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Tenth Annual Executive Branch Review Conference —EBRX

The Administrative State, Law, and Culture

May 3, 2022

Tenth Annual Executive Branch Review Conference—EBRX
Theme: The Administrative State, Law, and Culture

Tuesday, May 3, 2022
The Mayflower Hotel
1127 Connecticut Avenue, NW, Washington, DC

Opening Address
9:00 a.m.


Hon. Mike S. Lee
United States Senator, Utah

Address
2:15 p.m.


Hon. James Lankford
United States Senator, Oklahoma

 

Schedule:

Welcome & Plenary Session
9:00 a.m. – 10:30 a.m. 

Breakout Panels
10:40 a.m. – 12:00 p.m.

Lunch
12:00 p.m. – 12:20 p.m.

Luncheon Panel
12:20 p.m. – 2:00 p.m.

Breakout Panels
2:15 p.m. – 3:45 p.m. 

Closing Address
4:00 p.m. – 4:30 p.m.

Closing Reception
4:30 p.m. – 6:00 p.m.

Freedom of Thought Project Dinner & Panel 
6:30 p. m. – 9:00 p.m. 

Panels:

  • Regulation by Surrogate? Is the Government Evading the Administrative Procedure Act?
  • The Executive Branch's Duty to Enforce
  • ABA Accreditation of Law Schools
  • American Investment in China
  • Administrative State on the Brink?
  • Religious Liberty and the Department of Defense
  • Climate Risk a New Regulatory Risk? Implications for Financial Regulatory Control of the Financial System
  • Selective Enforcement of Civil Rights Law by Administrative Agencies

Confirmed panelists to date:

  • Hon. M. Miller Baker, U.S. Court of International Trade
  • Hon. W. Scott Bales, Former Chief Justice, Arizona Supreme Court
  • Mr. Eric Baxter, VP & Senior Counsel, Becket
  • Mr. Jonathan Berry, Partner, Boyden Gray & Associates
  • Mr. Michael D. Berry, Vice President, External Affairs, First Liberty Institute
  • Hon. Steven G. Bradbury, Attorney and Former Senior U.S. Government Official
  • Amb. Kelley Currie, Adjunct Senior Fellow, Indo-Pacific Security Program, Center for New American Security; Senior Advisor, Krach Institute for Tech Diplomacy, Purdue University
  • Mr. Alex Dimitrief, Partner, Zeughauser Group
  • Mr. Sean Donahue, Partner, Donahue & Goldberg LLP
  • Dr. David Dollar, Senior Fellow, John L. Thornton China Center, Brookings Institution 
  • Prof. Eugene R. Fidell, Adjunct Professor of Law, New York University School of Law; Of Counsel, Feldesman Tucker Leifer Fidell LLP
  • Prof. Philip A. Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School; President, New Civil Liberties Alliance
  • Ms. Samantha Harris, Partner, Allen Harris Law
  • Prof. William Jacobson, Clinical Professor of Law and Director of the Securities Law Clinic, Cornell Law School
  • Mr. Ivan Kanapathy, Senior Associate, Freeman Chair in China Studies, Center for Strategic & International Studies
  • Hon. Gregory G. Katsas, U.S. Court of Appeals, D.C. Circuit
  • Hon. Sally Katzen, Professor of Practice and Distinguished Scholar in Residence; Co-Director, Legislative and Regulatory Process Clinic, New York University School of Law
  • Prof. Jeremy Kress, Assistant Professor of Business Law, Michigan Ross; Co-Faculty Director, Center on Finance, Law & Policy, University of Michigan
  • Mr. Paul H. Kupiec, Senior Fellow, American Enterprise Institute
  • Prof. Renee M. Landers, Professor of Law and Faculty Director, Health and Biomedical Law Concentration and the Masters of Law: Life Sciences Program, Suffolk University Law School
  • Dr. Nicholas Lawson, Commissioner, ABA Commission on Disability Rights
  • Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law
  • Hon. Trevor N. McFadden, U.S. District Court, District of Columbia
  • Prof. Derek T. Muller, Professor of Law, University of Iowa College of Law
  • Mr. Ryan Newman, General Counsel, Governor of Florida Ron DeSantis
  • Hon. Neomi Rao, U.S. Court of Appeals, D.C. Circuit
  • Mr. Justin Savage, Global Co-Leader and Partner, Environmental Practice, Sidley Austin LLP
  • Prof. Christina P. Skinner, Assistant Professor of Legal Studies & Business Ethics, The Wharton School, University of Pennsylvania
  • Mr. Stephen Soukup, Vice President and Publisher, The Political Forum
  • Mr. Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Meese Center for Legal and Judicial Studies, The Heritage Foundation
  • Mr. Graham Steele, Assistant Secretary for Financial Institutions, U.S. Department of the Treasury
  • Hon. Stephen A. Vaden, U.S. Court of International Trade
  • Hon. Justin Walker, U.S. Court of Appeals, D.C. Circuit
  • Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University
  • Mr. Jeffrey H. Wood, Partner, Baker Botts; Former Acting AAG Environment and Natural Resources Division, U.S. Department of Justice

Cost:

  • Conference (with no CLE) - Free
  • Conference with CLE - $50
  • Freedom of Thought Project Dinner - $25 for members, $50 for non-members (members must login to receive discount).

 

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9:00 a.m. - 10:30 a.m.
Welcome & Plenary Session: Regulation by Surrogate? Is the Government Evading the Administrative Procedure Act?

Tenth Annual Executive Branch Review

Topics: Administrative Law & Regulation • Separation of Powers • Federalism & Separation of Powers
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036

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Event Video

Description

In 1946, after ten years of study, Congress passed, and President Truman signed, the Administrative Procedure Act, a law that has been called the constitution of administrative law.  During the Roosevelt Administration, many new federal agencies were created to implement FDR’s New Deal.  These agencies regulated more private conduct than ever before.  Congress deemed it essential to enact a statute governing how these agencies would operate, and to establish rules of conduct to protect the regulated persons and entities.  U.S. Senator Pat McCarran of Nevada called the APA "a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated" by federal government agencies.  During the 75 years since its enactment, the APA has been regularly invoked in litigation, as citizens challenge agency action on the grounds that the agency did not comply with APA’s requirements.  

But what recourse do you have when the enforcement action against you is not being taken by a government agency, but by a private entity at the behest of the government?  The government encourages “social media” companies to censor your speech.  The Securities and Exchange Commission establishes a special enforcement unit to police public companies’ compliance with ESG (environment, social, governance) initiatives.  The Biden Department of Labor reversed the Trump administration’s reversal of the Obama administration’s guidance that permitted fiduciaries to consider ESG in their management of certain retirement funds.  In these and other areas of our lives, our activities are being governed, not by the government, but by its surrogates.  

The U.S. Constitution established a national government consisting of three branches.  The administrative agencies have been called a fourth branch.  Now, with corporations, investment funds, and other non-government entities deputized to regulate our conduct, do we have the emergence of a “fifth branch” of government?  Does this fifth branch operate free of the strictures of the APA?  What recourse is available for those affected?  

Our panelists will address these developments, bringing to bear their individual expertise regarding the serious issues raised by the use of regulatory surrogates and the consequences that could result from the emergence of a “fifth branch” of government.  

Featuring:

  • Opening Remarks Hon. Mike S. Lee, United States Senator, Utah
  • Mr. Jonathan Berry, Partner, Boyden Gray & Associates
  • Mr. Stephen Soukup, Vice President and Publisher, The Political Forum
  • Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University
  • Moderator: Hon. Stephen A. Vaden, U.S. Court of International Trade

Speakers

10:40 a.m. - 12:00 p.m.
Breakout Panel: The Executive Branch's Duty to Enforce

Tenth Annual Executive Branch Review

Topics: Administrative Law & Regulation
Palm Court
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036

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Event Video

Description

The debate over the Executive branch's duty to defend laws passed by Congress against constitutional challenges arises with every new presidential administration. Although historically most Attorneys General have agreed that the President's duty to defend is subject only to certain narrow exceptions, questions have been raised about recent administrations in this regard--including with respect to the handling of the enforcement (or non-enforcement) of federal immigration law, the implementation of the Affordable Care Act, and the defense of religious liberty, speech, and gun rights, to name just a few. When does the exercise of executive discretion cross the line into political partisanship, and what are the effects on the rule of law? This panel will explore this issue in depth and touch upon various aspects of the debate.

Featuring:

  • Mr. Steven G. Bradbury, Attorney and Former Senior U.S. Government Official
  • Mr. Sean Donahue, Partner, Donahue & Goldberg LLP
  • Mr. Ryan Newman, General Counsel, Governor of Florida Ron Desantis
  • Mr. Justin Savage, Global Co-Leader and Partner, Environmental Practice, Sidley Austin LLP
  • Moderator: Hon. Gregory G. Katsas, U.S. Court of Appeals, District of Columbia Circuit

Speakers

10:40 a.m. - 12:00 p.m.
Breakout Panel: ABA Accreditation of Law Schools

Tenth Annual Executive Branch Review

Topics: Administrative Law & Regulation
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036

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Event Video

Description

The U.S. Department of Education provides oversight of postsecondary institutions or program accreditation by reviewing federally recognized accrediting agencies. There is one such agency for accreditation of legal education institutions or programs: The American Bar Association's Council of the Section of Legal Education and Admissions to the Bar. The Secretary of Education, by law, is the official responsible for recognition of accreditation agencies based on her determination that the agency is a reliable authority as to the quality of education or training provided by the entities and programs the agencies review. The Secretary of Education has exercised that authority to recognize the ABA's Council as the single accreditation agency for legal education. The ABA has held this position since its adoption of comprehensive standards in 1973--nearly fifty years. 

But the ABA writ large is an organization in decline as its substantial drop in membership--and resulting revenue--demonstrates. At the same time that ABA membership is declining, the ABA's public and official positions on cultural and divisive issues remain. And now those positions are taking root not just in the ABA's policy bodies but also within the Council itself. Most recently, the Council adopted new "anti-bias" educational requirements as part of its accreditation standards. 

Featuring:

  • Hon. W. Scott Bales, Former Chief Justice, Arizona Supreme Court
  • Prof. William Jacobson, Clinical Professor of Law and Director of the Securities Law Clinic, Cornell Law School
  • Dr. Nicholas Lawson, Commissioner, ABA Commission on Disability Rights
  • Prof. Derek T. Muller, Professor of Law, University of Iowa College of Law
  • Moderator: Hon. Trevor N. McFadden, U.S. District Court, District of Columbia

Speakers

10:40 a.m. - 12:00 p.m.
Breakout Panel: American Investment in China

Tenth Annual Executive Branch Review

Topics: Administrative Law & Regulation • Foreign Policy
Chinese Room
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036

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Event Video

Description

For many years, the “Washington consensus” was that investing in China—either directly by contracting for goods and services and opening subsidiaries there or indirectly by acquiring shares of Chinese companies, would encourage the Westernization of China, and bring it closer to democracy.   More recently, questions have been raised whether US capital inflows into Chinese companies are supporting a repressive regime, creating national security risks or in the extreme--empowering the enemy.  The Trump Administration imposed financial sanctions and trade restrictions on some Chinese companies, which were continued (and expanded) by the Biden Administration.  In December 2021, the SEC finalized rules to implement the Holding Foreign Companies Accountable Act (enacted in 2020) in response to the inability of the PCAOB to inspect the audits of China-based, U.S.-listed firms. Pursuant to this law, the SEC will ban companies from trading in the U.S. securities markets as of 2024 if the PCAOB is unable to inspect the audits of such companies for three consecutive years.  The Chinese government in efforts to control its data and economy has triggered significant sell-offs of Chinese public companies, and the SEC has essentially halted new IPO listings of Chinese companies by amping up disclosure requirements.  Yet, there are institutional investors and others who maintain that a diversified portfolio must necessarily include investments in China directly and Chinese companies given its GDP ranking in the global economy.  These same investors believe that if the US were to block or otherwise limit US listings, investors will simply make their investments directly on Chinese exchange, through Hong Kong or otherwise.

This is the debate—where is it going and what tools does the Executive Branch and Congress have to advance or retard this financial decoupling?   Our panelists will discuss the background and state of play, and why progressives and conservatives may agree on limiting or blocking capital flows into China and counterarguments as well.  

Featuring:

  • Amb. Kelley Currie, Adjunct Senior Fellow, Indo-Pacific Security Program, Center for New American Security; Senior Advisor, Krach Institute for Tech Diplomacy, Purdue University
  • Mr. Alex Dimitrief, Partner, Zeughauser Group
  • Dr. David Dollar, Senior Fellow, John L. Thornton China Center, Brookings Institution
  • Mr. Ivan Kanapathy, Senior Associate, Freeman Chair in China Studies, Center for Strategic & International Studies
  • Moderator: Hon. M. Miller Baker, U.S. Court of International Trade

Speakers

12:00 p.m. - 12:20 p.m.
Lunch

Tenth Annual Executive Branch Review

Topics: Administrative Law & Regulation
State Room
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036

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12:20 p.m. - 2:00 p.m.
Luncheon Address & Panel: Administrative State on the Brink?

Tenth Annual Executive Branch Review

Topics: Administrative Law & Regulation
State Room
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, D.C., DC 20036

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Event Video

Description

Over the past 85 years the administrative state has been a dominant feature in the American legal landscape, with important aspects of governance at the federal level having shifted from Congress to the Executive in the form of agency decision-making through rules and orders that touch on every aspect of American life.  Nowhere has this been seen more vividly in everyday life than the patchwork of orders and rules that issued over the past two years in the context of the COVID-19 pandemic.  Even prior to the pandemic, there was a recognition in both legal scholarship and jurisprudence that our democratic constitutional system was not designed for sweeping decisions to be made outside of the legislative process.  And, although still reluctant to find constitutional “nondelegation” violations, courts have increasingly invoked the “major questions” doctrine or resorted to a “Chevron step zero” analysis to consider whether—as a matter of statutory interpretation—Congress could have possibly intended to delegate certain kinds of decisions.  With growing discomfort about Chevron deference, as well as so-called “experts” making decisions the Constitution entrusts to politically-accountable elected officials, is the administrative state finally on the brink of a major overhaul?  We will look at recent and upcoming Supreme Court cases—ranging from vaccine mandates, to environmental rulemakings, to foundational challenges to agency structure—to discuss the future of the administrative state.

Featured:

  • Prof. Philip A. Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School; President, New Civil Liberties Alliance 
  • Hon. Sally Katzen, Professor of Practice and Distinguished Scholar in Residence; Co-Director, Legislative and Regulatory Process Clinic, New York University School of Law
  • ModeratorHon. Neomi Rao, U.S. Court of Appeals, D.C. Circuit

Speakers

2:15 p.m. - 3:45 p.m.
Breakout Panel: Climate Risk a New Regulatory Risk? Implications for Financial Regulatory Control of the Financial System

Tenth Annual Executive Branch Review

Topics: Administrative Law & Regulation • Environmental & Energy Law • Financial Services
Palm Court
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036

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Event Video

Description

Deploying a “whole-of-government approach” to climate change, the Biden Administration has sought to disincentivize the production, generation, and use of fossil fuels in the United States and globally, with an eye toward achieving “economy wide net zero emissions by 2050.” While geopolitical dynamics – including the war in Ukraine – now threaten to derail some of those plans (at least temporarily), the Biden Administration is pressing ahead with a variety of measures to accelerate the transition away from oil, natural gas, coal, and other fossil fuels. Financial levers and economic metrics are emerging as key tools for achieving the administration’s targets.

Last year, President Biden issued Executive Order 14030 on “Climate-Related Financial Risk,” which directed a variety of financial regulatory agencies to address climate-related financial issues. For example, Executive Order 14030 instructs the Financial Stability Oversight Council (FSOC) to take steps to incorporate “climate-related financial risk into regulatory and supervisory practices.”  Most recently, in March 2022, the Securities and Exchange Commission (SEC) proposed new climate mandates to require publicly-traded companies to disclose company-wide emissions (including emissions up and down their supply chains). The SEC proposal would also require disclosure of corporate “governance” of climate-related risks and relevant “risk management processes,” along with climate-related financial statement metrics, targets, and “transition plans.”  Climate-related actions are also being taken at the Federal Reserve Board, the Commodities Futures Trading Commission, the Federal Housing Financing Agency, and the Treasury Department’s Federal Insurance Office.  Even more broadly, the President has directed federal agencies to restore the use of an Obama-era metric known as the “Social Cost of Greenhouse Gases” for a wide range of agency decisions and programs.  These government initiatives build on non-governmental ESG programs – a key focus of many activist shareholders -  that are forcing closer corporate scrutiny of climate-related concerns.

This panel will debate the legal, policy, and economic merits of efforts to use these and other financial measures to address climate change and drive energy transition in the private sector. Are these measures lawful? Has Congress authorized them? Are financial regulators equipped to engage in these areas? Do market failures justify these interventions? What are the costs and benefits of these new measures? And how will the courts as well as the investment community respond and react?

Featured:

  • Prof. Jeremy Kress, Assistant Professor of Business Law, Michigan Ross; Co-Faculty Director, Center on Finance, Law & Policy, University of Michigan
  • Mr. Paul H. Kupiec, Senior Fellow, American Enterprise Institute
  • Prof. Christina P. Skinner, Assistant Professor of Legal Studies & Business Ethics, The Wharton School, University of Pennsylvania
  • Mr. Graham Steele, Assistant Secretary for Financial Institutions, U.S. Department of the Treasury
  • Moderator: Mr. Jeffrey H. Wood, Partner, Baker Botts; Former Acting AAG, Environment and Natural Resources Division, U.S. Department of Justice

Speakers

2:15 p.m. - 3:45 p.m.
Breakout Panel: Religious Liberty and the Department of Defense

Tenth Annual Executive Branch Review

Topics: Administrative Law & Regulation • Religious Liberty
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036

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Event Video

Description

The Department of Defense is the largest employer in the nation, and its policies significantly affect the daily lives of over one million service members. Many of these service members are religious, holding a variety of religious beliefs from different denominations. All are guaranteed the freedom to do so, and they do not leave this freedom behind when then they join the military. But the military has a particular interest in uniform rules and regulations, so perhaps has less latitude for exemption-making than other organizations. The proper relationship between the DOD and religious liberty, as well as recent conflicts including the vaccine-mandate lawsuit on behalf of Navy SEALs, will be discussed in this program.

Featured:

  • Address: Hon. James Lankford, United States Senator, Oklahoma
  • Mr. Eric Baxter, VP & Senior Counsel, Becket
  • Mr. Michael D. Berry, Vice President, External Affairs, First Liberty Institute
  • Prof. Eugene R. Fidell, Adjunct Professor of Law, New York University School of Law; Of Counsel, Feldesman Tucker Leifer Fidell LLP
  • Moderator: Hon. Justin Walker, U.S. Court of Appeals, D.C. Circuit

Speakers

2:15 p.m. - 3:45 p.m.
Breakout Panel: Selective Enforcement of Civil Rights Law by the Administrative Agencies

Tenth Annual Executive Branch Review

Topics: Administrative Law & Regulation • Civil Rights
Chinese Room
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20063

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Event Video

Description

There have been numerous pieces of civil rights legislation that have been passed by Congress and signed into law by the President.  These laws attempt to be, with varying degrees of success, a bulwark against discrimination and oppression in many areas of American life, from voting to education to criminal justice.  These laws, however, are only as effective if the government agencies and officials that are tasked to enforce them do so effectively. 

If an administration disagrees with a law, or with its application to particular circumstances, but lacks the political capital to change the law, officials sometimes appear to underenforce or ignore the law, reinterpret its meaning to avoid enforcing it, or enforce it differently than Congress intended or the plain language demands.  

Our panel will discuss the ways that administrations and administrative agencies can, have, and have not selectively enforced the laws designed to protect civil rights in the United States, and what consequences this discretion has on society and the polity. 


Featured:

  • Ms. Samantha Harris, Partner, Allen Harris Law
  • Prof. Renée M. Landers, Professor of Law and Faculty Director, Health and Biomedical Law Concentration and the Masters of Law: Life Sciences Program, Suffolk University Law School
  • Mr. Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Meese Center for Legal and Judicial Studies, The Heritage Foundation
  • Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law

Speakers

4:00 p.m. - 4:30 p.m.
Closing Address

Tenth Annual Executive Branch Review

Topics: Administrative Law & Regulation
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036

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4:30 p.m. - 6:00 p.m.
Closing Reception

Tenth Annual Executive Branch Review

Topics: Administrative Law & Regulation
East Room
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036

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6:30 p.m. - 9:00 p.m.
Freedom of Thought Dinner & Panel

Public and Private Regulation: What's Driving ESG?

Grand Ballroom
The Mayflower Hotel
1127 Connecticut Ave NW
Washington, DC 20036

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Description

We recognize the risks of agency overreach when rulemaking seeks to impose ESG considerations on business.  But to what extent have private banks and institutional investors also been able to leverage their economic power to shape firm behavior on climate and other ESG questions – outside of the democratic process?  And if we worry that the administrative state lacks political accountability for contentious policy choices, should we also be concerned about the role of private economic influence?

Join us for a dinner at the Mayflower Hotel as our panelists discuss these questions and more. Dinner tickets will be available when purchasing conference tickets at a discount to logged in members. Login or Join today!

Featuring: 

  • Christina Parajon Skinner, Assistant Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania 
  • Julia Mahoney, John S. Battle Professor of Law, Univeristy of Virginia School of Law 
  • Matthew Stoller, Director of Research, American Economic Liberties Project 
  • Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates 
  • Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, District of Columbia Circuit 

Reading Materials: 

Speakers

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