hirsch, Partner, Jenner & Block, Washington, DC

Nina Perales, Regional Counsel, Mexican American Legal Defense and Education Fund (MALDEF), San Antonio, TX

Moderator:

Trevor Potter, Attorney, Caplin & Drysdale, Washington, DC

The issue of preemption of state tort law has arisen recently concerning federal regulations. Regulatory agencies such as FDA and NHTSA have claimed preemption of state tort remedies in rulemaking preambles, and FDA has filed amicus briefs in state tort suits advising the court to dismiss the case on grounds of preemption. The program will explore the preemption and administrative law issues arising from the intersection of federal regulation and state tort law.

Professor Funk will introduce and explain the preemption and administrative law doctrines that impact whether a court will preempt state tort law in light of a federal safety regulation. Mr. Weiner and Professor Vladeck will debate whether it should be easier or more difficult to engage in such preemption.

Panelists:

William Funk, Professor of Law, Lewis & Clark Law School, Portland, OR; Scholar, Center for Progressive Reform

Robert N. Weiner, Head of Litigation Practice, Arnold & Porter, Washington, DC

David Vladeck, Professor of Law, Georgetown University Law Center, Washington, DC; formerly Director, Public Citizen Litigation Group

Moderator:

Sidney Shapiro, University Distinguished Chair in Law, Wake-Forest University, Winston-Salem, NC

This program will focus on the legal and regulatory implications of the Granholm v. Heald case and the recent Costco decision. Speakers will discuss both the constitutional and antitrust issues that have become the basis for federal court challenges after Granholm. Regulatory and legislative aspects of the post-Granholm world will also be addressed.

Panelists:

Hon. Kenneth W. Starr, Dean, Pepperdine University School of Law and Of Counsel, Kirkland & Ellis LLP, Los Angeles, CA

Curtis Coleburn, Chief Operating Officer, Virginia Department of Alcoholic Beverage Control

Steve Gross, Director, State Relations, Wine Institute, San Francisco, CA

Tracy K. Genesen, Partner, Kirkland & Ellis LLP, San Francisco, CA

Craig Wolf, Interim-President & CEO, General Counsel, Wine and Spirits Wholesalers of America, Washington, DC

Moderator:

Hon. Jean Cooper (Retired), Falls Church, VA

President George W. Bush -- like, though more frequently than, his predecessors – has often issued a signing statement when signing a bill into law. Sometimes these statements question the constitutional validity of portions of the legislation or imply that the executive branch will not fully enforce the legislation. The President’s use of these statements has proven highly controversial; last August the ABA House of Delegates adopted a resolution opposing the misuse of such statements and calling for legislation that would allow judicial review of presidential claims of the authority to disregard or decline to enforce provisions of a law he has signed. This panel will discuss the use and abuse of signing statements, the appropriateness of judicial review thereof, and the scope of the president’s discretion to ignore or refuse to enforce a law he deems unconstitutional.

Panelists:

Walter Dellinger, Partner, O’Melveny & Myers, Washington, DC; Douglas Blount Maggs Professor of Law, Duke Law School, Durham, NC; former Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice

Hon. Mickey Edwards, Lecturer of Public and International Affairs, Princeton University, Princeton, NJ; Director, Aspen Institute-Rodel Fellowships in Public Leadership, Washington, DC; former Member, U.S. House of Representatives (R- OK)

John Cooney, Partner, Venable LLP, Washington, DC; former Deputy General Counsel for Litigation and Regulatory Affairs, Office of Management and Budget

Panelists:

Matthew A. Chambers, Former Associate Director (Regulation) of the Division of Investment Management at the Securities and Exchange Commission; Partner, Wilmer Hale

Andrew B. David, Managing Director, General Counsel and Chief Compliance Officer of North Sound Capital LLC

Kathryn B. McGrath, Former Director of the Division of Investment Management at the Securities and Exchange Commission; Partner, Mayer, Brown, Rowe & Maw LLP

Christopher M. Wells, Partner, Proskauer Rose LLP

Moderator:

James Gerkis, Co-Chair of the ABA Section of Administrative Law and Regulatory Practice’s Committee on Securities, Commodities and Exchanges; Partner, Proskauer Rose LLP

3:45pm – 5:15pm
The Significance of International Standards for the Preparation, Conduct, and Dispute Resolution of Elections (1.5 hrs CLE)

Co-sponsored by the ABA Standing Committee on Election Law

This program will kick-off the Section’s International Elections Standards Project which is being co-sponsored with the Sections of State & Local Government and International Law and the Standing Committee on Election law. The Panel members will discuss their experience on the need for international standards and the scope of the project from party/candidate identification, election administration, voting through contests/recounts. Interested Section members are encouraged to attend and participate in the program as Panel members discus the scope of the standards.

Panelists:

Andrew Popper, Professor, Washington College of Law, American University, Washington, DC

Patrick Merloe, Senior Associate Director, Programs on Election Processes, National Democratic Institute for International Affairs, Washington, DC

E. Mark Braden, Of Counsel, Baker & Hostetler LLP, Washington, DC

Ryan P. Phair, Associate, WilmerHale, Washington, DC

Moderator:

John Hardin Young, Sandler, Reiff & Young, P.C., Washington, DC
Co-Chair, ABA Administrative Law Section International Election Standards Project

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 administrative law or involved with regulation in Washington.

Presenters:

Adjudication: Michael Asimow, Professor, UCLA School of Law, Los Angeles, CA

Constitutional Law: Bernard Bell, Associate Dean for Academic Affairs & Faculty, Professor, and Herbert Hannoch Scholar, Rutgers School of Law, Newark, NJ

Judicial Review: Richard Murphy, Research Professor, William Mitchell College of Law, St. Paul, MN

Rulemaking: Paul R. Noe, Counsel, Crowell & Moring LLP, Washington, DC
Katherine Lazarski, Associate, Foley & Lardner LLP, Milwaukee, WI; Katherine Lazarski, Associate, Foley & Lardner LLP, Milwaukee, WI

Moderator:

Jeffrey S. Lubbers, Fellow in Law and Government, American University Washington College of Law, Washington, DC

It is often observed that the Attorney General serves two masters: the law and the president. The agency general counsel’s position is similar but more challenging: she must contend not only with applicable legal requirements and a politically oriented boss, but also with the Department of Justice, the White House, OMB, the regulated community, and congressional oversight. No other government attorney sits at such a confluence of conflicting pressures. The General Counsel is usually in the thick of agency policymaking but is not a policymaker; the GC must ensure agency officials understand legal limitations but runs the risk of being resented as “an abominable no-man.” This panel of present and former agency General Counsels will discuss the role, responsibilities, and authority of the agency General Counsel, as well as how the conflicting pressures and obligations of the job can best be reconciled.

Panelists:

Hon. Ann Klee
Partner, Crowell & Moring LLP, Washington, DC
former General Counsel, U.S. Environmental Protection Agency

Hon. David R. Hill
General Counsel
U.S. Department of Energy

Hon. Mark Robbins
Executive Director
Privacy and Civil Liberties Oversight Board, White House, Executive Office of the President
former General Counsel, Office of Personnel Management

Hon. John J. Sullivan
General Counsel
U.S. Department of Commerce

Hon. Daniel E. Troy
Partner, Sidley Austin LLP, Washington, DC
former Chief Counsel, Food and Drug Administration
U.S. Department of Health and Human Services

Moderator:

Michael Herz, Professor, Cardozo Law School, Yeshiva University, New York, NY

The American Bar Association opposes the creation of an Article I Social Security Court. This program will examine the well-known arguments for and against a proposed Article I social security court from the perspective of the form or structure of the court. This focus is new and moves the discussion from the theoretical to a realistic consideration of whether the form of the court supports the arguments for, or against, the court. For an initial frame of reference, speakers will be provided with the proposed structure advanced by ALJ Robin Arzt, with the clear understanding that this proposal is just the starting point for the discussion, and that the program does not have any position on the utility or desirability of a social security court, or this or any other format for the court. The diverse positions of the commentators on the proposal, or on the concept of a social security court itself, will provide a spirited discussion and develop new perspectives on the problem. Since the Administration is examining and implementing new ways of addressing the adjudication of social security claims, and the SSAB is on record in favor of a social security court, the program will assist administrative law practitioners as well as ALJs and government officials in considering, evaluating and responding to any formal proposal for a social security court that may be made.

Panelists:

Paul Verkuil, Professor, Cardozo School of Law, Yeshiva University, New York, NY

Hon. Robin Arzt, Administrative Law Judge, Social Security Administration, New York, NY*

Rudolph Patterson, Partner, Westmoreland, Patterson, Moseley & Hinson, LLP, Macon, GA

Hon . Jodi Levine, Administrative Law Judge, Social Security Administration, Oklahoma City, OK*

Robert Rains, Professor and Director, Disability Law Clinic, Dickinson School of Law, Pennsylvania State University, Carlisle, PA

Nancy Shor, Executive Director, National Organization of Social Security Claimants Representatives, Englewood Cliffs, NJ

Moderator:

James F. Flanagan, Professor, University of South Carolina School of Law, Columbia, SC

* The position as an Administrative Law Judge with the Social Security Administration is stated for identification purposes only. Individuals are appearing in an individual, personal capacity. No official support or endorsement by the Social Security Administration or the United States is or should be inferred. The views expressed by the Judges are theirs and do not necessarily represent the views of the Social Security Administration or the United States.