Saturday, April 8, 2017
Pepperdine School of Law
Malibu, California

The United States Supreme Court has long been criticized for injecting politics into its decision-making.  Yet the recent events have cast this criticism into even starker relief.

But has the confirmation process become so dysfunctional and contentious because the Court itself has become unduly political?  Or has the Court become unduly political because of external political pressures?  Or has the Court remained faithful to the rule of law while political tempests attempt to threaten its independence as an institution of laws?  And if, for whatever reason, the Court has become unduly political, what reforms might best address this problem?  At this symposium, renowned legal scholars and past and present judges will explore these questions, which remain critical to maintaining a proper separation of powers in our constitutional system.

We hope you can join us for this important and exciting debate, either in person or via livestream!

Our Lead Presenters

Akhil Reed Amar

Akhil Reed Amar is the Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law in both Yale College and Yale Law School. After graduating from Yale College, summa cum laude, in 1980 and from Yale Law School in 1984, and clerking for then Judge (now Justice) Stephen Breyer, Amar joined the Yale faculty in 1985 at the age of 26.  His work has won awards from both the American Bar Association and the Federalist Society, and he has been favorably cited by Supreme Court justices across the spectrum in more than 30 cases—tops in his generation. He has regularly testified before Congress at the invitation of both parties; and in various comprehensive surveys of judicial citations and/or scholarly citations, he invariably ranks among America’s five most-cited legal scholars under age 60. He is a member of the American Academy of Arts and Sciences and in 2008 he received the DeVane Medal—Yale’s highest award for teaching excellence.

 

Erwin Chemerinsky

Erwin Chemerinsky is the founding dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at University of California, Irvine School of Law, with a joint appointment in political science. Prior to assuming this position in 2008, he was the Alston and Bird Professor of Law and Political Science at Duke University (2004-2008), and before that was a professor at the University of Southern California Law School (1983-2004), including as the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science. He also has taught at DePaul College of Law and UCLA Law School. He is the author of 10 books, including The Case Against the Supreme Court, published by Viking in 2014, and two books to be published by Yale University Press in 2017, Closing the Courthouse Doors: How Your Constitutional Rights Became Unenforceable and Free Speech on Campus (with Howard Gillman). He also is the author of more than 200 law review articles.

 

Michael McConnell

Michael W. McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. From 2002 to the summer of 2009, he served as a circuit judge on the US Court of Appeals for the Tenth Circuit. McConnell has held chaired professorships at the University of Chicago and the University of Utah, and visiting professorships at Harvard and NYU. He has published widely in the fields of constitutional law and theory, especially church and state, equal protection, and the founding. In the past decade, his work has been cited in opinions of the US Supreme Court second most often of any legal scholar. He is coeditor of three books: Religion and the Law, Christian Perspectives on Legal Thought, and The Constitution of the United States. McConnell has argued 15 cases in the Supreme Court. He served as law clerk to Justice William J. Brennan, Jr., of the Supreme Court, and is of counsel to the appellate practice of Kirkland & Ellis.

 

Richard Posner

Richard Posner is a judge of the US Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School. After graduating from Yale College and Harvard Law School, he clerked for Justice Brennan of the US Supreme Court (1962 Term), and then had several government jobs, including assistant to the Solicitor General of the United States. He began teaching law at Stanford in 1968 and the following year joined the University of Chicago Law School faculty as professor of law, in which position he served until being appointed to the Seventh Circuit in 1981. He was chief judge of the court from 1993 to 2000. He has written many books and articles, of which the best known deal with either the application of economics to law or the deficiencies of the judiciary.

 

Deanell R. Tacha

Deanell R. Tacha, Duane and Kelly Roberts Dean and Professor of Law, Pepperdine School of Law is a graduate of University of Kansas, BA, and the University of Michigan School of Law, JD She has been a circuit Judge since 1986 and served as chief judge (2001-2007) in the US Court of Appeals for the Tenth Circuit. Tacha has been active in the American Inns of Court movement as a spokesperson for enhanced ethics, professionalism, and civility in the legal profession, and served as president for the National Board of Trustees of the American Inns of Court (2004-2008). She was named recipient of the Devitt Award in 2007 and the John Marshall Award in 2008.  In 2012 she was honored by the American Inns of Court with the A. Sherman Christensen Award.

 

Mark Tushnet

BIO: Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School.  He received his undergraduate degree magna cum laude from Harvard College in 1967.  He received a JD and MA in history from Yale University in 1971.  He clerked for Judge George Edwards and Justice Thurgood Marshall before beginning to teach at the University of Wisconsin Law School in 1973.  In 1981 he moved to the Georgetown University Law Center, and in 2006 to Harvard Law School.  He has been a visiting professor at the University of Texas, University of Southern California, University of Chicago, Columbia University, New York University, and Harvard law schools. Tushnet is the coauthor of four casebooks, including the most widely used casebook on constitutional law, Constitutional Law (with Stone, Seidman, and Sunstein).  He has written more than a dozen books, including a two-volume work on the life of Justice Thurgood Marshall, A Court Divided:  The Rehnquist Court and the Future of Constitutional Law, Weak Courts, Strong Rights:  Judicial Review and Social Welfare Rights in Comparative Constitutional Law, and Why the Constitution Matters, and edited eight others.

 

Our Panel Speakers

Ian Bartrum

Ian Bartrum teaches the courses Constitutional Law, Constitutional Theory, Jurisprudence, and Law and Religion at the William S. Boyd School of Law at University of Nevada, Las Vegas.  His research interests are in constitutional history and theory, the Establishment Clause, and analytical jurisprudence. He is a graduate of Hamilton College, Vermont Law School, and Yale Law School.

 

Ariel L. Bendor

Ariel L. Bendor, who specializes in constitutional and administrative law, is dean of the School of Graduate Studies and Frank Church Professor of Legal Research at Bar-Ilan University. He is the author of three books and dozens of articles, which have been published in American, Israeli and international law journals and books.

 

Rebecca L. Brown

Rebecca L. Brown holds the Rader Family Trustee Chair in Law at the USC Gould School of Law.  She served as a law clerk for Justice Thurgood Marshall of the US Supreme Court and as an attorney advisor in the Office of Legal Counsel of the US Department of Justice, before entering law teaching at Vanderbilt Law School.  She moved to USC in 2008, where she teaches and writes in the areas of constitutional law and theory.

 

Christopher Bryant

Christopher Bryant is the Rufus King Professor of Constitutional Law at the University of Cincinnati College of Law. Since joining the College of Law faculty in 2003, Bryant has been a prolific scholar and an exceptionally skilled and award-winning teacher of constitutional law.  His numerous published articles and essays reach a wide range of issues of contemporary constitutional importance, including the separation of powers, judicial review, and the roles of the various branches of the national government in constitutional interpretation.  He is a recognized expert on the scope and exercise of national legislative power and the respect that Congressional action is owed from the federal judiciary.

 

Jennifer M. Chacón

Jennifer M. Chacón holds a JD from Yale Law School (1998) and an AB in international relations from Stanford University (1994) and is currently a professor of law in the School of Law at the University of California, Irvine, where she is also the former senior associate dean of academic affairs. She is the author of more than 50 law review articles, book chapters, expert commentaries, and shorter articles and essays discussing immigration, criminal law, constitutional law, and citizenship issues.

 

Stephen M. Feldman

Stephen M. Feldman is the Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and adjunct professor of political Science at the University of Wyoming. He was a visiting scholar at Harvard Law School during the Fall 2016 semester. His next book will be The New Roberts Court, Donald Trump, and Our Failing Constitution (Palgrave Macmillan, forthcoming).

 

Paul Finkelman

Paul Finkelman is currently the John E. Murray Visiting Professor at the University of Pittsburgh School of Law.  He is the author of more than 200 scholarly articles and more than 40 books. His next book, Supreme Injustice:  Slavery in America’s Highest Court, will be published by Harvard University Press in 2017.  He is a specialist in American legal history, US Constitutional law, race and the law, the law of American slavery, the First Amendment, religious liberty, the history of the Second Amendment, African American history, the American Civil War, and legal issues surrounding American sports.

 

Richard D. Friedman

Richard D. Friedman, the Alene and Allan F. Smith Professor of Law at the University of Michigan Law School, is an expert on evidence and US Supreme Court history. He is also one of a few scholars developing a new field, examining sports and games as legal systems. Friedman is the general editor of The New Wigmore, a multi-volume treatise on evidence. His textbook, The Elements of Evidence, is now in its fourth edition and he is coauthor of Park and Friedman’s Evidence: Cases and Materials, now in its 12th edition.

 


Warren Grimes

Warren Grimes is associate dean for research and the Irving D. & Florence Rosenberg Professor of Law at Southwestern Law School. He has been a tenured professor since 1992. His former positions include chief counsel on the Subcommittee on Monopolies and Commercial Law, Committee on the Judiciary, US House of Representatives, and assistant to the General Counsel and Senior Litigation Attorney for the Federal Trade Commission in Washington, DC.

 

Simona Grossi

Simona Grossi is Theodore A. Bruinsma Fellow and Professor of Law at Loyola Law School. She graduated from L.U.I.S.S. University, Rome, Italy in 2002. She completed her master of laws (LLM) and doctoral program (JSD) at the UC Berkeley, School of Law. She worked for the UN from 2000 to 2002 and then went into private practice and worked for Clifford Chance LLP and Bonelli Erede Pappalardo doing national and transnational litigation from 2002 to 2008. She worked for Judge Charles Breyer at the US District Court for the Northern District of California in 2010. Her scholarship focuses on civil procedure, federal courts, judicial decisionmaking, and legislative reform.

 

Craig Jackson

Craig Jackson is a professor of law at the Thurgood Marshall School of Law at Texas Southern University in Houston, Texas, where he teaches the courses Constitutional Law, Civil Procedure, International Law, and Appellate Litigation. He is a graduate of Rice University and the University of Texas School of Law and completed his academic studies in international relations from the Johns Hopkins University School of Advanced International Studies. Jackson’s research interests are in constitutional law, foreign policy and the US Constitution, and international law.

 

Anthony Johnstone

Anthony Johnstone is an associate professor at the University of Montana School of Law. He teaches and writes about federal and state constitutional law, election law, legislation, and related subjects. Johnstone has published more than a dozen articles in journals including the Yale Law and Policy Review, the Harvard Journal of Law and Public Policy, the Election Law Journal, and the Journal of Appellate Process and Practice. He holds a BA from Yale University and a JD with honors from the University of Chicago Law School.

 

Joshua Kastenberg

Joshua Kastenberg is the Lee & Leon Karelitz Professor in Evidence and Procedure at the University of New Mexico School of Law. Prior to joining the UNM Law School faculty, he had a 20-year career as a lawyer and judge in the US Air Force. He served as an advisor to the Department of Defense on cyber security and cyber warfare matters, twice deployed to Iraq and oversaw the military’s compliance with international law. Kastenberg served as a prosecutor and defense counsel in over 200 trials and as a judge in over 200 trials. His interests are in the field of criminal law and procedure, evidence, legal history, and judicial ethics.

 

Bruce Ledewitz

Bruce Ledewitz is a professor of law at Duquesne University School of Law, where he founded the Allegheny County Death Penalty Project in 1981. He is the author of American Religious Democracy (2007), Hallowed Secularism (2009), and Church, State, and the Crisis in American Secularism (2011), as well as numerous articles and popular publications, and the blog, Hallowed Secularism.  Ledewitz received his undergraduate degree from Georgetown University School of Foreign Service and his JD from Yale Law School.

 

Jason Mazzone

Jason Mazzone is a professor of law and the Lynn H. Murray Faculty Scholar at the University of Illinois at Urbana-Champaign, where he is also the codirector of the Program in Constitutional Theory, History, and Law. Mazzone’s primary field of research and teaching is constitutional law and history. He works principally on issues of constitutional structure and institutional design with a particular focus on relationships between structural arrangements and individual rights. He received his undergraduate and law degrees from Harvard University, a master’s degree from Stanford University, and a master’s degree and doctorate from Yale University.

 

David Orentlicher

David Orentlicher is the Samuel R. Rosen Professor of Law and codirector of the William S. and Christine S. Hall Center for Law and Health at Indiana University School of Law.  He is an expert in constitutional law and health law. Orentlicher graduated from Harvard Law School and Harvard Medical School. He is the author of Matters of Life and Death and coauthor of Health Care Law and Ethics. His most recent book, Two Presidents Are Better Than One: The Case for a Bipartisan Executive draws on his experience as a former state representative from 2002 to 2008. He joins the faculty at UNLV William S. Boyd School of Law this fall.

 

Robert Pushaw

Robert Pushaw is the James Wilson Endowed Professor of Law at the Pepperdine School of Law. In law school, he served as the notes editor of the Yale Law Journal and received an Olin Foundation Fellowship. After graduation, he clerked for Judge James Buckley of the US Court of Appeals for the DC Circuit, then worked as an employment lawyer for Davis Wright Tremaine in Seattle, Washington. Joining the University of Missouri School of Law faculty in 1992, Pushaw taught the courses Constitutional Law, Federal Courts, Contracts, and Estates and Trusts. In 1998 he won the Blackwell Sanders Distinguished Faculty Achievement Award as the law school’s top teacher. In 2000 Pushaw received the William Kemper Fellowship for Teaching Excellence, the University of Missouri’s highest teaching honor.

 

Eric Segall

Eric Segall is the Kathy and Lawrence Ashe Professor of Law at the Georgia State University College of Law. He is the author of the book Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges, and is working on the forthcoming book Originalism as Faith for Cambridge University Press. His articles on constitutional law have appeared in, among others, the Harvard, Stanford, Northwestern University, Washington University, and Cornell Law Reviews.

 

Joshua Segev

Joshua Segev is an associate professor of constitutional law and philosophy of law at the Netanya Academic College School of Law and a visiting professor at the Herzog Faculty of Law Bar-Ilan University. Segev’s research focuses on theories of judicial review and the role of the judge in the Anglo-American tradition and has published dozens of articles in Israeli and American law reviews. Segev was editor-in-chief of the Netanya Academic College Law Review, and the editor of the Tel-Aviv University Law Review.

 

Rick Tepker

Rick Tepker is the Floyd and Irma Calvert Chair in Law and Liberty Professor of Law at the University of Oklahoma (OU) College of Law. He is the first member of the OU law faculty to appear, argue and win a case before the US Supreme Court. Tepker is author of many law review articles and has earned numerous university teaching awards. He teaches courses in the areas of constitutional law, employment law and equal employment opportunity.

 

Minimum Continuing Legal Education:

This symposium has been approved for Minimum Continuing Legal Education (MCLE) credit by the State Bar of California for 6.25 credit hours.  Pepperdine University School of Law certifies that this activity conforms to the standard for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

A special thank you to our faculty cosponsor Barry McDonald!

 

Our Tentative Schedule

Live Stream

8:00 AM – Breakfast and Registration

8:30 AM – Welcome Remarks

8:45 AM – Opening Address by Professor Michael McConnell, followed by Q & A

9:30 AM – Break

9:45 AM – Hon. Richard Posner panel presentation (by videoconference) with respondents Jennifer Chacon and Dean Deanell Tacha, followed by Q & A

10:45 AM – Break

11:00 AM – Professor Mark Tushnet panel presentation with respondents Robert Pushaw and Paul Finkelman, followed by Q & A

12:00 PM – Lunch with Luncheon Address by Dean Erwin Chemerinsky, followed by Q & A

1:45 PM – Professor Akhil Amar panel presentation with respondents Rebecca Brown and Ambassador Douglas Kmiec, followed by Q & A

2:45 PM – Afternoon Break

3:15 PM – Panel Break-Out Sessions

    • Supreme Court Politicization – Historical Development: Paul Finkelman, Josh Kastenberg, and Rick Tepker
    • Supreme Court Politicization – Is the Court Unduly Political?: Stephen Feldman, Warren Grimes, and Bruce Ledewitz
    • Supreme Court Reform – Restructuring the Court’s Decision-Making Authority: Ian Bartrum, Aaron Bryant, and Jason Mazzone
    • Supreme Court Reform – Modifying the Court’s Decision-Making Methods: Ariel Bendor, Simona Grossi, Anthony Johnstone, and Joshua Segev
    • Supreme Court Reform – Restructuring the Court and/or Appointments Process: Richard Friedman, Craig Jackson, David Orentlicher, and Eric Segall

4:30 PM – Closing Remarks

The Pepperdine Law Review

 

Founded in 1972, the Pepperdine Law Review is a scholarly law journal published by second- and third-year law students at the Pepperdine University School of Law.  In its 44 years, it has been a resource for practitioners, law professors, and judges alike. Articles published in the review are routinely referenced in court opinions, including those penned by the Supreme Court of the United States.

Membership is recognized as both an honor and a unique educational experience. Offers are extended to the top 10 percent of the first-year class, conditioned upon successful completion of an editing assignment that tests grammar and citation skill. Additional offers are awarded to the best entries in Pepperdine’s annual write-on competition. Pepperdine Law Review staff edit articles written by professors, lawyers, judges, legislators, and other scholars. They also produce their own comments or notes on legal developments and significant cases. Each year, the review publishes the best of each in five issues. It also produces an annual volume, comprising essays, book reviews, and other legal correspondence.

If you are interested in receiving each issue of the Pepperdine Law Review in print, please follow the instructions on the “subscriptions” link above or contact Tess Douglas at tess.douglas@pepperdine.edu.

 

Volume 44 Law Review Editorial Board

 

Editor-in-Chief

Helen Andrews

Managing Editor

Emily Speier

Production Editor

Tess Douglas

Symposium Editor

Alice Anderson

Essays, Reviews, & Digital Media Editor

Derek O’Reilly-Jones