Montana Law Review Symposium

WEDNESDAY, OCTOBER 11, 2006  

4:00 p.m. – 4:10 p.m.

Conference Welcome-Liz Lowrance, Symposium Editor, Montana Law Review

4:10 p.m. – 5:25 p.m.

PRIVACY OR ISOLATION: THE SUPREME COURT’S CONFUSED (AND CONFUSING) UNDERSTANDING OF THE HUMAN PERSON

Teresa Stanton Collett, Professor of Law, University of Saint Thomas School of Law. The law of privacy, like all law, is based upon a particular understanding of the person and human relationships.  Early American law understood the person to be embedded in numerous relationship, some arising from the person's consent and others arising from the human condition. Obligation or duty was as much a part of the Court's vocabulary as rights. This view has changed dramatically in the past fifty years with the rise of "radical individualism" and the replacement of the night watchman state with the welfare state.  Nowhere is this more evident than in the Court's attempts to fashion a coherent jurisprudence of privacy.  Professor Collett will discuss the anthropology of the person that emerges from the Court's recent cases regarding marriage, family, and human sexuality, and will challenge others to identify the underlying concept of the person in their arguments. Teresa Stanton Collett is Professor of Law at the University of St. Thomas School of Law in Minneapolis, MN where she teaches bioethics, property law, and professional responsibility. A nationally prominent speaker and scholar, she is active in attempts to rebuild the Culture of Life and protect the institutions of marriage and family. She often represents groups of state legislators, the Catholic Medical Association, and the Christian Medical and Dental Association in appellate case related to medical-legal matters. She recently represented the governors of Minnesota and North Dakota before the United States Supreme Court as amici curiae regarding the effectiveness of those states' parental involvement laws.  She currently serves as special attorney general for Oklahoma and Kansas related to legislation designed to protect the well-being of minors. Most recently Professor Collett appeared before the United States Senate Subcommittee during a hearing to examine the consequences of Roe v. Wade and Doe v. Bolton (June 23, 2005).

6:30 p.m. – 7:00 p.m.

SYMPOSIUM KEYNOTE ADDRESS

The Honorable James C. Nelson, Justice, Montana Supreme Court. In his address, Justice Nelson will highlight critical privacy issues facing our nation and comment on basic themes the speakers at this symposium will address. Justice Nelson has served on the Montana Supreme Court since 1993. Prior to his appointment to the Court, he engaged in the general practice of law in Cut Bank for nearly 20 years and served as the Glacier County Attorney for 14 years. Justice Nelson obtained his undergraduate degree in business from the University of Idaho in 1966 and his law degree from George Washington University in 1974. He has served on many state boards and commissions and currently serves on a number of Court and Bar committees and commissions.

7:00 p.m. – 8:30 p.m.

AMERICA ’S DRUG WAR AND THE RIGHT TO PRIVACY

Norman Stamper, Advisory Board Member, Law Enforcement Against Prohibition (LEAP). Mr. Stamper will present on the United States’ failed and poorly-directed “drug war,” with special emphasis on how the effort tramples civil liberties, including the right to privacy. Mr. Stamper will argue that the war on drugs has not protected American citizens, and that the real casualties of the war on drugs have been innocent Americans. Mr. Stamper was a police officer for 34 years, first with the San Diego Police Department and then as the Chief of Police in Seattle from 1994 to 2000. While in San Diego, Mr. Stamper received numerous awards and citations, and served as Executive Director of Mayor Pete Wilson’s Crime Control Commission for three years. As Seattle’s Chief of Police, Mr. Stamper created new bureaus of Professional Responsibility, Community Policing, and Family and Youth Protection. Mr. Stamper was also a member of the National Advisory Counsel on the Violence Against Women Act; Police Executive Research Forum; International Association of Chiefs of Police; and the Major Cities Chiefs. Mr. Stamper is the author of Breaking Rank: A Top Cop’s Exposé of the Dark Side of American Policing (Nation Books, 2005).

THURSDAY, OCTOBER 12, 2006

11:50 a.m. – 1:10 p.m.

PRIVACY AND REPRODUCTIVE RIGHTS

Judith Waxman, Vice President and Director of Health and Reproductive Rights, National Women’s Law Center. Ms Waxman will discuss the history of birth control and abortion in the United States. She will trace the right to privacy up to, and including, the 1973 Roe v. Wade decision, and explain how the right has evolved over the last thirty years. She will also address how the right to privacy intersects with an individual’s personal dignity, equality and dignity concerns of women. Judith Waxman has been an advocate for low-income families on health issues for more than 25 years.  She joined the National Women's Law Center in February 2003 after more than a decade at Families USA, where she served as Deputy Executive Director. Ms. Waxman now leads the National Women's Law Center's health team, which is at the forefront of major legal and public policy initiatives to protect and advance women's health and reproductive rights.  In addition to working for non-profit advocacy organizations, Ms. Waxman has worked as an attorney at the United States Department of Health and Human Services, served on the staff of a Congressional Commission on Health Care chaired by Senator Rockefeller, and taught health law at Georgetown University Law Center. She is the author of numerous publications.

3:00 p.m. – 4:25 p.m.

TECHNOLOGY AND PRIVACY

The Honorable James C. Nelson, Justice, Montana Supreme Court. Justice Nelson will provide an overview of privacy challenges created by technology. In so doing, he will introduce Barry Steinhardt. Following Mr. Steinhardt’s presentation, Justice Nelson will provide a brief response.

Via Video Conference:

TAMING THE SURVEILLANCE MONSTER: TECHNOLOGY AND PRIVACY ISSUES

Barry Steinhardt, Director, ACLU Program on Technology and Liberty. The explosion of computers, cameras, sensors, wireless communication, global positioning systems, biometrics, and other technologies in just the last 10 years is feeding what can be described as a surveillance monster that is growing silently in our midst. Scarcely a month goes by in which we don’t read about some new high-tech method for invading privacy, from, data-mining to DNA chips, and radio frequency identity chips in our passports. The fact is, there are no longer any technical barriers to the creation of the surveillance society. As this surveillance monster grows in power, we are weakening the legal chains that keep it from trampling our privacy. While the technological bars are falling away, we should be strengthening the laws and institutions that protect against abuse by both private industry and government agencies. Mr. Steinhardt will discuss the ways that we should be responding to intrusive new technologies by building stronger restraints to protect our privacy. Barry Steinhardt is a 1978 graduate of the Northeastern University School of Law. He has had a distinguished career with the ACLU, including service as its Associate Director from 1992 to 2002. He was chair of the 2003 Computer Freedom and Privacy Conference (CFP) and a co-founder of the Global Internet Liberty Campaign (GILC). He is a member of the Advisory Committee to the US Census. He was a member of the Blue Ribbon Panel on Genetics of the National Conference of State Legislatures, and also a member of the US delegation to the G-8 Government and Private Sector Tokyo Conference on Cyber Crime.

FRIDAY, OCTOBER 13, 2006

12:00 p.m. – 1:15 p.m.

PRIVACY, DIGNITY, AND PATIENT CHOICE AT THE END OF LIFE

Kathryn L. Tucker, Director of Legal Affairs, Compassion & Choices. Ms. Tucker will examine Montana’s constitutional right to privacy and dignity as it applies to a competent, terminally ill Montanan’s choice to obtain medication from his or her physician in order to control his or her own death. She will discuss the likelihood that a state version of the landmark federal cases Quill v. New York and Glucksberg v. Washington would succeed in Montana. Ms. Tucker will argue that consideration of a number of factors suggest that winning such a case is possible in Montana. Those factors include the language of the Montana Constitution; state constitutional precedent; recent developments in the State of Oregon under Oregon’s Death with Dignity Act; and the growing societal acceptance of this option. Ms. Tucker is recognized as a national leader in her field, and has argued before the United States Supreme Court on behalf of patients and physicians asserting that competent dying patients have a constitutional right to choose a humane, hastened death with physician assistance. Ms. Tucker is also an Affiliate Professor of Law at the University of Washington and Seattle University, and has published numerous articles discussing end of life care in journals such as The New England Journal of Medicine, The Journal of Palliative Medicine, and The Health Lawyer, to name only a few.

1:30 p.m. – 2:45 p.m.

PRIVACY AND SAME-SEX MARRIAGE: THE CASE FOR TREATING SAME-SEX MARRIAGE AS A HUMAN RIGHT

Vincent J. Samar, Adjunct Professor of Law, Illinois Institute of Technology: Chicago Kent College of Law, and Adjunct Professor of Philosophy, Loyola University Chicago and Oakton Community College. Professor Samar will discuss privacy concerns in the context of same-sex marriage. He will argue that the private aspects of marriage indicate that marriage is a human right because it advances human self-fulfillment in a way that cannot be accomplished outside of marriage. Using a recent New York Court of Appeals decision, he will argue why laws that recognize only opposite-sex marriage demean the human dignity of both opposite-sex partners and same-sex partners. Professor Samar received his J.D. from Syracuse University, his LL.M from Harvard Law School (studying under Martha Minow) and his Ph.D. in Philosophy from the University of Chicago. While at the University of Chicago, he studied under Professors Alan Gewirth, Russell Hardin and Cass Sunstein. He specializes in philosophy of law, sexual orientation and the law, and political philosophy and ethics. Samar has published a number of articles involving human rights and gay rights, edited one book on the gay rights movement, and authored two books, Justifying Judgment: Practicing Law and Philosophy (University of Kansas Press, 1998) and The Right to Privacy: Gays, Lesbians and the Constitution (Temple University Press, 1991) . He has also testified on behalf of legislative adoption of human rights ordinances for Chicago and Oak Park, IL and has spoken on same-sex marriage at several Chicago universities and the Lehrer News Hour.