Administrative Law Conference December 8 - 9, 2016

Walter E. Washington Convention Center Washington, DC

Platinum Sponsor

Gold Sponsors

Program Chairs: Andrew Emery | Susan Prosnitz Section Chair: Renée M. Landers

12.5 HOURS OF PROFESSIONAL PRACTICE CLE CREDIT REQUESTED

INCLUDING 1.5 HOURS OF ETHICS CREDIT

THURSDAY, DECEMBER 8, 2016

TIME SESSION BALLROOM

7:30 am—9:00 am Registration & CLE Sign-In, Refreshment Breaks Pre-function Salon AB

9:00 am—10:30 am Breakout Session I

Beyond OIRA: Working with OMB on Budget, Management, and Everything Else

Salon AB

The Past and Future of Judicial Deference: A Scholarly Examination

Salon C

Administrative Law in China: Recent Developments and Implications for Chinese Law & Governance

Salon GHI

10:30 am—10:45 am Break

10:45 am—12:15 pm Breakout Session II

The Future of the Cost-Benefit State Salon AB

Evolving Justiciability: Discretionary Standing and Practical Finality?

Salon C

Mind the Gap: Bridging the Regulatory Divide in a Digital World Salon GHI

12:15 pm—1:15 pm Lunch & Awards Presentation

1:15 pm—2:45 pm Breakout Session III

Legal, Policy and Political Challenges in the Presidential Transition Salon AB

New Concerns About Rulemaking Capture: Are They Valid and If So What Can Be Done?

Salon C

Has International Investor Arbitration Become Another Forum for Review of Administrative Agency Action?

Salon GHI

2:45 pm—3:00 pm Break

3:00 pm—4:30 pm Breakout Session IV

Diversity and Inclusion in Federal Agencies Salon AB

Your Agency Is Not That Special: The Decline of Administrative Law Exceptionalism

Salon C

Rethinking Administrative Adjudication Salon GHI

FRIDAY, DECEMBER 9, 2016

TIME SESSION BALLROOM

7:30am—8:50 am Registration & CLE Sign-In, Refreshment Breaks Pre-Function Salon AB

8:50 am—9:00 am Welcome from Section Chair & Sponsor Recognition Salon GHI

9:00 am—10:45 am Developments in Administrative Law, Part I Salon GHI

10:45 am—11:00 am Break

11:00 am—12:45 pm Developments in Administrative Law, Part II Salon GHI

12:45 pm—1:15 pm Lunch Break

1:15 pm—2:45 pm Breakout Session V

A Legal Primer on Public-Private Partnerships Salon AB

Does State Securities Regulation Matter Anymore? How Federal Securities Regulation Continues to Encroach on the States

Salon C

Ethics CLE Credit Ethical Red Flags for Public Lawyers Salon GHI

2:45 pm—3:00 pm Break

3:00 pm—4:30 pm Breakout Session VI

Top 10 Agenda Items for President Clintrump's FDA: Whoever Wins has a Full Plate!

Salon AB

From Deference to Constitutional Scrutiny: The Continuum of Judicial Review in the Realm of Administrative Law

Salon C

General CLE Credit Ethics and Professional Responsibility in a Presidential Transition Salon GHI

4:30 pm Conference Adjourns

Schedule at a Glance

Andrew Emery, Program Chair; President, The Regulatory Group, Inc., Arlington, VA Susan Prosnitz, Program Chair; Deputy Chief Counsel, Regulations and Security Standards, Transportation Security Administration (TSA), Arlington, VA Renée M. Landers, Section Chair, Professor of Law and Director Health Law Concentration, Suffolk Law School, Boston, MA Carlos F. Acosta, Inspector General Prince George's County Police Department, Palmer Park, MD David J. Apol, General Counsel, U.S. Office of Government Ethics, Washington, DC Alissa Ardito, Attorney-Advisor, Administrative Conference of the United States (ACUS), Washington, DC Edgar Asebey, Partner, Jones Day, Miami, FL Aditya Bamzai, Assistant Professor of Law, University of Virginia Law School, Charlottesville, VA Kent Barnett, Assistant Professor of Law, University of Georgia Law School, Athens, GA Jack Beermann, Professor of Law, Boston University School of Law, Boston, MA Michael Bopp, Partner, Gibson, Dunn & Crutcher, LLP, Washington, DC Reeve Bull, Research Chief, Administrative Conference of the United States (ACUS), Washington, DC Ronald A. Cass, Dean Emeritus, Boston University School of Law; President, Cass & Associates, PC; Council, Administrative Conference of the United States (ACUS), Great Falls, VA Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science, University of Pennsylvania Law School; Director, Penn Program on Regulation, Philadelphia, PA Ted Dean, Acting Assistant Secretary for Industry and Analysis, International Trade Administration, Washington, DC

PROGRAM FACULTY

Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University, Washington, DC Tyler Duvall, Partner, McKinsey & Co., Washington, DC David Eagles. Director, Center for Presidential Transition, Partnership for Public Service, Washington, DC Heather Elliott, Professor of Law, University of Alabama School of Law, Tuscaloosa, AL Timothy R. Epp, Assistant General Counsel, International Environmental Law, Office of General Counsel, U.S. Environmental Protection Agency (EPA), Washington, DC Jill Family, Commonwealth Professor of Law and Government; Director, Law and Government Institute, Widener University Commonwealth Law School, Harrisburg, PA Michael Fitzpatrick, Head of Regulatory Advocacy, Global Law & Policy, General Electric, Washington, DC Mark Freeman, Civil Division, Appellate Staff, U.S. Department of Justice (DOJ), Washington, DC William Funk, Lewis & Clark Distinguished Professor of Law, Lewis & Clark Law School, Portland, OR James Gerkis, Partner, Proskauer Rose LLP, New York, NY James Goodwin, Senior Policy Analyst, Center for Progressive Reform, Washington, DC Robert Gordon, Senior Vice President, Finance and Strategy, The College Board, Reston, VA Jamie Gorelick, Partner, Wilmer Cutler Pickering Hale and Dorr, Washington, DC R. Juge Gregg, Trial Attorney, Environment and Natural Resources Division, U.S. Department of Justice, Washington, DC He Haibo, Professor, Tsinghua University School of Law; Beijing, China Visiting Scholar, Program on East Asian Legal Studies, Harvard Law School

Emily Hammond, Professor of Law, George Washington University Law School, Washington, DC Sean Heather, Vice President, Center for Global Regulatory Cooperation, U.S. Chamber of Commerce, Washington, DC Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center, Washington, DC Mark Heuerman, Registration Chief Cousel, Division of Securities, Ohio Department of Commerce, Columbus, OH Kristin Hickman, Distinguished McKnight University Professor; Harlan Albert Rogers Professor of Law; and Associate Director, Corporate Institute, University of Minnesota Law School, Minneapolis, MN Jamie Horsley, Visiting Fellow, John L. Thornton China Center, Brookings Institution; Senior Fellow, Paul Tsai China Center, Yale Law School, New Haven, CT Linda Jellum, Visiting Professor of Law, Tulane Law School; Ellison Capers Palmer Sr. Professor of Law, Mercer University School of Law, Macon, GA William Jordan, C. Blake McDowell Professor of Law, University of Akron School of Law, Akron, OH Dr. Martha Joynt Kumar, Director, White House Transition Project, Washington, DC Judy Kaleta, Deputy General Counsel, Office of the General Counsel, U.S. Department of Transportation (DOT), Washington, DC Roberta S. Karmel, Centennial Professor of Law, Brooklyn Law School, New York, NY Kristine Kassekert, Professorial Lecturer in Law, The George Washington University Law School; Associate Counsel for Marine Corps Systems Command, Quantico, VA Jeffrey Lubbers, Professor of Practice in Administrative Law, American University, Washington College of Law, Washington, DC Katie Jo Luningham, Attorney, Husch & Blackwell LLP, Kansas City, MO

Neysun Mahboubi, Research Scholar, Center for the Study of Contemporary China, University of Pennsylvania, Philadelphia, PA Gwenann Manseau, Senior Counsel, Office of the Chief Counsel for International Commerce, U.S. Department of Commerce, Washington, DC Carmel Martin, Executive Vice President, Center for American Progress, Washington, DC Jonathan Masur, John P. Wilson Professor of Law, David and Celia Hilliard Research Scholar, and Director of the Wachtell, Lipton, Rosen & Katz Program in Behavioral Law, Finance and Economics, University of Chicago Law School, Chicago, IL

Doug McNitt, Vice President, Deputy General Counsel, Cisco, Fulton, MD Richard H. Melnick, Associate County Attorney, Office of the Montgomery County Attorney, Rockville, MD Andrea Menaker, Partner, White & Case LLP, Washington, DC Richard Murphy, AT&T Professor of Law, Texas Tech University, Lubbock, TX Erlyne Nazaire, Senior Legal Editor, Practical Law, Thomson Reuters, New York, NY Aaron Nielson, Associate Professor of Law, Brigham Young University Law School, Provo, UT Lars Noah, Professor of Law, University of Florida Levin College of Law, Gainesville, FL Paul Noe, Vice President, Public Policy, American Forest & Paper Association; Co-Chair, Legislation Committee; former Counselor to the OIRA Administrator, Washington, DC Andrew S. Oldham, Deputy General Counsel to Governor Greg Abbott, Austin, TX James O’Reilly, University of Cincinnati College of Law; Retired Associate General Counsel, Procter & Gamble, Cincinnati, OH

PROGRAM FACULTY

Dr. Marcos A Orellana. Director, Human Rights & Environment Program Center for International Environmental Law (CIEL); Adjunct Professor, George Washington University School of Law, Washington, DC Sharon E. Pandak, Partner, Greehan Taves Pandak & Stoner PLLC, Woodbridge, VA Eloise Pasachoff, Professor of Law, Georgetown University Law Center, Washington, DC Marcus Peacock, Distinguished Research Professor, The George Washington University Regulatory Studies Center, Washington, DC Matthew Porterfield, Deputy Director and Adjunct Professor, Georgetown University Law Center, Harrison Institute for Public Law, Washington, DC Amanda Postiglione, Senior Attorney, Government Accountability Office, Washington, DC Jacquelyn Puente, Executive Director, External Affairs, Comcast Corporation, Washington, DC David Rostker, Assistant Chief Counsel, Office of Advocacy, U.S. Small Business Administration (SBA), Washington, DC Melanie Senter Lubin, Securities Commissioner, Division of Securities, State of Maryland, Baltimore, MD Sidney A. Shapiro, Fletcher Chair in Administrative Law, Wake Forest University; Vice-President, Center for Progressive Reform (CPR), Winston-Salem, NC Anna Shavers, Cline Williams Professor of Citizenship Law, Nebraska College of Law, Lincoln, NE Ethan Shenkman, Deputy General Counsel. Office of General Counsel, U.S. Environmental Protection Agency (EPA), Washington, DC Jonathan Siegel, F. Elwood and Eleanor Davis Research Professor of Law, George Washington University Law School, Washington, DC Lisa Sotto, Partner, Hunton & Williams LLP, New York, NY

Rogers Stevens, Associate, Ballard Spahr, Philadelphia, PA Katharine Van Tassel, Professor of Law (Retired), Creighton University School of Law, Annapolis, MD Ruth M.S. Vetter, Director, Department of Defense, Standards of Conduct Office Washington, DC Wendy Vicente, Senior Counsel, Office of the Chief Counsel, Food and Drug Administration, U.S. Department of Health and Human Services (HHS), Silver Spring, MD Christopher Walker, Associate Professor of Law, The Ohio State University Moritz College of Law, Columbus, OH Melissa Wasserman, Professor of Law, The University of Texas at Austin Law School, Austin, TX Valerie Wenderoth, Attorney-Advisor, U.S. Department of State (DOS), Washington, DC Adam White, Research Fellow, Hoover Institution; Adjunct Professor of Law, Antonin Scalia Law School, Washington, DC Matthew Lee Wiener, Executive Director, Administrative Conference of the United States (ACUS), Washington, DC Hon. Erin Wirth, Past President, Federal Administrative Law Judges Conference; Administrative Law Judge, Federal Maritime Commission, Washington, DC Steve Wolfson, Office of General Counsel, Cross-Cutting Issues Law Office, U.S. Environmental Protection Agency (EPA), Washington, DC Andrew Wright, Professor of Law, Savannah Law School, Savannah, GA Frank Zarb, Partner, Proskauer Rose LLP, Washington, DC

Program Agenda

Thursday ● December 8, 2016

7:30 am—9:00 am Registration & CLE Sign-In, Refreshment Breaks

9:00 am—10:30 am Beyond OIRA: Working with OMB on Budget, Management, and Everything Else Breakout Session I Eloise Pasachoff (Moderator) Michael Bopp, Tyler Duvall, Robert Gordon, Carmel Martin Salon AB The Office of Information and Regulatory Affairs (OIRA) gets a lot of attention from lawyers working in and around agencies, as well as in administrative law scholarship. But OIRA is a comparatively small office within the rest of the Office of Management and Budget (OMB), and the rest of OMB affects agency work in a wide variety of mission-critical ways. This panel will bring together former OMB and agency officials from the Obama and George W. Bush administrations to discuss the following questions: How do OMB budget and management officials see their role working with agencies? How do agency leaders see their role working with OMB budget and management officials? How does OMB’s budget and management work affect what agency lawyers do? How can lawyers working outside the federal government leverage OMB’s budget and management work on behalf of their clients? And is any of this good for democracy?

9:00 am—10:30 am The Past and Future of Judicial Deference: A Scholarly Examination

Breakout Session I (Co-Sponsored by Notice & Comment)

Emily Hammond (Moderator)

Aditya Bamzai, Kent Barnett, Lisa Heinzerling, Aaron Nielson

Salon C It is no secret that the Supreme Court in recent years has increasingly focused on the nature and scope of deference. This panel will explore the latest scholarship on these issues, with a focus on the lost history of deference to the Executive Branch, a new empirical examination of how deference is applied in courts throughout the United States, and the potential future of Chevron and Seminole Rock deference. Notice & Comment is a Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice. It is found at yalejreg.com/nc

9:00 am—10:30 am Administrative Law in China: Recent Developments and Implications for Breakout Session I Chinese Law & Governance Jeffrey Lubbers (Moderator) He Haibo, Jamie Horsley, Neysun Mahboubi, Gwenann Manseau, Steve Wolfson Salon GHI By some measures, administrative law reform in China has appeared to gain momentum in recent years, promising greater regularization and accountability of administrative decisionmaking throughout the Chinese government. Advances include legislation on opening up administrative decisionmaking (including APA-type rules in some provinces), expanded FOIA-like access to government information, and strengthening the legal framework for litigation against the government. However, this progress has occurred in an overall political and legal environment that seems to challenge the development of a truly robust “rule of law” in China, with escalating repression of “rights defense” (weiquan) lawyers and other human rights activists, tightening oversight of NGOs, and increased limits on free speech, among other setbacks. This panel will highlight recent developments in Chinese administrative law -- from government, civil society, and academic perspectives -- and seek to evaluate their real-world significance in China’s larger political and legal context.

10:30 am—10:45 am Break

Program Agenda

Thursday ● December 8, 2016

10:45 am—12:15 pm The Future of the Cost-Benefit State Breakout Session II Paul Noe (Moderator) Michael Fitzpatrick, Jonathan Masur Salon AB The next President or Congress may have a significant opportunity to dramatically advance the use of benefit-cost analysis in regulatory decision making. This panel will take stock of the state of play on this issue, predict what the future may hold, and offer varying perspectives on the uses and limitations of benefit-cost analysis.

10:45 am—12:15 pm Evolving Justiciability: Discretionary Standing and Practical Finality? Breakout Session II Adam White (Moderator) Heather Elliott, William Funk, Katie Jo Luningham, Andrew S. Oldham Salon C One might think that, after centuries of trying, American administrative law would have figured out justiciability, but it hasn't. Two of the most notorious problems of justiciability doctrine are determining the sufficiency of injuries for constitutional standing and determining whether agency action carries the legal consequences needed for finality. Panelists including leading academics, a private practitioner, and a deputy general counsel to the governor of Texas will shed new light on them. On a forest level, the panel will address the Supreme Court's evolving approaches to these problems in its most recent pronouncements on them in Spokeo and Hawkes. Turning to particular trees, the panel will examine the evolving treatment of standing for states and finality of guidance documents. All of this discussion, of course, must be informed by the passing of Justice Scalia, who, during his thirty years on the Court, did more than any other single person to shape modern administrative law. Justice Scalia famously aspired for judge-made law to take the form of the law of rules, and this impulse can be seen in his work on justiciability in leading cases such as Lujan v. Defenders of Wildlife and Bennett v. Spear. These facts naturally suggest the possibility that the Court, in its new configuration, might be amenable to a more frankly discretionary approach to justiciability issues. The panel will examine whether Spokeo and Hawkes are evidence that such a shift is already occurring. Any attorney who must apply constitutional standing or finality doctrines in marginal, difficult cases should benefit from discussion of these issues by the expert panelists.

10:45 am—12:15 pm Mind the Gap: Bridging the Regulatory Divide in a Digital World Breakout Session II Sean Heather (Moderator) Ted Dean, Doug McNitt, Lisa Sotto Salon GHI The flow of information, products, and services across borders is critical for businesses to realize the full benefits of the global digital economy. Unnecessary regulatory differences between nations make it challenging and expensive for companies to navigate global markets, both in the digital space as well as in the delivery of physical goods ordered through e-commerce platforms. One way the United States has sought to help bridge regulatory differences in the data privacy space is through the development of the EU-US Privacy Shield to replace the Safe Harbour Agreement and the APEC Cross Border Privacy Rules System, which are self-certification programs developed to provide companies with a mechanism to demonstrate compliance with legal requirements across markets with different privacy regimes. The panel will explore these and other recent developments in the regulation of data flows as well as issues to watch (e.g., development of the Digital Single Market) in 2017.

12:15 pm—1:15 pm Lunch & Awards Presentation Section Chair Renée Landers Award for Scholarship in Adminstrative Law Gillian Metzger, Stanley H. Fuld Professor of Law, Columbia Law School “The Constitutional Duty to Supervise, 124 Yale Law Journal 1836 (2015)” Gellhorn-Sargentich Law Student Essay Award Gugandeep Kaur, Boston University School of Law “Indian Pharmaceutical Industry’s Compliance Problems with the United States Food and Drug Administration and Proposed Solutions”

Program Agenda

Thursday ● December 8, 2016

1:15 pm—2:45 pm Legal, Policy and Political Challenges in the Presidential Transition Breakout Session III Jack Beermann (Moderator) David Eagles, Jamie Gorelick, Marcus Peacock, Andrew Wright Salon AB Presidential transitions are big, complicated and dangerous, and when managed strategically, they also represent one of the best opportunities to make government more effective. The speakers will share their experiences on the opportunities and challenges, legal, political and policy, presented by presidential transitions. One issue that will be discussed is the documented phenomenon of Midnight Rulemaking. The current situation in this regard is under study by the Regulatory Studies Center and George Washington University, and the latest information and analysis on the phenomenon will be part of the panel’s discussion. Another issue that will be discussed is the mechanism of transitions and how successful planning can minimize disruption caused by the transition. Past transition teams and administrations have essentially had to start from scratch, but our next president must be ready to govern on day one to keep our country safe and prosperous. The Center for Presidential Transition is an effort to provide guidance and support to facilitate a successful transition, and we will hear exactly how the Center aims to accomplish its goals.

1:15 pm—2:45 pm New Concerns About Rulemaking Capture: Are They Valid and If So What Can Be Done? Breakout Session III Richard Murphy (Moderator) Alissa Ardito, Susan Dudley, James Goodwin, Sidney Shapiro Salon C Regulatory reformers in the 1960s –1970s were concerned to protect the new regulatory agencies being created from the regulatory capture they perceived had occurred at the older regulatory agencies in the 1950s. Regulatory capture is again being discussed prompted by warnings that there are new forms of capture. The Tobin Project funded a major academic study, published in 2014 as a Cambridge University Press book, and Senators Lee, Warren and Whitehouse and ACUS cosponsored a Senate workshop on capture in March 2016. The panel will discuss whether concerns about the old and new forms of capture are valid and what remedies are appropriate if capture exists.

1:15 pm—2:45 pm Has International Investor Arbitration Become Another Forum for Review of Administrative Breakout Session III Agency Action? Ethan Shenkman (Moderator) Timothy R. Epp (Organizer) Andrea Menaker, Dr. Marcos Orellana, Matthew Porterfield, Wendy Vicente Salon GHI Administrative agencies are increasingly finding their actions the subject of an international arbitration challenge filed under trade agreements. Recent claims have included challenges to: (a) an FDA warning letter and import alert issued based on regulatory violations (Apotex v. Canada) ; (b) an administrative decision to deny a permit to expand a port facility due to concerns regarding impacts on the local community and environment (Bilcon v. Canada); (c) regulatory actions prescribing packaging and labeling requirements for tobacco products (e.g., Philip Morris v. Uruguay) and (d) a denial of a permit application to construct an oil pipeline border crossing based on a national interest determination involving environmental concerns (TransCanada v. United States). This panel will examine current developments and debate, including arbitration awards discussing an international arbitrariness standard; the Panel will review common arguments and will consider the burdens placed on regulatory agencies to defend their actions and the extent to which regulatory discretion may be constrained.

2:45 pm—3:00 pm Break

Program Agenda

Thursday ● December 8, 2016

3:00 pm—4:30 pm Diversity and Inclusion in Federal Agencies Breakout Session IV Anna Shavers (Moderator) Jacquelyn Puente, Rogers Stevens Salon AB The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank Act") authorizes certain federal agencies to assess the "diversity policies and practices of the entities they regulate." On June 10, 2015, six federal agencies issued a joint policy statement establishing standards for assessing those policies and diversity practices. The agencies—the Federal Reserve Board, Consumer Financial Protection Bureau (CFPB), Federal Deposit Insurance Corporation (FDIC), National Credit Union Administration (NCUA), Office of the Comptroller of the Currency (OCC) and Securities and Exchange Commission (SEC). These guidelines will be examined for their compliance with the Dodd-Frank Act, but also to determine their relevance to other federal agencies.

3:00 pm—4:30 pm Your Agency Is Not That Special: The Decline of Administrative Law Exceptionalism Breakout Session IV Christopher Walker (Moderator) Jill Family, Mark Freeman, Kristin Hickman, Melissa Wasserman Salon C Administrative law exceptionalism—the misperception that a particular regulatory field is so different from the rest of the regulatory state that general administrative law principles do not apply—has plagued the modern regulatory state. We have seen it front in center in a variety of regulatory contexts from tax and financial regulation to patent law and immigration. This panel brings together the leading experts on administrative law exceptionalism from immigration, patent law, and tax—along with a senior attorney from the Justice Department’s Civil Appellate Staff who has briefed and argued many of these issues—to share their insights on the current state of administrative law exceptionalism. The panel will focus both on case studies in these regulatory areas as well as more broadly on the costs and benefits of administrative law exceptionalism.

3:00 pm—4:30 pm Rethinking Administrative Adjudication Breakout Session IV Matthew Lee Wiener (Moderator) Kent Barnett, Ronald A. Cass, Hon. Erin Wirth Salon GHI When should the adjudication of cases arising under federal regulatory programs be vested in administrative agencies and when in Article III federal courts? Does the answer depend in part on which agency officials preside over administrative adjudications—their relative independence, subject-matter expertise, etc.? On what other factors should it depend? Recent developments in administrative adjudication—most notably the spate of legal challenges to SEC administrative enforcement proceedings—have given new urgency to these and related questions. The panelists will explore them from varied perspectives.

Program Agenda

Thursday ● December 8, 2016

9:00 am—10:45 am Developments in Administrative Law, Part I Jeffrey Lubbers (Moderator) William Funk (Constitutional Law and Separation of Powers) Christopher Walker (Adjudication) Salon GHI In this signature event of the Administrative Law Section’s Fall Conference, scholars 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.

10:45 am—11:00 am Break

7:30 am—8:50 am Registration & CLE Sign-In, Refreshment Breaks

8:50 am—9:00 am Welcome from Section Chair & Sponsor Recognition Section Chair Renée Landers Salon GHI

11:00 am—12:45 pm Developments in Administrative Law, Part II Jeffrey Lubbers (Moderator) William Jordan (Rulemaking) Linda Jellum (Scope of Judicial Review) Richard Murphy (Access to the Courts) Salon GHI In this signature event of the Administrative Law Section’s Fall Conference, scholars 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.

Program Agenda

Friday ● December 9, 2016

12:45 pm—1:15 pm Lunch Break

Program Agenda

Friday ● December 9, 2016

1:15 pm—2:45 pm Does State Securities Regulation Matter Anymore? How Federal Securities Regulation Breakout Session V Continues to Encroach on the States James P. Gerkis (Moderator) Mark R. Heuerman, Roberta S. Karmel, Melanie Senter Lubin, Frank Zarb Salon C This panel will discuss recent examples of the continued federal encroachment on state “blue sky” securities regulation and, to a lesser degree, areas of traditional state corporate law. The discussion will cover examples such as (a) the SEC’s regulation through Rule 14a-9 of shareholders’ ability to introduce proxy proposals concerning nominations for Board of Directors, (b) the new Reg A+ pre-emption of state securities laws, and (c) the new crowdfunding rules required by the JOBS Act that regulate small, informal offerings that have traditionally been an essential focus of state regulation. We will additionally discuss (1) the role of the states in the future of regulation, including state responses to anticipated federal action such as the adoption of coordinated review, (2) cost/benefit analysis of state regulation, (3) the impact of state regulation on capital raising activities, (4) enforcement activities by the states, and (5) whether these developments are positive or negative.

1:15 pm—2:45 pm Ethical Red Flags for Public Lawyers Breakout Session V Kristine B. Kassekert (Moderator) Carlos F. Acosta, Judy Kaleta, Richard H. Melnick, Sharon E. Pandak Salon GHI The ABA’s Government and Public Sector Lawyers Division’s Ethical Red Flags for Public Lawyers examines the unique ethical issues confronted by public sector lawyers using an entertaining, interactive format. Panelists dramatize short, illustrative scenarios with a discussion period following each hypothetical. A variety of ethics topics will be covered – all from the point of view of the government lawyer.

ETHICS CLE

CREDIT

2:45 pm—3:00 pm Break

1:15 pm—2:45 pm A Legal Primer on Public-Private Partnerships Breakout Session V Reeve Bull (Moderator) Alissa Ardito, Erlyne Nazaire, Amanda Postiglione, Valerie Wenderoth Salon AB Public-private partnerships are increasingly common as a means for federal agencies to address complex challenges. Agency experience with partnerships varies, and partnerships involve novel issues that span agency general counsel practice areas. This panel will convene key experts across government to advise agency attorneys on partnership authority, appropriations issues, proper legal documents, due diligence and vetting, and partnering with international governmental and non-governmental organizations.

Program Agenda

Friday ● December 9, 2016

3:00 pm—4:30 pm From Deference to Constitutional Scrutiny: The Continuum of Judicial Review in the Realm of Breakout Session VI Administrative Law Jonathan Siegel (Moderator) Cary Coglianese, Kristin Hickman, Lars Noah Salon C This panel examines contemporary questions in the field of Administrative Law, presented by leading scholars in the field. Each scholar will discuss their latest research, developed through articles that will be published in The George Washington Law Review’s Volume 85 Annual Review of Administrative Law. The panelists’ discussion will focus on two key questions at the forefront of Administrative Law: how judges should examine agency interpretation of statutes, and how judges should examine agency action, including actions challenged on constitutional grounds. More specifically, the panelists will explore the process, limitations, and future of the Chevron doctrine, and the level of scrutiny applied to review of agency action, asking also whether narrow tailoring requirements under heightened constitutional scrutiny should demand that regulatory officials consider less restrictive means even where Congress did not empower them to adopt such alternative courses of action.

3:00 pm—4:30 pm Ethics and Professional Responsibility in a Presidential Transition Breakout Session VI Panel C David Rostker (Moderator) David J. Apol, R. Juge Gregg, Dr. Martha Joynt Kumar, Ruth M.S. Vetter Salon GHI Presidential Transitions, like all transitions, present unique opportunities and challenges. The opportunities for people to move in and out of government are matched by the challenges presented by their shifting loyalties. There are government rules to protect and diffuse affinities, real or perceived, which give rise to actual and apparent conflicts of interest. This panel will discuss the U.S. Office of Government Ethics Executive Branch Standards of Conduct rules (government ethics) and responsibilities relating to the movement of personnel from the public to private sector and vice versa. Panelists who worked Presidential transitions at OGE, DoD and the White House will provide their insight into these rules, recent changes, and extra-regulatory influences like Pres. Obama’s and Pres. Bill Clinton’s ethics Executive Orders. There will also be perspective from DOJ on how these rules relate to the professional responsibility rules; and a more historic academic analysis of these rules evolution.

4:30 pm Conference Adjourns

CLE MATERIALS AVAILABLE ONLINE: http://www.americanbar.org/content/ebus/events/2016/2016-administrative-law-conference/materials.html

3:00 pm—4:30 pm Top 10 Agenda Items for President Clintrump's FDA: Whoever Wins has a Full Plate! Breakout Session VI Edgar Asebey, James O’Reilly, Katherine Van Tassel Salon AB After the election, your clients know that it's back to business for the regulators tasked with protecting the foods, drugs, vaccines, and medical devices we all need. What will be their set of tasks to fulfill the objectives of the new President? Four very experienced FDA experts will share in a round-robin format their views on the Ten Top Issues for safety, quality, imports and trade in FDA regulated products. This Panel will be Yuge!! The Best panel Ever!! Try watching it on your home servers!

GENERAL CLE

CREDIT

Administrative Law Conference | December 8-9, 2016 | Washington, DC | MEETING CODE AL16121

ONLINE REGISTRATION: http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=256081222 PHONE: ABA Service Center, 800-285-2221, 312-988-5000, Monday-Friday 9:00 AM - 6:00 PM ET. NOTE MEETING AL16121. Or return completed form to Angela.Petro@americanbar.org. If credit card payment, the ABA Service Center will contact you for payment **QUESTIONS??? Contact Angela.Petro@americanbar.org or 202-662-1582 OR Anne.Kiefer@americanbar.org or 202-662-1690. In the interest of furthering the ABA’s creation, promotion and distribution of educational/informational materials (both now and in the future), I understand and agree that my registration and attendance at, or participation in, ABA meetings, programs and events (“Events”) constitutes an agreement by me to grant to ABA the right to record my image, photograph, picture, likeness, and voice by any technology or means. I also grant ABA the right to copy, use, perform, display and distribute such recordings of me for any legitimate purpose, including but not limited to distribution by means of streaming or other technologies via the Internet, or distribution of audio or video files for download by the public. I hereby waive any right to inspect, approve, or be compensated for use of any materials incorporating such images obtained during the Events. I release ABA and its agents, representatives and licensees from all liabilities arising out of any use of my likeness and d information as provided above. I understand and agree that any and all negatives, digital images, and recordings of my likeness, regardless of form, are and shall remain property of the ABA.

Conference Location: Walter E. Washington Convention Center, 801 Mount Vernon Place NW, Washington, DC 20001. The Convention Center is easily accessed via the Metro Yellow/Green Lines at the Mt. Vernon Square/7th St-Convention Center station. For more information and directions, please visit the Convention Center’s website. Sorry, we cannot validate parking. Hotel Blocks: BOOK BY NOVEMBER 17 5PM EST Hampton Inn Washington-Downtown-Convention Center: 901 6th Street NW, Washington, DC $179 Meeting Rate Valid 12/7 & 12/8 | Complimentary Hot Breakfast Buffet & In-Room Internet Service Call 202-349-2271 or 888-370-0381 and mention: ABA 2016 Fall Administrative Law Conference

CLE: The ABA directly applies for and ordinarily receives CLE credit for ABA programs in AK, AL, AR, AZ, CA, CO, DE, GA, GU, HI, IA, IL, IN, KS, KY, LA, MN, MS, MO, MT, NH, NM, NV, NY, NC, ND, OH, OK, OR, PA, PR, SC, TN, TX, UT, VT, VA, VI, WA, WI, and WV. These states sometimes do not approve a program for credit before the program occurs. This course is expected to qualify for 12.5 CLE credit hours in 60-minute states, and 15 credit hours in 50-minute states. This transitional program is approved for both newly admitted and experienced attorneys in NY. Attorneys may be eligible to receive CLE credit through reciprocity or attorney self-submission in other states. For more information about CLE accreditation in your state, visit http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=256081222. All CLE materials will be posted online and emailed to attendees. Please contact Angela.Petro@americanbar.org by November 1, 2016 if your local MCLE board/state requires a hard copy of materials. http://www.americanbar.org/content/ebus/events/2016/2016-administrative-law-conference/materials.html Scholarships: A limited number of scholarships to defray tuition expenses are available for this program. To request an application or receive additional information, please contact Anne.Kiefer@americanbar.org or 202-662-1690. Scholarship applications must be received by the ABA no later than two weeks prior to the program presentation. Cancellations: Cancellations accepted with cancellation fee ($25—$50 depending on rate). Substitutions are accepted without fee. Contact Angela.Petro@americanbar.org or 202-662-1582.

Special Needs: If you have any special needs (equipment or dietary), please contact Anne.Kiefer@americanbar.org or 202-662-1690.

Name: _________________________________________________________________________________________________________________________

ABA Member ID: ______________________________________________________________ Administrative Law Section Member? Yes_____ No_____

Email: __________________________________________________________________________ Phone: _______________________________________

Organization: ___________________________________________________________________________________________________________________

Address: _______________________________________________________________________________________________________________________

City, State, Zip: _________________________________________________________________________________________________________________

PAYMENT INFORMATION (Checks only*)

o Check (payable to “American Bar Association”) o VISA, AMEX, MC, Discover accepted Online or with Service Center*

*To protect your credit card security, we are accepting credit cards only through online registration or by calling the ABA Service Center. Please contact Angela Petro at

Angela.Petro@americanbar.org or 202-662-1582 with registration questions.

Quantity Registration Type Full Program Daily Rate

Thursday-Friday, December 8-9, 2016

ABA Administrative Law Section Member $349 $249

Government Attorneys/Academia $349 $249

ABA Member $379 $275

General Public Non-Member $439 $300

Law Student $25

DAILY RATE, SELECT A DAY: Thursday 6.0 CLE Hours _______ Friday 6.50 CLE Hours _______

TOTAL FEES $