Saying yes and saying no

Last fall the family of Arthur Chaskalson invited me to write Arthur’s biography. Arthur Chaskalson was a force for justice and law throughout his long and productive life. He was the first President of South Africa’s post-apartheid Constitutional Court, and before that he co-founded and then led the Legal Resources Centre, which played a crucial role in the remarkable campaign to use South African law itself to challenge apartheid and remains a steadfast voice for human rights in South Africa today. He was also my friend for 25 years until his death, at the age of 81, in 2012.

I was very excited to get this invitation – but then came my cancer diagnosis. At the time my chemotherapy began, my doctors didn’t want me to make any long-term work commitments. It was only as it became clear that I was doing well with the chemotherapy, so well that it seemed likely that the disease itself was being beaten back, that my oncologist told me that I could make a commitment to a two-year work project. And so I said yes to the family’s invitation, with great pleasure.

Two years is not a great deal of time to write about a life as full as Arthur’s. If it turns out I can keep working for longer than that, as I hope, I’m sure I can make the book more complete. But I believe I can tell Arthur’s story, and especially the part of that story that I had the privilege to be part of, in two years.

To do that, however, I’m realizing I have to be very focused. Everyone knows that in order to do one job, you have to be prepared to say you won’t do others, but now I see this fact more plainly. As Paul Kalanithi – a young neurosurgeon who suddenly faced, and ultimately succumbed to, cancer – wrote in his book When Breath Becomes Air (2016, at pp. 131-32), “Before my cancer was diagnosed, I knew that someday I would die, but I didn’t know when. After the diagnosis, I knew that someday I would die, but I didn’t know when. But now I knew it acutely.” To put this point in somewhat different words, now I understand something that was always true: that each day’s time is precious. I will do more at work in these two years than just write this book – right now I’ve begun teaching again – but I will watch my commitments carefully. I now know, acutely, that saying no is part of saying yes.

Why did South Africa let Sudan's president come and go without arresting him?

One of the more depressing news items lately has been the story of South Africa’s refusal to arrest Omar al-Bashir, the President of Sudan for whom the International Criminal Court has issued an arrest warrant. Despite that outstanding warrant, Bashir was allowed to come to South Africa for a meeting of the heads of state of the African Union, and when a South African court ordered that he not be permitted to leave until the court could decide what South Africa’s legal obligations to execute that warrant were, the South African government instead enabled him to fly out of the country. The Mail and Guardian, a South African newspaper, reports that this was the result of decisions at the highest levels of the government: “President Jacob Zuma and his key security ministers plotted to ensure Sudanese President Omar al-Bashir’s safe passage out of South Africa, flouting a court order and international convention,” it says. 

That all sounds like the South African government putting political ties with Africa (and perhaps domestic politics as well) above legal obligations, and indeed that’s broadly how Obed Bapela, described by the Mail & Guardian as “the head of the ANC’s international relations sub-committee and deputy co-operative governance minister,” justified it. The Mail & Guardian quotes Bapela: “We would have been seen as lackeys of the West. We had to choose between the unity of Africa and the ICC and we chose Africa. We said we can deal with the ICC later.”

But there’s a twist. According to a news24 article, while South Africa considered whether or not to let al-Bashir leave, Sudan did not just wait patiently. Instead, “shortly after Al-Bashir left for the African Union summit,” Sudanese forces surrounded the bases of South African soldiers who are stationed in Sudan as UN peacekeepers. Moreover, the article indicates, the Sudanese forces would have been much better armed than the South Africans, because – even though the South Africans are in the country under a UN mandate – Sudan has repeatedly refused to allow South Africa to fly in additional military equipment for its troops. Fortunately for the South Africans, according to a soldier’s message quoted in news24, “The battalion commander said after Bashir touched down safely in Khartoum, all the [Sudanese] troops were withdrawn.”

Now the reason that al-Bashir’s case is before the International Criminal Court is that the UN Security Council referred the case to it.  But the Security Council also must have provided the authority for the peacekeeping operation in Sudan, and thus for South Africa’s military presence there. Surely the UN was aware of Sudan's interference with South Africa's efforts to equip its troops fully. So if South Africa shrank from enforcing the ICC’s warrant in part because its troops were vulnerable to Sudanese pressure, isn’t that attributable at least in part to the Security Council itself?

One might ask, of course, why South Africa put up with this vulnerability, and why it decided to welcome al-Bashir at this meeting when he had for years been undercutting the South African soldiers stationed in his country. Certainly the Security Council is not solely responsible for the resulting crisis, even if South Africa’s ultimate actions were driven by concern for its troops. And in any event this fear may not have been the South African leaders' motivation; they may have been committed to defying the ICC all along, and if so then the reported Sudanese troop movements were just al-Bashir’s way of hedging his bets.

One more question: If, in fact, South Africa’s political leaders chose to send al-Bashir back because they feared his retribution against their soldiers, what should a South African court say about this? There are important reasons for a court to rule on the legality or illegality of the government’s actions, as a vindication of the rule of law. But an American court might answer that it should say nothing at all, because this kind of geopolitical, military maneuvering is beyond the courts’ competence – it raises “political questions” rather than judicial ones. An American court might also defer to the executive’s view that al-Bashir had head-of-state immunity while attending the African Union summit; that position may be relatively unpersuasive legally but a US court might defer to it because of the executive’s special responsibilities in the field of foreign affairs. 

South African courts don’t generally accept that there are legal questions that they shouldn’t rule on, nor do they tend to defer to executive legal interpretations, and that commitment to principle is deeply admirable. But if there was ever a case for a South African court to avoid confrontation with the executive branch, this one perhaps is it. 

Customary law in the USA?

From a New Jersey paper, The Montclair Times for Thursday, Feb. 19, 2015, an article titled “Squatter’s rights case dismissed” (by Andrew Segedin, a staff writer for the paper): This article reports a lawsuit filed by a squatter who had occupied a vacant house and now sought to prohibit others from disturbing his peaceful occupation. The plaintiff says in his complaint:

Noble Drew Ali stated that ‘The Moors were living up and down the Mississippi River before the Europeans came here’ …. Whoever my ancestors were, I am today and whatever they owned I own according to specific laws of inheritance. Furthermore, under the inheritance laws this land sits on the parallel … which is sacred to my ancestors, therefore I own the before-mentioned land.

Not surprisingly, the federal court in which the plaintiff filed this lawsuit dismissed it. Apparently the property in question had been foreclosed on, and was empty when the plaintiff moved in. It’s possible that this case, seen in a broader economic lens, is an illustration of the impact of the mortgage crisis; one owner losing his home, no one else ever buying it, and finally someone else, perhaps also facing housing problems, moving in.

But there’s a special twist here: the article reports that Montclair’s township attorney says “that similar cases involving ‘Moorish Americans’ have occurred across the nation.” According to a brief filed in the case, there have been “dozens” of these cases involving the “Moorish Science Temple of America.”

What’s most striking about this, to me, is that the Moorish American argument is framed as a legal argument, invoking “specific laws of inheritance.” The formal law of the land doesn’t acknowledge these laws’ existence, and in that sense they are an elaborate fiction. But it is very interesting that those making these claims assert that they are legal claims, much as another extreme group, the “sovereign citizens,” do. It seems that in the United States today, the language of law is so powerful that even those who seek to disregard many of the duly enacted laws still present their positions as based in law too.

One more thought: how can they just make up law? Well, actually making up law has a long and continuing history. One term for this way of creating law is “customary law.” Many nations rest in part on customary law; South Africa, for instance, recognizes in its constitution that customary law is in fact law. To some extent, the entire world rests on customary law, in the form of those provisions of international law which, though never enacted by treaty or otherwise, have acquired the force of law by universal consent. So the impulse to create law is not at all unusual. And what’s oddest of all is that since customary law is the law of custom, if these invented legal provisions ever become truly customary, then they might well be law after all.

Twenty Years of South African Constitutionalism

Where I've been for the last few months -- organizing (with help from many others) this event at New York Law School, which actually began the night before the sessions listed below, with an opening reception at the Ford Foundation where my old friend (and conference co-organizer) Penny Andrews, President of Albany Law School, and I interviewed Franklin Thomas about his years of leading the Ford Foundation in supporting the anti-apartheid struggle. The conference itself was thoughtful, diverse, and exciting -- that's what I thought, anyway, and it seemed to be the view of the participants too! 

You can also see the program below on the website of the New York Law School Law Review, whose Faculty Publisher Michelle Zierler as well as the Review's Publications Manager Steven Cunningham and its student members, especially Executive Symposium and Events Editor Ashley Kerr, worked extremely hard to make this event a success. None of it would have been possible, however, without the support of our Dean, Anthony Crowell -- and of my wife Teresa! Thank to all of these people, and to everyone who was part of the workshop or worked behind the scenes to enable it to happen.  

Twenty Years of South African Constitutionalism: Program

FRIDAY, NOVEMBER 14, 2014

8:00 am–Check-in opens; Continental Breakfast available

9:00 am – 10:15 am–Introduction, Welcome and Keynotes 
Anthony Crowell, New York Law School
Stephen Ellmann, New York Law School
The Honorable Patrick Gaspard, U.S. Ambassador to South Africa
Christopher Oechsli, The Atlantic Philanthropies, Keynote AddressSouth African Constitution
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

10:30 am – 12:00 pm–Concurrent sessions

Public Interest Law in Post-Apartheid South Africa I
Steven Budlender, Victoria Mxenge Group of Advocates (by video)
Gilbert Marcus, Johannesburg Bar (by video)
Martin O’Brien, The Atlantic PhilanthropiesPanel Paper
Commentator: Carrie Menkel-Meadow, University of California – Irvine School of Law
Commentator: Joseph Oloka-Onyango, Makerere University School of Law1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Parliament as a Force for, or Against, Constitutional RightsMonica de Souza, University of Cape Town Center for Law & Society, Public participation in the Traditional Courts Bill legislative processJohan Kruger, FW de Klerk Foundation, Critique of Section 47(3) of the South African Constitution s 47(3) (removing members of parliament from office if they cease to be members of the party that nominated them)
Mark Tushnet, Harvard Law School, The difficulties of sustaining judicial constitutionalism in a dominant-party state, perhaps illustrated by the Scorpions, etc., sagaCommentator: Ian Shapiro, Yale University
Commentator: Ulysses Smith, Linklaters
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

New Conceptions of Socioeconomic Rights I
Brook Baker, Northeastern University School of Law, International Collaboration in Training on Intellectual Property and Access to Medicines: The Birth of the S. Africa Fix the Patent Act CampaignDavid Bilchitz, University of Johannesburg Faculty of Law, Socio-Economic Rights and Political RightsChristian-Junior Kabange, University of Kinshasa Law School, The South African Constitution & Socio-economic rights: has ‘justiciability’ made any difference?
Mia Swart, University of Johannesburg Faculty of Law, The South African Constitutional Court’s Understanding of Separation of Powers and the Consequences for Resource Allocation
Commentator: Muna Ndulo, Cornell University Law School
Commentator: Judit Rius Sanjuan, Doctors Without Borders
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Education and Children’s Rights IAdila Hassim, Section 27, Litigation on the right to education: a ‘textbook’ caseRelated Court Order, Related Court Order
Sarah Sephton, Legal Resources Centre (co-authors Cameron McConnachie and Elizabeth Lathlean, Legal Resources Centre), To Sit and Learn: Furniture shortages and the struggle to see the right to education realised in South Africa’s Eastern CapeRelated Court Order
Commentator: Robert Dinerstein, American University Washington College of Law
Commentator: Yoliswa Dwane, Equal Education 
Commentator: Jane Spinak, Columbia Law School
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Environmental Rights and Water Rights
Melissa Fourie, Centre for Environmental Rights, Tales from the Trenches: The Unfulfilled Promise of the Constitutional Environmental Right in South AfricaJames R. May, Widener Law (co-author Erin Daly, Interim Dean, Widener Law), At the Intersection of Environmental Constitutionalism, Teaching, and PracticeRichard Stacey, NYU Center for Constitutional Transitions, The problems in operation of seemingly well-crafted water rights legislation
Commentator: Sarah Adams-Schoen, Touro Law
Commentator: Andrea McArdle, City University of New York School of Law
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

12:00 pm – 1:30 pm–Lunch

1:30 pm – 3:15 pm–Concurrent sessions

The Legitimacy of the Constitutional Court: Popular Sentiments, Politicians’ Reactions, and Judicial Strategies I
James Gibson, Washington University – St. Louis, institutional legitimacy of the Constitutional CourtJohn Mubangizi, University of KwaZulu-Natal School of Law, The independence of South African judges: A constitutional and legislative perspectiveKameel Premhid, University of KwaZulu-Natal School of Law, The JSC’s Misguided Approach to Judicial Transformation
Commenator: The Honorable Dennis Davis, High Court of South Africa
Commentator: Ian Shapiro, Yale University
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Equality and Affirmative Action I
Mpfariseni Budeli, University of South Africa College of Law, Employment equity and affirmative actionRosaan Krüger, Rhodes University Faculty of Law, Combating racism and restoring dignity? A review of work of the Durban Equality Court 2003-2013
Commentator: Claudia Angelos, New York University School of Law
Commentator: Camille deJorna, American Bar Association
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

The Constitution and Access to Justice I
Jackie Dugard, University of the Witwatersrand School of Law, Direct access to the Constitutional CourtGeorgina Jephson, Richard Spoor Inc., Access to Justice and the Enforcement of Rights under the South African Constitution through the appropriate use of class actionsDavid Holness, University of KwaZulu-Natal School of Law, Coordinating legal aid and pro bonoservices in civil matters for indigent South Africans for improved access to justice
Commentator: Scott Cummings, UCLA School of Law
Commentator: Ian Weinstein, Fordham University School of Law
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Transnational Exchange of Constitutional Ideas
Laura Van den Eynde, Free University of Brussels, South African Constitutional Court’s Decisions as Tools for Litigants AbroadCathleen Powell, University of Cape Town Faculty of Law, Glenister and the use of international law and the treatment of governmental structure in South African constitutional lawHannah Woolaver, University of Cape Town Faculty of Law, The Influence of International law on the Constitutional Jurisprudence of South
Commentator: Ruti Teitel, New York Law School
Commentator: Mark Tushnet, Harvard Law School
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Traditional Governance
Daniel de Kadt, Ph.D. student, Department of Political Science, Massachusetts Institute of Technology (co-author Horacio A. Larreguy, Assistant Professor, Department of Government, Harvard), Agents of the Regime? Traditional Leaders and Electoral Clientelism in South AfricaThandabantu Nhlapo, University of Cape Town, Customary Law in Post-Apartheid South Africa: The Vexed Question of Cultural Diversity, Women’s Rights, “Living Law”, and Appropriate Law ReformRita Ozoemena, SAIFAC, Protecting constitutional democratic values and traditional leadership governance in SASindiso Mnisi Weeks, University of Massachusetts, Access to justice? Dispute Management in Vernacular Forums in Rural KwaZulu-Natal
Commentator: Frank Munger, New York Law School
Commentator: Joseph Oloka-Onyango, Makerere University School of Law
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Film: Odette Geldenhuys, Here be Dragons

3:15 pm – 3:30 pm–Break

3:30 pm – 5:00 pm–Concurrent sessions

Law and Political Struggle I
April G. Dawson, North Carolina Central University School of Law, The Necessity of Civics Education to Fulfill the Constitutional Promise of South AfricaEbenezer Durojaye, Community Law Center at the University of the Western Cape, Beyond Law and Policies: The Relevance of Community Participation in the Realisation of Socioeconomic Rights in South AfricaDustin Kramer, Social Justice Coalition, See A Matter of Urgency: Changing the Pattern of InequalityNicholas Smith, City College of New York, The Risks and Rewards of Vigilante Violence
Commentator: Carlin Meyer, New York Law School
Commentator: Steve Shapiro, American Civil Liberties Union
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

The Constitution and Access to Justice II
Sally Hurt, Marco Masotti Fellow, University of Pretoria, Regulation and Internal Governance of the Civil Society Sector in South Africa: The Role of Constitutionalism in Creating an Open and Democratic Civic SpaceDavid McQuoid-Mason, University of KwaZulu-Natal School of Law, Some Reflections on the Impact of the Constitution on Legal Aid in South Africa 1994-2014Mathias Nyenti, University of Johannesburg Faculty of Law, The role of access to justice in the development of socio-economic rights in SA
Commentator: Richard Abel, UCLA School of Law
Commentator: Karen Tokarz, Washington University School of Law
Commentator: Ian Weinstein, Fordham University School of Law
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Legal Education and Social Change I
Wesley Carpenter and Alicia Raymond, University of the Witwatersrand, How law schools prepare students to use law on behalf of oppressed people, while also ensuring that students learn the fundamental elements of the law that they must masterElmarie Fourie and Enid Coetzee, University of Johannesburg Faculty of Law, Constitutional values and legal education in South Africa: Shaping our legal orderLesley Greenbaum, University of Cape Town Faculty of Law, Re-visioning Legal Education in South Africa: Harmonising the Aspirations of Transformative Constitutionalism with the Challenges of our Educational Legacy
Commentator: Richard Boswell, University of California, Hastings College of Law
Commentator: Carrie Menkel-Meadow, University of California – Irvine School of Law
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Evolving Doctrines
Erin Daly, Widener Law, The limits of human dignityMark Kende, Drake Law School, The South African Constitutional Court’s Cases on Corruption and Separation of Powers: Salvation or Going Too FarAlistair Price, University of Cape Town Faculty of Law, The Evolution of the Rule of Law in South AfricaStu Woolman, Witwatersrand School of Law, The Fragile Constitution: Time, Change, State-Building and The Problem of Collective ActionCommentator: Edward Purcell, New York Law School
Commentator: Kim Lane Scheppele, Princeton University1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

The Impact of the Public Protector and the State Legal Advisor
Ntombizozuko Dyani-Mhango, University of the Witwatersrand School of Law, The Nkandla Project, the Public Protector and Power: The influence and the power of the President in the upgrade of his private residenceJonathan Klaaren, University of the Witwatersrand School of Law, The constitutional role of the state attorney’s office and the state law adviserKevin Sifiso Malunga, Public Protector South Africa, An assessment of the role of Chapter 9 institutions, in particular the Office of the Public Protector, in asserting South Africa’s transformative constitutionalism; Public Protector Statistics
Commentator: Gail Gerhart, Columbia University
Commentator: Mark Tushnet, Harvard Law School
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Business & the South African Constitution
Teresa Clarke, Chairman, CEO and Executive Editor, Africa.com. South Africa BBBEE and Labour from a Business PerspectiveOdette Geldenhuys, Webber Wentzel, Business and Human Rights
Christopher Roederer, Florida Coastal School of Law, The Role of Private Law in the Consolidation of Democracy after 20 years of Constitutional Democracy in SACharmika Samaradiwakera-Wijesundara, University of the Witwatersrand,  Business and Human Rights: to what extent has the Constitution transformed the obligations of business?
Commentator: Tamara Belinfanti, New York Law School
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Criminal Procedure and the Constitution
Andrew B. Friedman, Wikistrat, Drafting a Constitution for the Future: How can Search and Seizure predict new technology?Jamil Mujuzi, University of the Western Cape Faculty of Law, Human rights and the Implementation of the South African International Co-operation in Criminal Matters Act
Commentator: Eugene Cerruti, New York Law School
Commentator: Steve Zeidman, CUNY School of Law
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

FILM: Andrea Durbach, A Common Purpose

SATURDAY, NOVEMBER 15, 2014

8:30 am–Check-in opens

9:00 am – 10:00 am–Keynote
The Honorable Dennis Davis, High Court of South Africa, introduced by Penelope AndrewsKeynote Paper
South African Constitution
1.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

10:15 am – 12:00 pm–Concurrent sessions

Public Interest Law in Post-Apartheid South Africa II
Mark Heywood, Section 27, Does public interest litigation advance social justice?Jason Brickhill, Legal Resources Centre, Public Interest Alchemy: Combining Art and Science to Litigate for Social ChangeCommentator: Scott Cummings, UCLA School of Law
Commentator: David Wilkins, Harvard Law School (invited)
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

The Impact of Other Chapter 9 Bodies, and Commissions of Inquiry I
Heinz Klug, University of Wisconsin Law School, Separation of power, accountability and the role of independent constitutional institutionsKhulisumuzi Kenneth Sithebe, Marco Masotti Fellow, University of Pretoria, Constitutionalism and Chapter 9 InstitutionsTseliso Thipanyane, Columbia Law School (former chief executive officer, South African Human Rights Commission), Review of Key Constitutional Bodies Established to Support Constitutional Democracy in Post-Apartheid South Africa: Progress and Challenges
Commentator: Camille deJorna, American Bar Association 
Commentator: Stacy-Ann Elvy, New York Law School
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Constitutional Remedies and Enforcement
Zsa-Zsa Boggenpoel, Stellenbosch University, Can the journey affect the destination? Rethinking the way South African courts approach remedies to protect constitutional rightsFiroz Cachalia, University of the Witwatersrand School of Law, Post formalism and Judicial Review of Parliamentary Rules and Procedures in South AfricaAndrew Konstant, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), and Shayda Vance, Lawyers against Abuse, Constitutional Values and the Executive Branch
Commentator: Kim Lane Scheppele, Princeton University
Commentator: Matiangai V.S. Sirleaf, University of Baltimore
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Culture I
Noah Tamarkin, Ohio State University, Cultural Rights and Indigenous Recognition: Reburying Ancient Remains at MapungubweWilmien Wicomb, Legal Resources Centre,  Whose custom is it anyway?Michael Yarbrough, John Jay College of Criminal Justice, Very Long Engagements: Legal Consciousness and the Persistent Authority of Lobola in a South African Community
Commentator: Hannah Britton, University of Kansas
Commentator: Sean Redding, Amherst College
Commentator: Sindiso Mnisi Weeks, University of Massachusetts
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Gay and Lesbian Rights I
Eric Christiansen, Golden Gate University School of Law, Substantive Equality and Sexual Orientation: Insights and Lessons from Twenty Years of South African Constitutional Court AdjudicationGertrude Fester, Marco Masotti Fellow, Rwandan Association of University Women and former Commissioner on Gender Equality, South Africa, The Rhetoric, Reality and Limitations of the Rights-Based Approach with specific reference to LGBTI rights in SAKendall Thomas, Columbia Law School, Sameness and difference in the Constitutional Court’s sexual orientation cases
Commentator: Thandabantu Nhlapo, University of Cape Town
Commentator: Ruthann Robson, CUNY School of Law
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Film: Benedict Carton, episode(s) of Isibaya

12:00 pm – 1:30 pm–Lunch and Keynote
Gay McDougall, Fordham University School of Law, introduced by Penelope AndrewsSouth African Constitution
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

1:30 pm – 3:15 pm–Concurrent sessions

The Legitimacy of the Constitutional Court: Popular Sentiments, Politicians’ Reactions, and Judicial Strategies II
Julian Brown, University of the Witwatersrand, The Politics of Equality in the CourtroomHenok G. Gabisa, Washington and Lee University School of Law, Justice Sector Reform, Judicial Independence and a Diminished Judicial Power in Ethiopia: Lesson from South AfricaCommentator: Richard Abel, UCLA School of Law
Commentator: Stacy-Ann Elvy, New York Law School
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Law and Political Struggle II
Justin Hansford, St. Louis University School of Law, Nelson Mandela and the Lawyer as Author of Social ChangeAndre Mbata Mangu, University of South Africa, Political leadership and constitutionalism in post-Apartheid South Africa: The contribution of President Nelson MandelaEd O’Brien, University of the District of Columbia, Democracy for All and Street Law Legal Literacy Programs: Reflections after 20 Years of Democracy in South Africa
Commentator: Stephen Ellmann, New York Law School
Commentator: David McQuoid-Mason, University of KwaZulu-Natal School of Law
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

New Conceptions of Socioeconomic Rights II
Shanelle van der Berg, Stellenbosch University, Developing a Capabilities-Based Standard of Review for the Adjudication of State Resource Allocation DecisionsSaras Jagwanth, Socio-economic rights and budgets: the role of the courts in South Africa
Katharine Young, Boston College Law School, Experimentalist Constitutionalism and South Africa’s Socio-Economic Rights
Commentator: Frank Bloch, Vanderbilt Law School
Commentator: William Simon, Columbia Law School
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Education and Children’s Rights II
Warren Binford, Willamette University College of Law, Children’s rights and the SA constitution
Qingliu (Mary) Yang, Columbia Law School and Sarah Sephton, Legal Resource Centre, Breaking New Ground in Class Action Litigation: The Right to Education as ‘Immediately Realisable’Yana van Leeve, Equal Education, Mobilizing the right to a basic education in South Africa: What has the law achieved so far?
Commentator: Robert Dinerstein, American University Washington College of Law
Commentator: Richard Marsico, New York Law School
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Gender Equality and Gender Violence
Hannah Britton, University of Kansas, Localizing Rights: The Possibilities and Limits of Using the Law to Address Sexual Violence in South African CommunitiesJulia Ernst, University of North Dakota School of Law, Women’s Rights, Religious Rights, the Catholic Church and the South African ConstitutionKate Doyle Griffiths-Dingani, City University of New York Graduate Center, Sexual Violence in Social Context, the Limits of Law, the Power of PrecarityCommentator: Penelope Andrews, Albany Law School
Commentator: Sean Redding, Amherst College
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Prisoners’ Rights
Clare Ballard, Lawyers for Human Rights, The South African penal system: twenty years too slowThemba Maseko, University of South Africa, The enforcement of inmates’ right to a cultural or religious food: is it constitutional?Patricia Carole Perkins and Emily Seawell, Elon University School of Law, Human Dignity and the Evolving Standards of Decency: Segregated Housing of Prisoners in South Africa and the United States
Commentator: E. Tendayi Achiume, UCLA School of Law
Commentator: Robert Blecker, New York Law School
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

FILM: Bernadette Atuahene, Sifuna Okwethu (We Want What’s Ours)

3:15 pm – 3:30 pm–Break

3:30 pm – 5:15 pm–Concurrent sessions 

Equality and Affirmative Action II
Yonatan Fessha, University of Cape Town, The politics of ethnicity and the post-apartheid constitutional dispensation
Admark Moyo, University of Cape Town, Transformative constitutionalism, substantive equality and the role of the courts; lessons from South Africa, Zimbabwe and the USEdward Ramsamy, Rutgers University, The Elusive Quest for the ‘Rainbow’ Nation: Ethnic Particularity and National Identities 20 Years After the Fall of Apartheid
Commentator: Gail Gerhart, Columbia University
Commentator: David Oppenheimer, University of California, Berkeley School of Law
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Legal Education and Social Change IIPeggy Maisel, Boston University School of Law and Shaheda Mahomed, University of the Witwatersrand, (co-author Meetali Jain, Senior Researcher, Centre for Human Rights, University of Pretoria), Clinical Legal Education’s Contribution to Building Constitutionalism and Democracy in South Africa: Past, Present, and FutureDonald Nicolson, University of Strathclyde, Serving social justice in South Africa through community legal service: A multi-model analysis of aligning means and endsCommentator: Scott Cummings, UCLA School of LawCommentator: Barbara Schatz, Columbia Law School
Commentator: Karen Tokarz, Washington University School of Law
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Housing and Land I
Bernadette Atuahene, IIT Chicago-Kent College of Law, Was the South African Land Restitution Process Fair?: A Bottom-Up Assessment of the State’s Attempt to Address the Legacy of Land DispossessionNolundi Luwaya, University of Cape Town Center for Law & Society, Women’s land rights – the importance of local strategiesNgwako Raboshakga, ENS Africa, Housing in Alexandra: Transforming the Legacy of Decades of an Oppressive Housing Scheme
Commentator: E. Tendayi Achiume, UCLA School of Law
Commentator: Mary Zulack, Columbia Law School
2.0 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Philanthropies & South Africa (roundtable) 
Anthony Crowell, New York Law School
Dugan Fraser, Raith FoundationThomas McPartland, Chief Executive Officer, The ELMA Philanthropies
Nicolette Naylor, Ford Foundation
Martin O’Brien, The Atlantic Philanthropies

FILM: Dear Mandela

5:30 pm – 6:30 pm–Legal Education Roundtable, facilitated by Stephen Ellmann, New York Law School

SUNDAY, NOVEMBER 16, 2014

8:30 am–Check-in opens

9:00 am – 10:30 am–Concurrent sessions

The Legitimacy of the Constitutional Court: Popular Sentiments, Politicians’ Reactions, and Judicial Strategies III
Richard Calland, University of Cape Town Faculty of Law, Chimera or real – how robust is South Africa’s post-1994 Constitutional order?James Fowkes, University of Pretoria, Beyond the Bold Standard: Revising the South African constitutional canonNomthandazo Ntlama, University of KwaZulu-Natal School of Law, Transformation of the South African judiciary: A measure to weaken its capacity?Commentator: Doni Gewirtzman, New York Law School
Commentator: Mark Tushnet, Harvard Law School
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

New Frontiers in Social Rights: The Socio-Economic Rights Institute of South Africa
Stuart Wilson, SERI-SA, Commissioning the Present: Marikana and the contemporary moment
Tashwill Esterhuizen, Socio-Economic Rights Institute of South Africa (co-author Michael Clark) Remembering the Transformative Mandate: An Analysis of Twenty Years of Housing and Eviction Jurisprudence in South AfricaMbekezeli Benjamin, Socio-Economic Rights Institute of South Africa, Surviving the World Class African City: The Case of the Informal Traders of Inner City Johannesburg
Commentator: Brian Ray, Cleveland-Marshall College of Law1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Culture IIAndrea Durbach, University of New South Wales Law, Cultural Heritage as TransformationNgwako Raboshakga, ENS Africa (co-author Meetali Jain), Meaningful Constitutional Literacy to Help Build South Africa’s Culture of a Participatory and Responsive DemocracyBhavna Ramji, Probono.org, Progressive politics: reconsidering the legal approach to difference in South AfricaHlonipha Mokoena, Columbia University, Legal Selves in Question: Defining African Personhood from Colonial Times to the Present
Commentator: Benedict Carton, George Mason University
Commentator: Ida Susser, CUNY – Hunter College
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Migrants’ Rights
Alexandra Hiropoulos, John Jay College of Criminal Justice, Migrants’ Rights in Law and Practice: South Africa’s Current Migration Challenges and Adherence to Domestic and International Law
Wessel le Roux, University of the Western Cape, Post-apartheid constitutionalism and the boundary problem of democracy: The right to vote during the first 20 years post apartheidAmelia Rawhani, Advocates Group 21, Separation of powers, and the ‘powerless’
Commentator: E. Tendayi Achiume, UCLA School of Law
Commentator: Richard Boswell, University of California, Hastings College of Law
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Courts Against Corruption
Andreas Coutsoudis, Durban Bar (co-author Max du Plessis, UKZN), The Constitutional Court’s response to the prevention of corruption, with particular reference to the Allpay judgmentStephen Ellmann, New York Law School, The Struggle for the Rule of Law in South AfricaAbigail Marcus, Latham & Watkins, Broadening the Range of Incentives to Combat Corruption in South Africa

Commentator: Thandabantu Nhlapo, University of Cape Town

Commentator: William Simon, Columbia Law School

1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

10:30 am – 10:45 am–Break

10:45 am – 12:15 pm–Concurrent sessions

The Impact of Other Chapter 9 Bodies, and Commissions of Inquiry II
Michael Bishop, Legal Resources Centre, An Accidental Good: The Role of Commissions of Inquiry in South African DemocracyJanine Hicks, Commission on Gender Equality, Improving the collaboration between civil society and chapter 9 institutionsKarmini Pillay, University of the Witwatersrand School of Law, A Critical Analysis of the Role of the South African Human Rights Commission in Protecting Against Hate Speech in Public Discourse
Commentator: Muna Ndulo, Cornell University Law School
Commentator: Matiangai V.S. Sirleaf, University of Baltimore
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Housing and Land II
Achmed Mayet, Marco Masotti Fellow, and Tshepang Monare, Legal Aid, Developing the right of access to adequate housing in a transformative South African society: from Grootboom to Lwandle Residents
Brian Ray, Cleveland-Marshall College of Law, Strong Courts, Procedural Rights: How Grootboom Turned into Strong-Form Review
Commentator: Frank Bloch, Vanderbilt Law School
Commentator: Gerald Korngold, New York Law School
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Gay and Lesbian Rights II
Theodore Powers, University of Iowa, Genealogies of Justice: Law, Rights and the South African HIV/AIDS MovementRuthann Robson, CUNY School of Law, A Sentimental Journey
Commentator: Kris Franklin, New York Law School
Commentator: Ida Susser, CUNY – Hunter College
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

The State and the Independent Bench and Bar
Tom Karis, City University of New York Graduate Center (Retired), Are the Judges Biased?, chapter 7 of his book, Promoting Constitutional Patriotism in South Africa: The Constitutional Court (forthcoming)Thandiwe Matthews, South African Human Rights Commission, Beyond Affirmative Action and Quotas: The Law and Transformation of the Legal Profession in South AfricaDavid Wilkins, Harvard Law School, From Mandela & Tambo to the Executive Committee of ENSafrica: Black Lawyers, Black Empowerment, and the State of the Black Corporate Bar Twenty Years After South Africa’s Independence
Commentator: Odette Geldenhuys, Webber Wentzel
Commentator: Frank Munger, New York Law School
Commentator: Rebecca Roiphe, New York Law School
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

Access to InformationFola  Adeleke, University of the Witwatersrand, Twenty years of power contestation in South Africa; the importance of the right of access to informationLisa Chamberlain, University of the Witwatersrand, Assessing the enablers: disturbing implementation of rights of access to information and protest in South AfricaRachel Ward and Kelly Stone, South African Human Rights Commission, A Critical Analysis of the Journey of the Right of Access to Information in SA
Commentator: Jonathan Manes, Yale Law School
Commentator: Ari Waldman, New York Law School
1.5 CLE Credits (Transitional and Non-Transitional) in Areas of Professional Practice are available for this session

12:15 pm – 2:00 pm–Lunch and summing up (led by Penelope Andrews, Dennis Davis andStephen Ellmann)

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After the workshop ends, you’re invited to meet Albie Sachs, retired justice of the Constitutional Court, at a “meet and greet” at Patsy’s Pizza, 328 W. 23rd Street, 3:00 – 4:30 and to attend a showing (tickets available for purchase at http://www.docnyc.net) of a film by Abby Ginzburg about Justice Sachs and South Africa, Soft Vengeance: Albie Sachs and the New South Africa, to be shown at 4:45 P.M. at SVA Theater, 333 West 23rd Street, as part of the DOC NYC film festival.

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This workshop was made possible by the support of Atlantic Philanthropies, the Ford Foundation, theNational Science Foundation, and by generous individual gifts from Marco Masotti (in recognition of whose gift, we have named 4 workshop participants as Marco Masotti Fellows), Monica Menell-Kinberg, and an anonymous donor. We are deeply grateful to all of these donors.