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Abstract:
This article asks whether terrorism changes the constitutional calculus bearing on racial profiling (and on profiling based on other, comparably troubling grounds, such as religion and gender). While maintaining that domestic racial profiling is indeed unacceptable, I argue that the same is not always true for racial profiling directed at acts of terrorism. Starting from the premise that the use of race is not automatically forbidden under the constitution, I contend that the prevention of terrorism, in the context of an actual war against terrorism, is a governmental interest of particularly compelling weight. Strict scrutiny analysis tells us that the next question is whether racial profiling is ever necessary, or closely tailored, to achieving this goal. I answer that we do not definitively know whether racial profiling will help, but that it may. We also know that profiling will produce many false positives - searches or stops that have no basis in fact - and that these intrusions may produce stigma, humiliation and resentment, although, again, we do not know just how likely these broader harms are.

How should these uncertainties be balanced? I suggest that in times of terrorist emergency, of substantially based fear of imminent terrorist attack, when everyone must endure some measure of intrusion, the constitutional balance embodied in strict scrutiny allows the use of profiling that is targeted carefully, and conducted with restraint. I go on to argue that the principle of emergency profiling can be extended to another terribly dangerous, though not emergency, context, namely airports. At the same time, I urge that even in the context of terrorism by no means anything goes, and I maintain, for example, that the recent program of mass interviews of predominantly Middle Eastern men present in the United States on student, tourist or business visas was an instance of improper racial profiling.

This article reaches unsettling conclusions and might be seen as endorsing a step drawing us towards the tremendous injustice of our World War II internments of Japanese-Americans. But I argue that the profiling I endorse is a far cry from the cruel programs of World War II, and that it is important for scholars to address, candidly, the impact of the new perils we now face on our constitutional stands. I welcome comments from readers.

racial profiling, terrorism, emergency, constitutional law

Abstract:
In this article, the authors, who are writing their own textbook on interviewing and counseling, reflect on the ways in which Gary Bellow and Bea Moulton's groundbreaking textbook, The Lawyering Process, has shaped and is shaping their work. The authors include the introductory chapter of their forthcoming textbook interspersed with commentary on the influence of Bellow & Moulton on each of the primary themes through which their textbook will explore interviewing and counseling: variations in the lawyer-client relationship, context, connection, ethics and theory-driven lawyering. This review allows them to evaluate, not only how deeply and pervasively the Bellow & Moulton text has shaped clinical education, but also how much the environment of clinical education and scholarship has changed since the publication of The Lawyering Process.

clinic, interviewing, ethics, lawyer-client relationship

Abstract:
This essay examines the underlying foundations of the Supreme Court's decision in Hamdan v. Rumsfeld. After laying out many of the features of the conflicting positions taken by the majority and dissents in the case, the article argues that the majority's judgment was by no means determined by the plain meaning of the statutory provisions at issue, nor even by the Steel Seizure framework of overlapping zones of executive and legislative power. Instead, three factors deserve special emphasis. The first is the Court's effort to protect, and catalyze, Congressional authority. The second is the Court's understanding of its own role in maintaining the Rule of Law in this country; the essay emphasizes the simultaneous modesty and power of this role, as well as the potential significance of the rule of law in protecting and mentoring democratic judgment, and in providing a source of guiding principle in a time of doctrinal uncertainty. Finally, the third factor at work, the essay suggests, is the Court's still very tentative realization that it must play a role in shaping the law of war for the war we are now fighting.

The essay might have stopped there, and did, until the enactment of the Military Commissions Act of 2006. This statute is the political branches' answer to the Hamdan Court's insistence that at least in the absence of more specific, express congressional authorization the military commissions were illegal. The statute provides this authorization. It also partially, though not completely, remedies two of the particular concerns in Hamdan - the commission system's lack of judicial independence overall, and its specific failure to guarantee that the accused would be present at all stages of his trial. At the same time, the Act leaves a third problem - the authorization for the admission of evidence violating the usual rules of evidence, including hearsay material and statements obtained through coercion - still very much a feature of the commission system. Perhaps most dramatically, however, the statute cuts off the right to the writ of habeas corpus for any alleged alien enemy combatant, apparently including lawful permanent residents arrested and held in the United States itself.

Moreover, this cut-off is part of a larger, even more disturbing one: while legislating in detail to provide a statutory basis for the military commission system, Congress also specifically sought to bar the federal courts from directly relying on the Geneva Conventions or the Uniform Code of Military Justice in considering convictions obtained through this system, and was not prepared to declare that the Constitution or any other laws of the United States applied to the commissions. The new law is best understood as an effort to circumscribe rather than to support the judiciary's application of human rights principles to the commission system, and it now remains to be seen how far the Supreme Court is prepared to go to protect alleged enemy combatants' rights without the encouragement of Congress, simply in the name of the rule of law and the Constitution.

Hamdan, Military commissions, Habeas corpus, Uniform Code of Military Justice, Geneva Convention, Commmon Article 3

Abstract:
As important, and difficult, as it is to offer new law students clear and helpful frameworks for the interpersonal work of lawyering, doing so is only part of what a clinical textbook may aspire to. In our textbook-in-progress, we hope to offer both frameworks and support for students' sense of the incompleteness of every framework and for their recognition of the need for careful, flexible response to each individual client. Even care and flexibility by themselves are not enough, however, and every text must choose which aspects of lawyer-client relationships it will emphasize most. In the sections that follow, we focus on lawyers' development of connection in context, emotional connection and common ground with clients forged even across considerable gaps of difference; on the application of these skills across especially large contextual gaps, as illustrated in an interview with a client with a mild intellectual disability; and on the ethics and skills of making one special form of connection with a client, the moral relationship entailed in a moral dialogue. These dialogues and commentaries explore many complex moments between lawyer and client, but they also reaffirm the central importance of a fundamental skill and virtue - listening - in the lawyer's work of creating, in each case, a theory of the representation.

interviewing, counseling, disabilities, moral dialogue

Abstract:
How did Justice Stanley Reed come to join the Supreme Court's unanimous decision in Brown v. Board of Education? It is clear from the historical record that Reed's first inclination was to uphold the constitutionality of racially segregated education, and clear as well that in the end he put this inclination aside and joined, without any public qualification, in the Court's decision banning segregation. Perhaps Reed changed his mind about the meaning of the constitution; perhaps he changed his mind about the legitimacy of judges' making social policy in the name of the constitution; perhaps he decided to uphold the Supreme Court's strength as an institution by helping make this momentous decision unanimous; perhaps (though this I particularly doubt) he explicitly or implicitly traded his vote in Brown I for anticipated concessions on the remedy issue that the Court would address in Brown II. The fascinating historical record is ultimately elusive, and exactly what happened will likely never be completely certain, but each of these possibilities raises important questions about the meaning of the "rule of law." I argue here, inter alia, that if Reed's thinking was swayed by the gentle personal touch of Earl Warren and other justices, that emotional impetus was no breach of the rule of law; that if he voted against his own view of the law for the sake of unanimity, this too was within the historical, and legitimate, bounds of Supreme Court justices' decisionmaking discretion; and that if, in voting as he did, he found himself having to disregard some deeply-held beliefs, such as his opposition to judicial policymaking, for the sake of others, this need to act in light of, or in the face of, crosscutting moral demands is ultimately a central part of the rule of law. It is possible to imagine judges obliged to breach the rule of law - in Nazi Germany, for example, or in ante-bellum fugitive slave cases in the United States - but I do not see Justice Reed as having faced such a situation. Instead, the rule of law, rightly understood as the complex and supple social structure that it is, provided room for the choice that he made.

Rule of law, segregation, race, judicial ethics

Abstract:
This paper (a draft of a chapter-to-be in a textbook on legal interviewing and counseling that Bob Dinerstein, Isabelle Gunning, Kate Kruse, Ann Shalleck and I are writing) reflects a recognition that much, likely most, of law practice proceeds faster than the lawyering that is commonly practiced by students in clinics. There are good reasons for having students learn by doing slowly. But experienced lawyers probably work more quickly, partly because they need to - legal needs are extremely numerous, and lawyers' time is scarce - and partly because they have learned to do so well. This paper seeks to explain how lawyers can be both client-centered and fast.

One way that lawyers can save time is by placing more responsibility in the hands of others - paralegals, and even clients - and the paper briefly explores these options. But the main focus of the draft is on the impact of expertise in enabling lawyers themselves to work more quickly, both in interviewing and in counseling their clients. The literature on expertise suggests that in many contexts experts approach problem-solving in much more incisive and efficient ways than novices, such as law students, can. Of course experts, no less than novices, must listen closely to their clients. But experts, it seems, can cut to the chase in an interview; they do not need to explore all possibilities, as a novice might, because they have a much firmer sense of what the promising possibilities in a situation are. Moreover, medical literature suggests that even very quick interviews can also be caring encounters. So, too, experts may counsel more quickly than novices can, notably) because experts can decide, as novices cannot, what issues really deserve the client's closest attention, and in routine circumstances perhaps can even judge what choice is likely to be the best one.

Finally, while experts are known to be fast, it is unnerving to recognize that it is much less clear how sound their fast judgments are. There is no way to escape becoming an expert, and probably no way to avoid coming to reason in expert manner, but there is certainly reason to try to check the tendency of expert judgment to go awry. This goal echoes to another formulation of expertise, which focuses not on experts' speed but on their becoming "reflective practitioners." The paper also offers suggestions of ways that experts can retain reflectiveness while also attaining speed.

expertise, client-centered, interviewing, counseling

Abstract:
South Africa's post-apartheid constitution is one of the most rights-protective constitutions of the world, a document framed to protect the country from the injustices of its grim past. Perhaps surprisingly, this paper finds that in important respects even South Africa's constitution confers striking powers on the executive in time of war or military hostilities. The paper begins with an analysis of the declaration of a state of national defense, South Africa's analogue to a declaration of war, and finds that the procedures applicable to such declarations are in most respects considerably less stringent than those applicable to the declaration of a state of emergency. While a state of emergency permits derogation from constitutional rights, and a state of national defense does not, the harsh realities of war lead to the conclusion that a state of national defense would involve serious potential limits on human rights, and so the relatively easier path to the declaration of a state of national defense is a matter of concern. In addition, the declaration of a state of national defense is not the only means by which South Africa can enter military hostilities; in fact, since the end of apartheid the nation has been engaged in a number of African peacekeeping missions (and has suffered combat deaths), apparently without any such declaration. The constitution gives the president authority to employ South African troops in defense of the Republic or in fulfillment of international obligations, and while I argue that Parliament also has authority to countermand such employments, in the absence of Parliamentary action it appears the president has authority to proceed. The most potent legislative check on Presidential authority may ultimately be the funding power, since Parliament in general must affirmatively decide to appropriate funds, though Parliament's funding authority is somewhat more shared with the executive than is the case in the United States. In sum, though South African constitutional law broadly rejects the kind of unilateral executive war power that has sometimes been asserted on behalf of the U.S. president, the substantial grant of executive authority and the relatively diminished role of the legislature in South Africa remind us that even in an intensely rights-minded constitutional system, war remains a profoundly difficult field for legal limitation.

South Africa, war powers, use of force, President, parliment, state of national defence

Abstract:
It is often suggested that anti-apartheid South Africans' use of the old order's courts in the course of their struggle contributed to the new South Africa's commitment to the rule of law. At the same time, it is widely felt that apartheid South Africa's laws were so illegitimate that moral citizens were not obliged to obey them, and indeed were entitled to take up arms against them. Could a lawyer who chose to break the law at the same time contribute to the ideal of the rule of law? Bram Fischer, whose life has recently been compellingly recounted in a full-length biography by Stephen Clingman, followed a moral path that eventually brought his ethical duty as a lawyer and his moral duty to end apartheid into conflict, and in the end chose to breach his duties as a lawyer in order to meet his responsibility as a human being. This article argues that although it is impossible to know with certainty how Fischer's choices affected other anti-apartheid lawyers, or how those other lawyers' choices to obey or disobey the law affected the strength of the rule of law in post-apartheid South Africa, still we have reason to think that his example taught the ultimate importance of achieving a legal system to which men and women, black and white, could be faithful. Fischer's honesty, his commitment to principle, even as he broke the law resonates across the decades that have passed since he made his choices.

South Africa, Apartheid, Legal Ethics, Rule of Law, Oscar Wilde

Abstract:
This article makes the case for the value – and the feasibility, under current accreditation and related rules governing law schools - of a clinical rotation for law students, modeled on the rotations that are a key part of medical school education. The “clinical year,” which would engage students in almost full-time practice/study for their third year of law school, could be a significant step in building the complete apprenticeship that the Carnegie Foundation for the Advancement of Teaching has urged. It would also rely to a large extent on the supervision, and teaching, that adjunct law school faculty – supervisors at the rotation settings – would provide. In that respect, the “clinical year” differs from in-house clinical education. The article addresses the differences in students’ experience that this approach to bridging the gap between theory and practice would generate, and argues that this model is worth exploring, despite – and in some respects because of – these features.

clinical, Carnegie, legal education

Abstract:
As constitutional protection of human rights expands around the world, the question of whether constitutional rights should protect people not only against state action but also against the conduct of private actors is once again timely. Few nations have so broadly, or so ambiguously, endorsed the application of constitutional guarantees to constrain private conduct (known outside the United States as "horizontality") as South Africa. The constitution approved in 1996 applies fully and without qualification to all "organs of state," and this term is defined in section 239 in potentially very broad terms, notably embracing "any other functionary or institution ... exercising a public power or performing a public function in terms of any legislation ...." Even more far-reachingly, section 8(2) of the constitution declares that "[a] provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right."

These provisions raise quite dramatic questions about the reach of judicial power in the new South Africa, particularly the relationship of the courts' power to legislative authority, and one focus of the article is on examining the extent to which the courts can mitigate these problems, notably by engaging in constitutionally-guided reinterpretation of other law rather than explicit and conclusive interpretation of the constitution itself. These same concerns, however, also underline the importance of examining carefully the circumstances in which horizontality is, and isn't, appropriate.

This article argues that American state action law can inform the interpretation of these aspects of South Africa's constitution. The potential relevance to section 239 of American inquiries into the boundaries of the state, and the dimensions of public functions, is suggested by the words of section 239 itself. But the article also argues that section 8(2) can and should be interpreted to embrace inquiries akin to those of US state action law. Certainly section 8(2) embraces questions that US state action law does not overtly address, specifically questions of the nature of the rights and duties at stake. The article explores the question of whether South Africa's quite extensive catalogue of socioeconomic rights could apply horizontally by examining whether the constitutional right of access to health care is being violated by pharmaceutical companies' policies in pricing AIDS medications beyond the means of most South African AIDS victims, and argues that the sheer horror of this situation indeed generates a strong momentum for horizontality.

The article suggests, however, that the constitutional treatment of pharmaceutical companies and individual pharmacists would be quite different, even though both, at different moments, hold a power approaching that of life and death. A central difference between them is that the pharmaceutical companies are more like the state. It may well be that in a sense all action is state action, but the very fact that we can identify "the state" and its organs suggests that some action is more state-like than other action. Here the pharmaceutical companies resemble governments partly because of their sheer power, and partly because that power corresponds to particularly strong links to the state itself, links embodied in the patent rights that the state grants to and protects for the companies. Ultimately, the article concludes that in this case, and others, the degree of state-connectedness does matter to the measure of the constitution's reach, and that American state action thinking - as problematic as it has been - therefore is of value to the decisions South Africans will make about horizontality.