How to study lawyer-client meetings: from video recordings without sound?

A thought about how empirical research on lawyer-client meetings might be conducted, given that permitting a third party to be part of such a meeting risks stripping it of the lawyer-client privilege: What if these meetings were video recorded, but with no sound?

It might seem that studying a meeting without knowing what the participants are saying would be meaningless, but that isn't right. One can tell quite a lot about what's going on in an interaction without knowing any of the words being uttered. It's possible to follow the participants' body language and facial expressions; it's possible to see who interrupts whom and with what frequency; it's possible to see who speaks, and for how long at a time -- and probably more. Malcolm Gladwell, in Blink: The Power of Thinking Without Thinking (2005), reports a study finding that "[a] person watching a silent two-second video clip of a teacher he or she has never met will reach conclusions about how good that teacher is that are very similar to those of a student who has sat in the teacher's class for an entire semester." (13)

So these studies would be meaningful. Would turning the sound off do anything to preserve the attorney-client privilege? I'm not sure, but I think it would be worth looking into. It is true that a blown-up shot from the video might reveal legible words in documents the lawyer and client are looking at (as an indiscreet British spymaster recently found, at the cost of his job). It's also true that a lip-reader could probably make out what the lawyer and client are saying to each other. But every communication is subject to being intercepted, and in general we don't require lawyers and clients to take extraordinary steps against this danger in order to preserve the legal privilege protecting their conversation. So it seems to me that an argument could be made that this kind of recording (especially if done without an actual camera operator able to listen in) is consistent with lawyer-client privilege.

Probably most lawyer-client conversations, however, are not really all that sensitive; the client is not revealing dark secrets, nor is the adversary going to go to court to extract them. For the bulk of conversations, the most important effect of proposing to record with the sound off might be simply to reassure the client that his or her privacy really is being respected. That could make it easier for them to consent to the recording. So for reasons of both objective legal risk and subjective perception of privacy, the no-sound recording might be a relatively unobjectionable method of study.

Whether the reason lawyer-client meetings have been so rarely subjected to empirical study is either the problem of legal privilege, or clients' emotional sensitivity, isn't clear. Perhaps lawyers and law professors, even clinicians, just aren't very much disposed to undertake this sort of research -- for reasons that would no doubt be worth discussing in themselves. But if the reason isn't the researchers' disinclination but the reluctance of those being researched, then the no-sound recording might be a partial solution to the problem.

Objective invalidity revisited

The doctrine of objective constitutional invalidity says that when the Constitutional Court declares a law unconstitutional, what that decision means is that the law has always been unconstitutional since the adoption of the constitution in 1996. I blogged about this doctrine on June 11, 2009 and said that this doctrine could not survive the day -- not yet arrived -- when the Constitutional Court overrules one of its own earlier decisions. Even now, however, it produces practical complications, as the Court has recognized for years. In response, as Justice Van der Westhuized said for the Constitutional Court in Weare and Another v Ndebele NO and Others (CCT 15/08, decided 18 November 2008), "[t]he duty to give just and equitable relief recognises that the position dictated by the objective doctrine may not always be a feasible one in practice" (para 42).

Weare addressed the question of whether it was unconstitutional for one province, KwaZulu-Natal, to bar bookmaking by corporate entities, while it permitted bookmaking by individuals and partnerships and while the rest of South Africa permitted corporate entities to practice in this area. The answer, the Court held, was "no," a decision I agree with. Not every difference is an unconstitutional discrimination.

But the case also presented a wonderful technical complication. The KwaZulu-Natal law in question was actually an "Ordinance," first adopted by the "provincial council" of what was then Natal, in 1957. A lower court had declared the Ordinance unconstitutional. But if the Ordinance was a "provincial Act," then under section 167(5) of the Constitution that judgment would be without effect unless the Constitutional Court confirmed it. Now an "Act," it appears, is a piece of original legislation, such as a provincial legislature today would enact. The old "provincial council" would have been the 1957 equivalent of such a legislature -- so far, so good. But in 1986 (still in the apartheid era), Parliament "abolished the provincial councils and transferred their legislative authority to the provincial administrators, who were members of the executive." (para 26) When they acted, by Proclamation rather than "legislation," they were making "delegated legislation" (rules, we might say in the U.S.) rather than "original legislation" (statutes). In fact the Natal administrators did modify the statute of which the no-gambling-by-corporate-entities provision was a part, nine times (though they may not have touched this particular provision). (para 27)

That might have made a big difference to the question of whether the Constitutional Court had to review the lower court's decision to invalidate this section. A piece of delegated legislation lacks the status of being an Act, and under the post-apartheid constitution lower courts can invalidate delegated legislation without the need for the Constitutional Court to confirm their decisions. The constitution's theory for this rule presumably is that invalidating a regulation is not a disagreement with the elected representatives of the people, while invalidating an "Act" is.

But this wasn't the end of the story. Then apartheid ended, and the Ordinances of the old order were carried over to the new era, and the provinces (such as what was now named KwaZulu-Natal), with their provincial Parliaments, acquired original lawmaking authority again. In fact, the KwaZulu-Natal provincial legislature then passed legislation in this field, incorporating the old Ordinance by reference and thus continuing it in effect (para 33), and also amended the Ordinance three times, though not touching the particular provision that this case challenged.

So the upshot was that it was not clear whether an old order Ordinance which, like this one, had once been produced as an act of original provincial legislation, then became the purview of provincial administrators making delegated legislation, then became again the subject of original provincial legislation -- was or was not a "provincial Act." The Constitutional Court decided that it was, an entirely reasonable decision.

But this ruling automatically meant, by virtue of the doctrine of objective invalidity, that any other similar Ordinance that might have been held unconstitutional by a lower court since 1996 without the Constitutional Court's having reviewed and approved the decision had not been validly invalidated! Apparently no Ordinance invalidation case had been brought to the Constitutional Court prior to this one, and so it is possible that there are a number of these invalidly invalidated laws. Moreover, the Constitutional Court's rules provide time limits for litigants seeking confimation of a lower court judgment of invalidity, and those time limits "will almost certainly have expired" by now. (para 41)

What to do? Here is whether the Constitutional Court's authority under section 172(1)(b) of the Constitution -- its "duty," as Van der Westhuizen J refers to it in para 42 -- to "make any order that is just and equitable" in connection with a decision on a constitutional matter comes in. The Court notes that "[c]itizens and the state alike may have treated the orders as binding, it may now be years since the orders were made, and the ordinances might have become irrelevant. New legislation may have replaced them." (para 44) Van der Westhuizen J concludes: "In light of these considerations, no general rule is made as to court orders in connection with the constitutional validity of ordinances that have not been confirmed by this Court. Should the special circumstances of a specific case mean that any injustice or uncertainty does result, parties are of course free to approach this Court or the High Court to seek relief." (para 45)

This was certainly a wise decision. But it is worth noting that it was a decision that would have been unnecessary but for the doctrine of objective invalidity. Absent that doctrine, the earlier decisions would have remained good law, since they were court judgments that were never appealed and so had long since become final. It was only because the doctrine of objective invalidity meant that a decision in 2008 automatically ran back, unqualifiedly, to 1996 that any question about those decisions between 1996 and 2008 arose. This is a case, then, in which a legal theory generated quite unnecessary practical complications.

It's also a striking illustration of two very different aspects of South African jurisprudence. The question of whether an Ordinance is an "Act" is a matter resolved by quite painstaking attention to legal detail. Once that is decided, the resulting question of what to do about the implications of the doctrine of objective invalidity is decided by broad, pragmatic adjustment. The courts have the authority to operate in both ways.

In general, it seems to me that the courts' ability to render principled constitutional decisions and then guide their implementation by practical adjustment is very helpful and appropriate, and has been used to very good effect in South Africa. In most cases, moreover, the kind of reasoning at issue in these two stages of adjudication probably is broadly similar: the judgment of unconstitutionality rests on broad constitutional weighing and the implementation decision takes comparably broad considerations into account. But occasionally, as here, the judgment of unconstitutionality involved quite technical analysis -- and over time there will surely be many relatively technical constitutional questions, given how long and detailed South Africa's constitution is. (For another example, see Kruger v President of the Republic of South Africa (CCT 57/07, decided 2 October 2008.)

I wonder just how wide the gap between the technical analysis of such issues and the practical implementation judgments that follow should be. In principle, I think it might be desirable for South African jurisprudence to evolve so that these two forms of reasoning converge: the technical legal analysis becomes more infused with practical considerations, and the pragmatic adjustments become more regulated by legal rules. There is, I think, some inconsistency in applying technical precision to the determination of the rights and wrongs of the parties before the court, including Presidents and Parliaments, while the courts themselves effectuate their decisions by practical adjustments to the necessities of events. The inconsistency, moreover, is not simply a technical disparity, but may instead have broader significance: in principle, all actors should be subject to similar legal requirements via rules that provide similar degrees of formal precision and functional flexibility. This isn't an absolute or a precise principle, but it seems fair to say that it is a part of the basic idea of the rule of law.

It is not shocking that current South African law reflects such a disparity. South Africa's courts have been engaged in constitutional adjudication for only about 15 years, and they wield broad authority over a tremendous range of controversial issues. They are, it seems to me, still in the process of determining just how to wield their own power. So this post is a suggestion for a direction this process might take in cases to come.

On being immoderate

Watching the John Adams miniseries (I know, long after it came out) -- I'm surprised to realize something that of course was true: the people who made the American revolution were not moderates. It was hard, really hard, for many of the colonists to decide they wished to be independent. Doing so was full of risk, not least the danger of being hung for treason. For many the natural thing, which the new Congress tried in 1775, was to petition the king for a redress of grievances. British rejection of these efforts gradually pushed people towards independence. But so did men like John Adams, who argued passionately in favor of tangible support for the Massachusetts militia in its early battles with the British. Abigail Adams was equally committed, though she could express her desires with more diplomacy than John sometimes managed. But these are not, as a group, the takers of sober counsel, the careful managers of complex situations. These were revolutionaries. It makes one remember that wisdom and tempered judgment are not always the path to the world we want. Perhaps that is because few people achieve expertise in changing the world; most of us, as we age, become experts in managing in the world as it is. So it's the non-experts, full of passion and dreaming of a world that does not yet exist, who can turn the old order over.

"The Hemingses of Monticello"

Fresh from completing my colleague Annette Gordon-Reed's powerful book The Hemingses of Monticello, a book that deserved to win prizes and did:

This book succeeds at the same time in making the evil of slavery palpable and in presenting us with a Jefferson who, within the bounds of the slave system from which he massively profited, is not a bad man. In his relations with the Hemingses -- Sally, his mistress, and the many other members of the same family who lived in slavery at Monticello -- he seems to have always sought to avoid distress and disturbance. He wanted the work, the service and the comfort his slaves provided him, but he wanted the slaves to feel content with their lot too. He was a man who could persuade Sally and her brother James to return with him from France, where they could have claimed their freedom, to slavery in Virginia -- and he honored the promise he made to Sally in the process, that he would free the children they had together. He created an outpost of relative contentment within what he understood was the tyranny of slavery, though this outpost did not survive him. He failed to die a solvent man, and the results of that insolvency were harsh for his white descendants and harsher for his slaves, who were sold to pay the debts of his estate.

What's appalling is not that he mistreated his slaves, for it appears he did not abuse them (though his overseers may have, especially with slaves in less privileged spots than Monticello itself). Rather, what's appalling is the sheer power he exerted over them. He arranged a family of slaves around him for his comfort, shaping many of them from their childhoods to prepare for the roles he envisioned, and as Annette Gordon-Reed emphasizes, they could not leave. Most unnerving of all, he was related to the people he owned. It is hard, as Annette also emphasizes, even to conceive of the nature of family within slavery, from our perspective today, but it is necessary to try. The blood relations between Jefferson's family and the Hemingses were elaborate -- Sally was the half-sister of Jefferson's deceased white wife -- but of course the plainest blood relation was with the children he had with Sally: Jefferson owned his children.

The Jefferson who emerges from these pages is not an incomprehensible assembly of self-contradictions, nor a repellent human being. It seems likely that the Hemingses genuinely cared for him, at the same time that they had to reckon with his sweeping power over them. He is, in a particular sense, a moral monster -- a man with personal sensitivity towards, and moral principles about, others, who lived in and lived off a vile social system.

Merafong Demarcation Forum -- participation and rationality in South African legislation

Merafong Demarcation Forum, decided in June 2008 by South Africa's Constitutional Court, continues that Court's effort to decide how closely it should regulate South Africa's legislative processes. It raises some profound questions about how democratic legislatures should function, and how courts should shape their functioning -- questions I want to identify but don't expect to fully resolve.

The case grows out of Parliament's enactment of legislation to eliminate what were called cross-border municipalities -- local government units whose boundaries crossed the lines between provinces (as if, say, New York City was located partly in New York State and partly in New Jersey). It's probably not surprising that these local governments proved administratively problematic, and no one seems to have disagreed with the general idea that they should be eliminated. The problem was, which single province should a two-province municipality be put in? Draft legislation before Parliament said that Merafong, till then partly in Gauteng province and partly in North West province, should become completely a part of North West. The great majority of the residents of Merafong seem to have felt that they should be in Gauteng (the province in which two of South Africa's leading cities, Johannesburg and Tshwane [formerly Pretoria] are located), rather than in the more rural, less wealthy North West. They said so at public hearings and in demonstrations. (See para 33 of Justice van der Westhuizen's judgment, and para 135 of Deputy Chief Justice Moseneke's dissent).

The public hearings were held by the legislatures of Gauteng and North West provinces, to meet their duty -- established by earlier Constitutional Court decisions -- to provide an opportunity for public participation before the provinces cast their votes on the proposed legislation in the National Council of Provinces, the upper (and less powerful) house of the national legislature. This obligation had been found in section 118(1)(a) of the Constitution, which provides that: "A provincial legislature must -- (a) facilitate public involvement in the legislative and other processes of the legislature and its committees." As a result of the public opposition expressed at the hearings, the Gauteng legislature decided to seek an amendment of the pending national legislation to keep Merafong in Gauteng. Unfortunately, it turned out -- so the negotiators learned -- that they could not propose an amendment and that their only option, if they wanted to insist on their view about where Merafong should be, would be to exercise a provincial veto on this part of the new bill. This the delegates did not want to do and so, in the end, late in 2005, Gauteng decided to vote for the bill, including its provision moving Merafong to North West. (See paras 36-37.)


These events raised two constitutional questions. One was whether the Gauteng provincial legislature, when it decided not to do what it had learned from its public hearing that the people wanted, thereby necessarily violated its duty to provide proper opportunity for public input into the legislative process. The answer was no. Every member of the Constitutional Court agreed, in effect, that legislatures do not have to do what the people have told them they want. This decision puts an outer boundary on popular influence on legislative choices outside of elections, and says that South African legislatures, though they provide for participation, are not forums for direct democracy. It is important, and also seems right. Representatives need to be able to make judgments, in light of popular views but not always bounded by them; otherwise, the nation loses the benefit of the special expertise that its legislators hopefully acquire about the affairs of the state.


The only member of the court who felt that the public participation requirement of the constitution had not been met was Justice Sachs. He didn't suggest, any more than the other members of the Court, that the popular will expressed at the hearings had to rule. (See para 293 of his judgment.) But he did maintain that when the legislature changed its position, it had a duty to "report back" to the community about that change.

The effect of a report back would presumably have been to galvanize community opposition, and so to make it more likely that the legislature would have felt more pressure to defer to community wishes and/or to find some alternative, previously overlooked, to defuse the crisis. Justice Sachs' position might have led the politicians to new insights; it might also have prolonged the decisionmaking process and placed legislators in acutely difficult political situations. Justice van der Westhuizen argued, however, that "[t]he possibility of the Portfolio Committee being persuaded anew by views of which it was already aware, is indeed small." (para 59) Justice Sachs was more optimistic (para 299), but of course we will never know for sure.


Would Justice Sachs' alternative have been better? The aftermath of this decision was not good; one article reports that the result of the decision to move Merafong was that parts of Merafong were "reduced ... to chaos," and that "protests have continued virtually unabated." In this case, at least, it seems arguable that anything that postponed or altered this decision would have been desirable as a practical matter. Whether his approach would have been better for Parliamentary process in general is a much harder question, taking us into a field -- the design of legislative bodies -- that no doubt calls for its own expertise.

Perhaps an even harder question -- and one more within my range -- is whether this interpretation of the relevant constitutional language was the best one. That question isn't just about whether a legislative process including not only required public hearings but also "report backs" would be preferable to one where legislators are freer to make decisions on their own. It's also about whether the "report back" system should be read into the constitution if -- as seems to me likely -- it was not a system the constitution's drafters actually had in mind. It is not illegitimate to find in a constitution meaning that the drafters did not specifically intend (or so I would argue -- the point can be debated), but it is possible that on a point of political process as debatable as this one, a judge should be disposed not to innovate. So the other members of the Constitutional Court appear to have felt, at least on this score.


But those abstractions of constitutional theory may miss the most important point: that political life in South Africa has proved less responsive and less responsible than many of those who shaped the new constitution hoped, and therefore, perhaps, what the drafters did not think of is exactly what might now be needed. Should the justices, faced with problems the drafters did not foresee, seek to honor the drafters' broad intentions (for democracy, for justice) by finding solutions to those problems in constitutional language not specifically meant to require those results?

This is another very big question. But in this particular case it seems to have an answer. In 2009, Parliament approved another amendment to South Africa's constitution, this one returning Merafong to Gauteng province. It took years, but not an infinite number of years -- and in the end the political process corrected its own mistake. It's surely preferable, in principle, for politicians to work their own way clean, rather than to have the country come to expect only the courts to stand for principle. Here, that is what happened.

Sort of. Because that self-cleansing came only after the case had gone to the Constitutional Court, where 4 of the 10 justices would have struck down what Parliament had done. Perhaps the dissents (I've focused here only on one, by Justice Sachs) helped push the government to correct a decision that seems to have profoundly unwise. So even if the majority justices were right to uphold the constitutionality of that decision, the dissenters may also have helped cause it to be repealed.

Ossian Sweet and the power of client narrative

We often worry that clients' voice is lost in the process of representation. The story that gets told, though not false, is a story keyed to the elements of the case, or to some other persuasive need, rather than to the client's understanding of the narrative of his or her life. But my co-author Ann Shalleck, in her chapter on "Narrative Theory and Narrative Practices" in our new book (Lawyers and Clients: Critical Issues in Interviewing and Counseling (2009) -- see my previous post for the book announcement) emphasizes that clients' own narratives change over time, and in part as a result of the influence of the lawyer. Sometimes those changes are benign. Sometimes they may not be.

In his fascinating book Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age (2004), Kevin Boyle tells the story of Dr. Ossian Sweet and his trial. Dr. Sweet was an African American physician, living in Detroit, who in 1925 made the decision to move with his family into a house in an all-white neighborhood. The results were disastrous. A white crowd swelled around his house on each of his first two nights in it; the second night, members of the crowd began hurling stones at the house, and as the stones fell someone (or someones) in the house fired into the crowd, wounding one person and killing another. Dr. Sweet and the 10 other people in the house were all arrested and charged with murder.

As Boyle tells the story, Dr. Sweet emerges as a conflicted man, who was almost overcome by anxiety as the mob surrounded his house. He seems not so much to have decided to risk everything for the sake of his right to purchase this house as to have been unable to back down from the purchase as the extent of the peril he and his family faced became clear. None of this is to his discredit; the fact is that he did exercise his right to purchase a house anywhere he could afford, and he determined to defend the house against attack, and he did so. (He did not, however, fire any shots himself.)

Boyle tells us that after their arrests, Dr. Sweet and most of the others initially told the authorities, falsely, that they weren't in the house that night to defend it but rather were just waiting for dinner when the trouble began. (Boyle, at 173-74.) Apparently it was Clarence Darrow, perhaps accompanied by Walter White of the NAACP (which had made this case a cause), who persuaded the defendants to tell the story more fully. In Boyle's words:

"For the longest time, Darrow sat with Ossian and the others, listening to them recount the evening on Garland Avenue, gently pressing them to admit to the shooting rather than cling to the unlikely stories they had concocted the night of the police interrogation, quietly reassuring them that the case could be won even if they had fired into the crowd, bridging the chasm between the famous white lawyer and ten desperately afraid colored men with his remarkable gift for empathy." (244)

Along the way, however, Dr. Sweet's understanding of his own story changed. "[H]e began to see the road he had followed to Garland Avenue as much straighter, his steps more purposeful, than they had actually been." (247) Perhaps Dr. Sweet was influenced by his sense of what a jury might respond to, and perhaps he was moved by the praise that his supporters offered for him. I don't mean that he falsified any concrete fact of his story, just that he came to see it as a story of his own manifest heroism.

That may have been fine for the two trials, at the first of which Dr. Sweet responded to cross-examination "with a dignity so fierce it was inspiring" (290), and at the second of which "he seemed to straighten in his seat as the questions were asked.... Now the fear was gone, replaced by unbending pride, the terrified little boy of Bartow given way to a New Negro willing to risk everything in defense of his family, his home, and his principles." (327-28) And the trials ultimately ended in complete legal victory for the defendants.

Unfortunately, it was not fine for Dr. Sweet as a person. Between the two trials, Dr. Sweet and his wife, Gladys (also a defendant), went on a tour planned by the NAACP. A pastor accompanying them said that "Each day he [Dr. Sweet] got more egotistic." (306). The same man said that "I averted no fewer than four scenes ... [and] abated five quarrels between the Sweets." (306-07)

Perhaps all would have been well in time. But as it turned out, Gladys Sweet and the Sweets' one-year-old daughter Iva contracted tuberculosis, very possibly from the jail in which they were confined after the arrests, and both died of it. (344) Dr. Sweet lived in the house he had bought for many years, but his life went awry in multiple ways, and at the age of 64 he shot and killed himself. (344-46) Would he have handled better the challenges he faced if he had not come to see himself, at one point in his life, as a more unambiguously heroic man than he (or almost anyone else) could be? We don't know. But the book leaves the strong impression that the case, the cause, became so great that it changed even the individuals whose cause it was, and not entirely for the better.

*******************

For me, reading Arc of Justice raised another, more personal question. In 1925, my grandfather, James Ellmann, was a young attorney practicing in Detroit and raising a family along with his wife Jean. He would go on to be active in civil rights issues, but the first trace of that activity that I've found so far on the web is in the mid-late 1930s. There's no sign that he was involved in any way in the Sweet case. I can't help but think, though, that he must have been inspired by this celebrated, dramatic case, involving local people and the most prominent lawyer of the age. So I hope that one of the effects of this case -- which brought Dr. Sweet freedom but not happiness, and helped launch the NAACP's legal challenges to racism even while Northern cities' residential segregation intensified (342-43) -- was to play some part in my grandfather's political development, and so my father's, and so mine.

Shameless self-promotion: "Lawyers and Clients: Critical Issues in Interviewing and Counseling" now published!

I'm very happy to return to this blog with a book announcement -- the result of a lot of hard work by Bob Dinerstein, Isabelle Gunning, Kate Kruse, Ann Shalleck, and me. All of us hope you'll like it!

Lawyers and Clients: Critical Issues in Interviewing and Counseling
Stephen Ellmann, New York Law School
Robert D. Dinerstein, American
Isabelle R. Gunning, Southwestern
Katherine R. Kruse, UNLV
Ann C. Shalleck, American
ISBN 978-0-31423-531-2

Lawyers and Clients: Critical Issues in Interviewing and Counseling will be published in October, is available for spring 2010 classes, and is now available for viewing on West's Law School Exchange. Going beyond the basics of interviewing and counseling, this book examines practical and theoretical challenges lawyers face with clients. Each chapter explores a critical issue in interviewing and counseling, such as developing connection across difference; dealing with atypical clients; using engaged client-centered counseling; bringing narrative theory to bear on lawyer-client encounters; seeking truth; pursuing moral dialogue; discussing law; and understanding how expertise affects practice. The book investigates these issues primarily through detailed analysis of multi-layered lawyer-client conversations, arising in a variety of contexts, which invite the reader to consider and critique the lawyer’s choices. A key theme is “engaged client-centered lawyering,” which emphasizes the importance of client choice and the impact of lawyers on clients, and affirms lawyers’ ability, through attending to the evolving contexts of clients’ lives, issues of technique, ethics, and law, to achieve open-hearted and wise engagement with clients.

Join Law School Exchange today to view a complimentary digital copy of this text and to take advantage of the site's many other features. Law School Exchange allows law school faculty to share, digitally publish, and find scholarship and teaching materials in collaboration with an online community of peers.

Review Copy: Lawyers and Clients: Critical Issues in Interviewing and Counseling will be sent to all full-time law professors teaching interviewing and counseling. Other professors who would like to review this textbook may request a complimentary copy by emailing their account manager at westacademic@thomsonreuters.com. When placing an order with your bookstore, please refer to ISBN 978-0-31423-531-2.

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"End-of-life" discussions and lawyer-client communications

A remarkable article in the NY Times not long ago, by Anemona Hartocollis, "At the End, Offering Not a Cure but Comfort" (August 20, 2009, starting at page A1).

First, it reports that "Dr. Nicholas Christakis, an internist and social scientist at Harvard who has studied end-of-life care, has found that doctors are generally bad at making prognoses. The better they know a patient, the worse they are at prognosticating, possibly, Dr. Christakis has theorized, because they view death as a personal failure. Most predictions are overly optimistic, he has found, and the sicker the patient, the more likely the doctor is to overestimate the length of survival." (Page A16) Without having seen Dr. Christakis' study, it seems to me that another factor here may simply be empathy -- the better the doctors know the patients, the more they feel for them and the more they hope they'll survive and the more their predictions are shaped by their hopes. If accurate predictions are what we want here -- far from a self-evident proposition, as the article reflects -- then this would be a reason for doctors not to know their patients so well. It would, similarly, be a reason for lawyers not to know their clients so well.

Second, the article vividly illustrates the central role that communication without explicit words may play in some end-of-life discussions. The article tells the story of a patient with "an uncertain future" as a result of a recurrence of her cancer. Her doctor asks a range of questions, beginning with "What are your biggest concerns?" and moving on to "What's your understanding of the status of the tumor?" That question leads to an exchange in which the patient, having heard that treatments are available that can achieve some results, says "But there is no way of knowing it, right?" The doctor replies, "There are no established cures. Think very carefully about what treatments you do and don't want to have as these issues arise." The article says that the patient then "fired back with her wish to be 'alive again'"; that is, she replied ""It's more or less, I want to be alive again. Going here, going there. My husband, I want to be able to do things for him." And the doctor then asks, "What gives you strength?" and this question leads to discussion of shopping and the patient's husband teasing her about dressing up to watch TV at home. (The dialogue is recounted twice, with different details, at A1 and A16.)

In all this, the doctor never delivers a prognosis (the article says that he "had been called in to tell her the bad news: she was sicker than she realized, and the progrnosis did not look good"), and in fact the patient dies -- less than four months later -- without ever having been "told ... directy that she was going to die." Why not? The doctor felt that the essential precautions had been taken to protect her, through the appointment of her husband as a health care proxy, and that she had signalled to him that she wanted to "focus on the details of her everyday life, rather than a desire to foresee the future."

It's clearly part of autonomy for a person to know her fate as well as it can be known. But it also seems clearly part of autonomy for a person to decline this knowledge. The problem is that this is knowledge that is hard to explicitly decline when it is explicitly offered. So doctor and patient need to proceed by indirection. The patient does not say, "Don't tell me" and the doctor doesn't say "Would you rather not know?" Instead, the doctor asks the patient what her concerns are, and when the concerns she articulates have to do with everyday living, the doctor infers that she wants to focus on the elements of her life in her remaining time rather than on how much that remaining time is. If that decision does her no concrete harm, there's every reason to honor it -- except that there remains inescapable uncertainty about whether it was in fact her decision.

The article's account of this patient's grim final months seems to reflect that doctors continued to try to fight her cancer, rather than turning solely to "palliative care," though this isn't entirely clear. It would have been much more troubling if they had taken the conversation I described above as an authorization to provide only palliative care thereafter, since that course of action could very easily have done the patient concrete harm, defined as shortening her life. A patient might very reasonably choose that course, preferring not to endure the rigors of heroic treatments, or her health care proxy might make the same decision, but for the doctor to make the decision without the approval of the patient or the person she's chosen to speak for her would be hard to square with autonomy.

But if the doctors continued to fight the cancer, based on the requests of this patient, it must be said that the patient made those requests without explicitly knowing the best available answer to a relevant question, namely how long she had. (Her husband may have known, but the article seems to indicate that he didn't take over decisionmaking until almost the very end.) It's possible to argue that the likely prognostications would have been so uncertain and so error-prone that they wouldn't have had any relevance, but I doubt this. The problem with the information isn't that it would have been totally irrelevant, but that its degree of relevance might have been much less than its impact on the patient and on her thoughts and feelings. The doctor felt the patient was telling him that this was so, and that he was following her guidance. He may very well have been right. But, again, he could not ask her in so many words, nor could she answer in so many words. The critical communication had to take place implicitly and indirectly.

End-of-life discussions are far from the standard fare of doctors or lawyers. But I wonder how many critical pieces of information may also pass, and perhaps must pass, between lawyers and clients by similarly uncharted paths.

It's also hard not to think that the emotions that affect doctors' erroneous prognostications will also affect their assessments of when their patients wish to hear those prognoses -- and that the same will be true for lawyers. The particular palliative care physician at the center of the Times story wears "coolness" as "his armor," and seems disinclined to attempt prognoses in terms of days or weeks anyway, but surely the effort to respond to death with coolness itself affects what a physician hears his patients saying. So would a more emotional engagement with the patients. There is no entirely objective position from which to have conversations like this. Perhaps there is, in truth, no entirely objective position from which to have any conversation with a patient or client.

"The Clinical Year"

On the question of how to bring law schools and lawyers together in the work of educating law students for the practice of law, I've recently posted online a short article I published in spring 2009 in my school's law review, the New York Law School Law Review. The piece is called "The Clinical Year." Here's the 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."

You can download the full text from my Social Science Research Network page.

Legal education and the limits of resources

If we start from the premise that students learn better if they have the opportunity to work closely with a faculty member than if they do not, we immediately face the problem of scarcity: how can a relatively limited number of faculty members engage on an individualized or small-group basis with a large number of students? There are many possible answers, but no simple ones.

We could, for example, double the number of faculty, but only by either doubling the cost of law school or halving aggregate faculty salaries. If we chose to double the cost of law school, in turn, we could either double tuition or find other revenue sources -- but it is hard to believe that our society wishes to double its investment in legal education, by whatever mechanism.

We could keep the number of faculty constant, but double the amount of teaching that we do, but only by reducing something else that we do by the same amount; unless that "something else" is of no value (and just to avoid being misread, I do think that scholarship has value!), reducing it will be a cost.

We could find ways to impart the knowledge and understanding currently conveyed in classes by some more efficient means that required less of faculty members' time, thereby freeing up faculty time for more individualized teaching; but it's not clear to me that there are more efficient means for helping large numbers of people to learn and work with law than our current Socratic classes. This doesn't abandon the original premise that students learn better from working closely with a faculty member; our large classes may be ideal for teaching up to a certain point, but at that point another, more individualized approach may be needed to help the students go further.

I've put all these in extreme ways, to be sure. There may be ways to make some valuable changes in each of these three respects (perhaps a subject for future posts). While legal education is often said to be a conservative institution, law schools have in fact developed more small-group, practice-related education over the past 30 years -- this is what the clinical legal education movement has been about -- and it's turned out to be quite possible to move in this direction without up-ending our institutions. Though we have not gone as far as many (myself included) would like, we may well be able to go further, and to do so by a relatively organic process in which this form of education gradually spreads as both existing and new faculty find it meaningful and worth carrying out.

But I wonder if we also need to "broaden the frame." Law school lasts only three years for full-time students. Put differently, full-time students normally go to school for 6 semesters, each with 14 weeks of classes, or 82 weeks of classes in all -- just over a year and a half of in-class instruction. That really isn't a great deal of time. It seems very likely (and there's some survey evidence to confirm) that much of what students learn in their law school years that prepares them for practice they are learning from their part-time or summer jobs, and that much of what newly admitted lawyers are actually doing is learning on the job. These observations suggest that we should try to understand our students' education as a process that continues in between classes and after graduation. If law schools can contribute to their students' out-of-class education as well as their in-class learning, they may be on the path to broaden the frame and the effectiveness of their students' preparation for practice.

Apprenticeship and accreditation

This post, as you'll see, is not about South African law specifically but about legal education (another of my main professional interests, which I hope to discuss more in the future). I'll start with a reasonably modest proposition: if legal education should be a more complete apprenticeship for practice than it now is (the central argument of the Carnegie Foundation for the Advancement of Teaching's recent study of law schools), then it might be a good idea to eliminate those accreditation rules that block students from engaging more directly in apprenticeship while in law school. There are a number of these rules, and there may be good reasons to retain some or even all of them. Moreover, they are by no means absolute bars to apprenticeship experiences. But they share the characteristic that they divide legal education away from the legal profession itself, and so the logic of apprenticeship suggests they should be reexamined. For example:

Standard 304(c) requires 45,000 minutes of attendance in regularly scheduled class sessions at the law school, out of a total of 58,000 minutes of all sorts, for graduation. Using a 50-minute hour, this requirement calls for 900 hours of classroom study; assuming 14 hours per credit, the result is 64 credits of classroom study out of the 83 credits required for graduation. Obviously this simply doesn't leave very much room for nonclassroom study -- especially since a variety of activities, including moot court and law review, typically claim some of the nonclassroom credits. (In-house clinic work, however, can be counted towards the 45,000 minutes of classroom attendance.)

Standard 304(f) bars students from being "employed" for more than 20 hours per week in any semester in which they are taking courses totaling more than 12 class hours. It is striking that there is no such limit on, for example, students' work on a law review. This rule is especially troubling because it is so significantly paternalistic; while restricting students' work hours may encourage students to actually engage in their classes, to the benefit of others, the principal impact seems to be to tell each student what is good for him or her. Paternalism in education is not necessarily out of place, but this particular rule -- which bars students from too much of an experience that may actually be educational (as an apprenticeship), and that certainly defrays the cost of law school -- not only constrains students based on what it claims is good for them but may not be right in its claims. If students disregard it, its main effect may be to teach them to dissemble. Its exact impact, moreover, is unclear and could be quite startling. The term "employed" is not defined; if it includes work in an externship placement, or in a mandatory pro bono activity, or in a volunteer position, then the impact on student choice and experience would be even greater than if the provision applies only to paid work.

Standard 305 permits credit for nonclassroom study, for example in externships. The number of credits is limited by Standard 304, since these credits don't fall within the 45,000 required classroom minutes. In addition, Interpretation 305-3 bars granting credit to students for work for which they are paid. Clearly this Interpretation presses students to choose between earning income and participating in externship programs designed by law schools to have educational value (more educational value, by assumption, than simple employment would have -- though Northeastern's co-op program, and the theory of "ecological learning" that supports it, raise some questions about this assumption). The Interpretation also implicitly suggests that where students earn income for their work they are not being educated. Nothing could be more contrary to the ideal of lifelong learning that law schools aspire to impart to their students.

This Interpretation also makes it harder for students to earn the money to cover part of the cost of their education, and it likely makes it harder for students to invest in their placements the numbers of hours that would enable them to become more valuable members of those legal staffs. It's also possible that potential employers, though they undoubtedly get a benefit from having free externs under the current system, would be more willing to invest resources in educating students on the job if the students, by virtue of being paid, were encouraged to work enough hours to make that investment more likely to pay off.

Standard 306 permits distance education, but not for more than 4 classroom credits for a student in a term or more than 12 overall. Those limits mean, it would seem, that distance learning can be an adjunct to classroom learning, but not a substitute. Whatever the merits of that choice in terms of comparing the pedagogical value of a distance learning hour to a classroom hour -- a question now being examined by various innovators, including my New York Law School colleague Michael Perlin -- the impact of restricting the role of distance learning is to limit the degree to which students can make law school classroom study an adjunct to intensive out-of-class learning through apprenticeship experiences (at least for students who are not enrolled in a part-time program).

There are larger issues, to be sure. For instance, it might be argued that the provisions I've cited do not undercut educational apprenticeship, because that apprenticeship should be provided primarily within the law school itself, rather than in large or predominant part through work/learning experiences elsewhere. In that case, the rules to focus on would be those that constrain, or do not sufficiently support, the offering of clinical experiences to students. Those rules do deserve attention, but I think the rules I've mentioned here also need reconsideration, because in the long run it seems to me that an effort to provide apprenticeship education that relies solely on law schools' internal resources is unlikely to be successful. I hope to say more about that, and other related questions, in future posts.

Some thoughts about "engagement"

Still thinking about the remarkable Residents of Joe Slovo case:


In mandating engagement between the authorities (two responsible government officials and a government-created company) and the residents, the Court must walk a fine line. What exactly must each side do?


First, they must act "reasonably and in good faith," as Justice Sachs puts it (par 407). Justice Sachs in the same paragraph quotes this injunction from Olivia Road: those facing eviction must "not content themselves with an intransigent attitude or nullify the engagement process by making non-negotiable, unreasonable demands. People in need of housing are not, and must not be regarded as a disempowered mass. They must be encouraged to be pro-active and not purely defensive. Civil society organisations that support the people's claims should preferably facilitate th engagement process in every possible way." As a matter of law, one can imagine the elaboration of a body of principles and rules that explain what conduct is reasonable and in good faith, and what is, instead, intransigent or otherwise unreasonable. As a matter of practice, it seems the Court hopes that people "on the ground," such as "civil society organisations," will help to guide the process and to bring all sides to the table and to agreement or at least mutual respect. No doubt the Court would much prefer this practical accommodation to a fresh series of legal disputes, now focused on the elements of proper engagement.


Second, what if -- despite reasonable efforts on all sides -- the parties still disagree? The Joe Slovo decision makes clear that if agreement cannot be reached, the evictions that the authorities sought (and that the Court approves, after imposing a set of conditions meant to make the evictions comply with both the PIE statute and the constitution) will go forward. The residents, Justice Sachs notes, "state that engagement can only be meaniangful if the parties meet as equals without the eviction order hanging over them." (Par 402). This, however, the Court rejects. Justice Sachs writes, "It is important to note that the order of this Court requires meaningful engagement in relation to the stage the process has now reached. This does not envisage re-opening the basic modalities of the upgrading and relocation scheme." (Par 405).


Justice Ngcobo reasons similarly, saying: "What must be stressed ... is that the process of engagement does not require the parties to agree on every issue. What is required is good faith and reasonableness on both sides and the willingness to listen and understand the concerns of the others side.... Mutual understanding and accommodation of each others' concerns, as opposed to reaching agreement, should be the primary focus of meaningful engagement. Ultimately, the decision lies with the government. The decision must, however, be informed by the concerns raised by the residents during the process of engagement." (Par 244; emphasis added.)


Consistently with these views, the actual order shaped by the Constitutional Court -- an order whose detailed specification of the elements of protecting the residents in the process of eviction in itself attests to the justices' full "engagement" with the residents' plight -- requires the residents to leave the Joe Slovo Informal Settlement according to a 45-week schedule annexed to the order, unless the parties through engagement agree on different dates within 20 days from the date of the Court's decision. (Paragraph 7, sections 4-7). After that, the order directs the authorities "to engage with the affected residents in respect of each relocation that is to take place," at least one week prior to the scheduled date for the relocation; this engagement's focus is on how, rather than whether, to carry out the relocation, though no topic is ruled off limits. (Paragraph 10, section 11.)


Though the justices' attitudes to the residents' claims of lawful status varied dramatically, reflecting very different views of the relative weight of traditional legal interpretation and constitutional reconstruction, all were united in their concern for the residents. The order ultimately approved by the Constitutional Court provided the residents with many protections that they had not been able to secure from the authorities or from the lower court. Nevertheless, the Constitutional Court unanimously approved an eviction order -- in itself a painful and even ironic step in a South Africa trying to overcome the heritage of apartheid, in which "forced removals" were a notorious feature. In doing so, the Court deferred to the government's view that the Joe Slovo area could not be upgraded while the residents remained on the land, though the government's own housing policy had endorsed "a phased in situ upgrading approach [i.e., without relocations] to informal settlements, in line with international best practice" (par 364). Moreover, the Court made clear that engagement, important as it is, is circumscribed; a failure to agree would not block the evictions but instead would mean they went forward.


The Court's decision reflects the hope that engagement will still be meaningful to those facing eviction even though they do not have the power to block the evictions themselves. Whether such engagement will be viable seems uncertain; it may be that when disagreement has become as sharp as it was in this case (where residents at one point had burned tires to block a major highway running by their homes), it is too late for engagement to bring people back together. But perhaps it is not too late -- and it surely is worth the effort to try.

The Court, in any event, had no real alternative, if it believed, as it did, that the government's basic program was a reasonable exercise of its discretion in meeting its constitutional duty to provide housing. One could quarrel with this assessment, but the unanimity of the justices' decision on this score suggests that the Court felt -- reasonably, it seems to me -- that a contrary decision would have invaded the core policymaking discretion of a democratically-elected government.

The relocations had to be upheld, or the residents (and other residents in the future) would have a veto that might benefit neither themselves nor others waiting for housing. Thus Justice O'Regan writes that "a consideration that to my mind weighs heavily in the balance is that is not only the occupiers who are affected by the plan. Thousands of other households have already co-operated with the respondents [the government authorities] in the hope that their co-operation will hasten the building of the housing project and result in their receiving permanent housing." (Par 303). Justice Sachs makes a similar point, saying that the plight of these other households is "highly relevant ... to the justness and equity of requiring residents who are stalling development to accept temporary relocation." (par 398) It seems fair to read in these comments some measure of judicial impatience with the remaining residents.

The Court's response was not, however, to disregard the residents' concerns. Instead, it sought to uphold the program while restoring the link between those carrying out the program and those who were the program's subjects. The goal is to recognize the residents as people while also recognizing the rights of the whole of South Africa's people to make binding decisions. This is not an easy matter, but it is the right way to go.

The constitutional duties of the people

In the United States we rarely speak of citizens or residents of the country as having enforceable constitutional duties, either towards each other or towards the government. South Africa's constitution, by contrast, explicitly declares that "[a] provision of the Bill of Rights binds a natural ... 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." (Section 8(2).) While this is obviously vague, it's clear enough on the basic point -- that individual people with no connection to the government ("natural persons") may be constitutionally obliged to respect each other's constitutional rights.

In Residents of Joe Slovo, Justice Sachs develops the idea that individual people may also have duties to the government. The proposition that evictions needed to be preceded by "engagement" between the government and those it wanted to evict had been advanced in an earlier case, Occupiers of 51 Olivia Road and Others v. City of Johannesburg and Others, decided by the Constitutional Court in 2008. There the Court focused on, to use Justice Sachs' phrase, "the interconnectedness of procedure and substance" and reasoned that "'meaningful engagement' between the occupiers and the City" was "a major pre-condition for determining whether an eviction order would be just and equitable" under the applicable statute, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, often referred to as "PIE" and enacted as Act 19 of 1998. (Residents of Joe Slovo, par 338). Justice Sachs goes on (at par 407) to recall that the 51 Olivia Road Court also emphasized "that the process of engagement would work only if both sides acted reasonably and in good faith."


Here, Justice Sachs places these ideas in the framework of a broad conception of the concept of citizenship. He writes that the Residents of Joe Slovo case "expands the concept of citizenship beyond traditional notions of electoral rights and claims for diplomatic protection, to include the full substantive benefits and entitlements envisaged by the Constitution for all the people who live in the country and to whom it belongs. At the same time it focuses on the reciprocal duty of citizens to be active, participatory and responsible and to make their own individual and collective contributions towards the realisation of the benefits and entitlements they claim for themselves, not to speak of the well-being of the community as a whole." (Par 408).


What is the constitutional source for this reciprocal duty of citizens? Justice Sachs' judgment offers support for three possible answers to this question.

The first, and most evident, is simply that if the residents will not engage, the government cannot engage with them. Requiring engagement appears to be a central response of the Court to its recognition that cases like this one cannot be resolved by holding one side right and the other wrong. The Court nevertheless must address the disputes that come before it, and it has turned to the engagement of and between the parties as a critical element of finding resolution. Section 172(1)(b) of the Constitution gives courts power, in deciding constitutional matters, to "make any order that is just and equitable," and ordering mutual engagement can be seen as an exercise of this remedial authority. I think, however, that Justice Sachs is offering a response to these cases that goes beyond just an articulation of remedial methods.

The second possible answer is that the residents' tenure on the land -- their constitutionally based right of temporary occupancy -- incorporates a duty to play their part in the government's efforts to address the housing crisis by upgrading the housing in Joe Slovo. "By its nature," Justice Sachs writes (in a somewhat different context) at par 387, "the programme imposed a duty on the residents to cooperate." A slightly different argument is that the residents actually agreed to this condition: "Once the residents had embraced the Project, they implicitly undertook the obligation to allow it to work." (Par 386.) There was, of course, nothing like a signed contract to that effect, and I am not certain how fully any given resident actually understood or consciously agreed to the contours of his or her right to reside in Joe Slovo, but the idea that a constitutionally-based right comes with constitutionally-based limits makes good sense. On this argument, the duty to engage or to cooperate or to allow the program to work is an implication of the right of access to housing in section 26. It might be said that the right of access to housing binds each resident under section 8(2) "to the extent that ... it is applicable" -- that is, that each resident must contribute to helping achieve the community's right of access to housing. "The achievement of a just and equitable outcome required an appropriate contribution not only from the municipal authorities but from the residents themselves." (Par 407)

The third possibility is that the duty comes from the nature of human dignity. Section 10 of the Constitution declares that "[e]veryone has inherent dignity and the right to have their dignity respected and protected." Justice Sachs writes that the Court has recognized that governments' "duties extended beyond the development of housing schemes to treating those within their jurisdiction with respect .... Justice and equity require that everyone be treated as an individual bearer of rights entitled to respect for his or her dignity." (Par 406). But the residents themselves "should be discouraged from regarding themselves as helpless victims, lacking the possibilities of personal moral agency. The tenacity and ingenuity they have shown in making homes out of discarded material, in finding work and sending their children to school, serves as a tribute to their capacity for survival and adaptation.... They had a duty to show the same resourcefulness in seeking a solution as they did in managing to survive in the most challenging circumstances." (Par 407; I've omitted from this passage the sentence from the same paragraph that I quoted in discussing the second possibility, the section 26 roots of this duty, above.) Here it might be said that each resident has a constitutional duty to act with the dignity that section 10 secures. Perhaps section 7(2), which requires that "[t]he state must respect, protect, promote and fulfil the rights in the Bill of Rights," applies to this extent to each citizen as well, again by virtue of section 8(2)).


Does this last argument mean that the constitution imposes on each citizen a duty to protect his or her own dignity (and, perhaps, other qualities)? It isn't immediately clear why a constitution should tell people to protect their own dignity; one might say that people should be free to act without dignity, as they may be free to act without prudence, or without concern for their own safety and health. Those who choose to act in such ways may be unwise or even immoral, but perhaps they are entitled as free citizens to make such choices. But that may not be the ultimate tenor of South African constitutionalism. Whatever the rights of individual citizens acting in isolation, Residents of Joe Slovo is concerned with the fate of an entire community, and with a housing program meant to benefit not only the current residents of that community but also former residents who already left to facilitate the government's program, and nonresidents -- living in other difficult circumstances -- who hope for housing in the new homes to be built. In this context, the duty of each resident to act with dignity, by contributing his or her ingenuity and support to the overall enterprise, is not a matter of individual autonomy but of community well-being. Though Justice Sachs does not use the term here, this understanding of the individual as protected by but also responsible to a community seems consonant with the African concept of ubuntu, which was explicitly invoked in South Africa's first post-apartheid constitution and can be understood to remain a part of the underlying conception of the constitution now in place.


All that said, the exact dimensions of the citizen's (or, presumably, the noncitizen resident's) duties under sections 10 (dignity) and 26 (housing) remain to be explored in cases to come. Fitting duties and rights together in a way that honors both is no small task, and the constitutional text -- which does not explicitly refer to the duties now being discerned by the justices -- offers little guidance. There will be many issues to debate in future decisions.

Constitutional Property Rights in the "Residents of Joe Slovo" Case

This issue dealt with whether, and on what terms, residents of an "informal settlement" on government land near Cape Town could be evicted as part of the process of developing new housing for poor South Africans. The eight justices who ruled on the case all agreed that they could be evicted, and all insisted on considerably more substantial rights for those being evicted than the trial court had provided.

The justices sharply disagreed, however, on whether the residents had ever been "lawful occupiers" of the land in question. Even if they had (as five justices felt), the lawfulness of their occupation came to an end when the government sought to evict them as part of its housing program -- but the justices felt that the question of whether the occupants of the land were on the land lawfully in the first place was an important question about the status of landless people in South Africa, even if the answer did not make a direct difference to the outcome of this case.

Broadly speaking, the justices disagreed about whether there had or had not been consent from the city of Cape Town (the owner of the land) to the occupants' living there. Justice Yacoob, joined by two of his colleagues, maintained that a city can only consent by a formal resolution, and that consent at common law was a product of an agreement between the party seeking or receiving consent and the party giving it -- and found none of this present. Other justices contended that the pattern of action by the city -- which had been aware of the residents' presence for many years, had negotiated with them on various issues, and had provided substantial infrastructural support -- indicated that in fact the City had given consent.

The "broader consent" approach itself seems to have departed considerably from the strict provisions of prior property law. But the most dramatic proposal, advanced in detail as one thread of Justice Sachs' opinion (also for three justices, including himself), seemed to go even further. Justice Sachs maintained that the City had given consent, but he did so partly on the ground that it would have been "manifestly unreasonable," and hence unconstitutional under South Africa's constitutional right to housing [discussed more below], for the City "[t]o have refused the families the right to erect their temporary shelters on that land." (paragraph [hereafter "par"] 354) Arguing that "[a]ny inferences to be drawn from the conduct of the [City] Council should ... be based on the assumption that at all times it was aware of, and seeking to comply with, its constitutional and statutory obligations to the community" (par 346), Sachs concluded that the families who had moved on to the City's land had a "right to enjoy relatively undisturbed occupancy" there (par 359). (Deputy Chief Justice Moseneke concurred with Sachs, and developed a similar argument of his own, see pars 148, 154.)

As he put it, this right "was neither a real right as understood by common law principles of land law, nor a contractual right as created in terms of the common law. Rather it was an authorisation specific to its context, granted in terms of public law considerations enabling the residents to reside lawfully on the land for an indeterminate but terminable period" (par 359).

This is a dramatic reconceptualization of property, certainly deserving the term "transformative" that Justice Sachs embraces (par 344). At the least, it suggests that governments' decisions about land and residents of land will be interpreted through a powerful constitutional lens, so as to ensure that the meaning of those decisions is, or is made to be, consistent with constitutional requirements as those come to be understood. At the most, it suggests that section 26 of the South African constitution (which guarantees everyone "the right to have access to adequate housing" and requires the state to "take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right") has created a new category of property rights -- rights of the poor to the use of unoccupied government land, rights of such users to government infrastructural support during their use, rights to "engagement" with the government if they are to be evicted (I'll discuss "engagement," and the duties it imposes on residents as well as government, in another post), but nevertheless not (as all justices agree) rights to avoid being evicted when eviction is reasonably deemed necessary as part of the provision of housing rights for all.

Exactly how far such a right might extend remains to be seen. It may well be that the Court will never mark out its exact dimensions, and that the very nature of this right is to remain conditional and incompletely defined. But there are issues that might arise? For example, in South Africa constitutional rights can, depending on circumstances, apply to regulate the conduct of private actors as well as government bodies. Could there by circumstances in which a private landowner is constitutionally obliged to permit homeless people to move on to his or her land? Or could there be a point at which residents have exercised their constitutional right of occupancy for so extended a period that it acquires greater definiteness -- to the point, perhaps, that they could only be evicted as part of a government housing program if they were guaranteed return to the land after the program's new construction is complete? (The desire to return was a very important theme of the Joe Slovo case, but the question of an absolute right to return was not adjudicated.) And to what extent might other constitutional socioeconomic rights provisions similarly oblige a government to support the self-help of destitute people? It seems inevitable that the contours of this new constitutionally-based right of residence, if it is embraced by the full Constitutional Court, will have to be further articulated in cases to come.

Just back from two fascinating weeks in South Africa. One of the most striking features of the current scene there is the series of demonstrations, some accompanied by lawbreaking or even violence, around "service delivery" issues. In one recent instance, according to Helen Zille, the leader of the largest South African opposition party, the Democratic Alliance, people who had been assigned quite large plots of land for future houses, but had had to wait a long time to receive the government funds with which to build, had in the meantime permitted other people to move into their "back yards." Now the government money has come, the original recipients of the lots are ready to build, and they want to evict the backyarders. The backyarders in turn are demonstrating. Justice Sachs had similar dilemmas in mind when he wrote, in his judgment in Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Constitutional Court, CCT 22/08, decided 10 June 2009), that "[t]his is not a matter in which formal legal logic alone can solve the conundrum of how to do justice to the one side without imposing a measure of injustice on the other.... In many circumstances, instead of seeking to find a totally 'right' or 'correct' solution, the judiciary will be obliged to accept the intellectually more modest role of managing tensions between competing legitimate claims, in as balanced, fair and principled a manner as possible." (Paragraphs 332 - 33). (On this and other scores, Residents of Joe Slovo is a remarkable case, which I'm going to talk about in coming posts.)



But as intractable as such problems seem, what's also remarkable is the efforts of dedicated people to address them. So another recent story discusses the efforts in South Africa to treat the increasing number of people suffering from drug-resistant TB. South African laws permit, essentially, locking such people up -- but that response generates many problems of its own, not least that people suffering from the disease are hardly likely to present themselves for treatment if the result will be their involuntary confinement. So now South Africa is trying a new approach, in which the patients remain in their homes, and case workers thread their way through the shanty towns of South Africa to meet and assist individual sufferers -- so far, it seems, with success. Celia W. Dugger, "Khayelitsha Journal: New Effort to Fight TB in South Africa," N.Y. Times, July 28, 2009.

The goals of training lawyers in a constitutional state

If the task of law schools is to prepare lawyers to join their country's legal system, then we need to ask what the virtues of lawyers in a constitutional state are. Broadly, the answer is that they are comparable to the virtues of judges in a constitutional state, which I’ve been exploring in other posts.

This is in a sense just an application of the general principle that we train lawyers in the skills of judges -- as in the extensive focus, in US law schools, on the study of the legal opinions of appellate courts. That focus is overdone, because lawyers do a lot besides reasoning about law and shaping plausible arguments in light of past precedents and authority, but these skills are obviously important to law practice. Lawyers also need these skills in order someday to become judges, since we draw our judges primarily from the practicing profession.

But as described so far, all of this can be just training in legal reasoning. Law students are expected to learn to argue either side of a proposition. They employ arguments of many sorts, from parsing of texts by "canons" of interpretation to broad propositions of policy or legal purpose. All this is valuable but it is, by itself, training in technical skills rather than in the work in which those skills are employed.

What case study alone does not give is responsibility for the well-being of a person. Judges have this responsibility, but their responsibility is to all the parties before them, and ultimately the entire nation. Lawyers apprentice in responsibility to all by taking responsibility for individual clients. But it would be odd if that apprenticeship consisted in taking responsibility for one client, with indifference to all other people – this would be training in responsibility for others on one hand, and in irresponsibility on the other. In fact, as officers of the court, lawyers also have some recognized responsibility to the law and the nation. Exactly how much responsibility they have to those other than the client can be debated -- but it is not zero.

Bill Simon, in his excellent book The Practice of Justice: A Theory of Lawyers’ Ethics (1998), argues that lawyers are engaged in exactly the same business as judges. Every day, as he points out, lawyers in effect make law, or at least shape the legal culture and the effective reach of law, by the advice and assistance they give to clients. So, Simon argues, lawyers should only give the advice and assistance that is consistent with justice – just as judges should only render just decisions. This doesn’t mean that either lawyers or judges should simply do what they think would be best; both are under institutional constraints, such as the obligation to abide by precedent or to defer to democratic lawmaking, and lawyers may be under more constraints than judges, who explicitly have the authority to interpret and in some cases to make law.

I might not characterize the role of lawyer or judge quite as broadly as Simon would. For Simon, there ultimately are few if any legal rules fixed by their past articulations either in judicial opinions or in legislative or constitutional enactments. Instead, almost any proposition derived from a literal reading of a legal rule may be modified or resisted on the basis of principles, such as equality or liberty, immanent in the law. This may be right, as a statement of how to handle extreme cases (e.g., to interpret the Fugitive Slave Laws in the years before the US Civil War so as to have no meaningful effect, however contrary that would have been to the intent of those who enacted them). In most cases, however, I think the claims of “the law as written” are substantial, and the process of interpretive reshaping of the past is rightly gradual and respectful rather than avulsive. Simon might well agree with these qualifications, and view them as incorporated –- or at least incorporable –- in his approach.

But I would agree that the lawyer, like the judge, must at least take account of justice as he or she sees it, while also honoring the claims of the law as written. That means that each lawyer, in each case, has some responsibility to consider what the justice of the case is. That consideration is valuable, both as a path to limiting the injustice that the lawyer and her client may do, and as training in the broader responsibility for justice that the lawyer may undertake as a judge (or a legislator).

All of which is to say that law schools need to prepare law students for a practice of law in which they take responsibility for considering the justice of their actions on behalf of clients. The next question is, how?

I’ll have more to say about this, but an initial point, which other readers of Simon such as Kate Kruse have emphasized, is that lawyers do not make law by themselves. Instead, they play their part through interactions with their clients, and the clients – as members of the national community – play their part in law-shaping as well. So the training the lawyer should get in responsibility for justice needs to be a training in responsibility for justice shared, to the degree appropriate, with his or her client.

On how to do all this, more to come.

The doctrine of "objective invalidity"

The idea of an objective order of constitutional value seems connected to the South African doctrine of "objective invalidity." As explained in Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/04, 30 September 2005) (the "declaratory relief" decision that accompanies the main New Clicks judgment), this doctrine holds that if a statute is unconstitutional, it has been unconstitutional since the adoption of the new Constitution or, if the statute was enacted after the constitution's adoption, then since the date of enactment.

As a matter of theory, the doctrine of objective invalidity says that the Constitution's meaning never changes. Its interpretation may change, certainly, as judges develop over time their understanding of what the Constitution declares, but these are not the changes in the Constitution's meaning itself -- just in the judges' perception of it.

At some point in a constitution's history, this theory must become untenable. A law enacted in the United States in 1796, for example, may turn out to be unconstitutional when appraised in 2009, but it doesn't really make sense to say that it in fact was unconstitutional from 1796 on -- since two centuries of affairs have been arranged on the basis of its constitutionality. It's too late to unscramble those eggs.

This isn't news to South Aficans, of course. As a practical matter, as the New Clicks judgment makes clear, the "inexorable effect" of this doctrine is readily mitigated in South Africa -- perhaps more readily solved than comparable problems in the US might be -- by the Constitution's grant of discretionary power to courts to limit the retroactive and even to some extent the prospective effect of judgments of invalidity.

But there is another theoretical implication of this doctrine that in the end may be more important. In principle, the doctrine of objective invalidity implies that the meaning of the Constitution -- the actual, true meaning, not just the judges' imperfect perception of it -- cannot change. A law could not truly be constitutional at one time, but later become unconstitutional because the constitution's own meaning changed. (I'm not referring to changes by actual amendment of the text, by the way; presumably with those, the moment of objective invalidity is the date of the adoption of the constitutional amendment. My focus is on changing meanings of an unchanged text.) It must follow, in principle, that a change in the values or circumstances of South African society cannot produce a change in constitutional meaning -- except by formal amendment.

One can imagine such a legal world. Probably Justice Scalia would argue that this description in fact embodies the correct understanding of what a written constitution does, and he'd have John Marshall in Marbury v. Madison, the founding case of US constitutional law, to cite in support. But I think that if the terms of a written constitution are more or less permanent, then over time their meaning simply must and will change, because meanings from decades or centuries ago gradually become inaccessible, inapplicable and likely unpalatable as well. Our framers didn't know this, it seems to me, because they had not had the experience of being part of a nation governed by a more or less permanent text over the long term; they started that process, but we are the ones who've seen its evolution.

One solution would be not to have a more-or-less-permanent constitution; with frequent amendments, textual provisions could be kept up with the times. But this solution I think is worse than the disease, because it would mean that fundamental guarantees are at any moment subject to impulsive rewrite. The genius of a written constitution isn't that its meaning doesn't change, but rather that its meaning doesn't change impulsively. The relative gradualness of the judicial development and revision of constitutional meaning is an important protection against loss of the hard-won protections a constitution is meant to secure -- even though sometimes judicial evolution isn't gradual.

All that said, South Africa may not be at the point where judicial interpretation inevitably, insensibly, begins to take over from original consensus. Not much time has passed since the Constitution was approved in 1996 (or since the adoption of the interim constitution -- the first post-apartheid constitution -- and democratic elections in 1994). But just as South Africa's courts have in only 15 years adjudicated a tremendous range of claims of constitutional right -- essentially covering in 15 years the ground that has occupied the US Supreme Court for two centuries -- so the process of judicial creation of constitutional meaning is likely already under way. Indeed, even in the slower-paced early years of US constitutional history, it's probably fair to say that John Marshall had embarked on this process as well, despite his emphasis in Marbury on the permanence of the meanings inscribed in the written constitution.

Where does the "objective, normative value system" come from?

If South African constitutional interpretation rests on an "objective, normative value system," it is important to understand how that system is to be discerned. The answer, given by the Constitutional Court in its first two decisions, was to adopt "an approach which, whilst paying due regard to the language that has been used, is 'generous' and 'purposive' and gives expression to the underlying values of the Constitution." S v Makwanyane and Another 1995 (3) SA 391 (CC) para 9.

Quoting with approval from a Canadian decision, R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321, 395-96, the Constitutional Court indicated that "this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and larger objects of the Charter [or Constitution] itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter." Makwanyane, para 9; S v Zuma and Others 1995 (2) SA 642 (CC) para 15.

To this the Court added in Makwanyane (para 10) the guidance that a provision of the Bill of Rights (Chapter 3 of the South African Constitution) "must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of Chapter 3 of which it is part. It must also be construed in a way which secures for 'individuals the full measure' of its protection." (footnote omitted)

I think it makes sense to say, at this moment in South African history, that these sources can guide judges to an "objective, normative value system." That's not to say that this value system is so precisely structured that unanimity is inevitable; it isn't. But it is reasonable to view the Constitution as embodying a pretty strong consensus about many of the issues facing the newly democratic South Africa -- and that consensus, essentially, is the objective, normative value system.

Two points are striking about this. The first is that the objective, normative value system is enacted -- not just through words, to be sure, but through the history and background that help give meaning to the words chosen. In this sense, South Africa, which suffered bitterly during the apartheid years because of the imprimatur that legal positivism was said to give to every enacted law, no matter how repellent, remains a positivist legal jurisdiction -- it has a pathbreaking constitution because it enacted one.

The second is that the constitutional consensus, like any consensus, must break down over time. Circumstances change, and over time the questions the constitutional adopters actually considered resemble less and less the issues their successors encounter. Just as important, people change and so do their perspectives. Within quite a short time, I think, people may come to conclude that values they hold call for different concrete conclusions than they formerly thought they called for. In the United States, for example, commitment to equal protection found renewed force for African-Americans in the 1950s, then grew to encompass women in subsequent decades, and now seems far along in extending its reach to gays and lesbians -- all without a word of new constitutional text explicitly enhancing the rights of any of these groups (in fact, despite the defeat of the Equal Rights Amendment that would have created textual protection for women).

It seems to me, in other words, that inevitably, over time, the normative value base of South African constitutional law will gradually detach itself from its basis in original, enacted intentions. As it does so, will it find a new "objective" foundation?

Wild talk and the rule of law

As is well known, ANC Youth League president Julius Malema has said some remarkable things. For example, to a Youth Day public rally, "We are prepared to die for Zuma. We are prepared to take up arms and kill for Zuma."(quoted in Rapule Tabane, "Top brass tackles ANC Youth League," Mail & Guardian Online, Aug 29 2008). ANC secretary general Gwede Mantashe reportedly called judges "counter-revolutionary" (though he denied this," and was quoted as saying, "He [Zuma] is the president of the ANC [....] You hit the head, you kill the snake, When there is that attack on him, it is a concerted attack on the head of the ANC. Everybody says it is an innocent attack on him. We will know that it is an attack on the ANC." ("ANC shrugs off Mantashe's stance on judiciary," Mail & Guardian Online, Jul 11 2008).

The obvious question is how much rhetoric of this sort can come from powerful or prominent leaders without undermining the rule of law in South Africa. That question is already somewhat out of date, since the crisis over legal challenges to Jacob Zuma's political prospects is over. Moreover, early indications in Zuma's presidency suggest that he does not want to prolong the constitutional tension with the judicial branch (see "Parliament names JSC members," Mail & Guardian Online, May 26 2009) -- and that's very much to be welcomed. But the question now posed is whether the effects of such rhetoric will dissipate over time, or whether the seeds sowed by these words continue to grow. No one really knows, and surely the answer isn't already fixed; it depends, instead, on what the next words spoken are, and the next.

On deciding the case of the search of Jacob Zuma

Last July South Africa's Constitutional Court decided the question of the legality of a set of searches of Jacob Zuma -- now the country's President -- and others, searches directed at gathering evidence to convict Zuma of corruption. The Court upheld the searches by a 10-1 vote -- with both judgments (the majority and dissenting opinions) carefully and dispassionately reasoned. (Thint (Pty) Ltd and Others v. National Director of Public Prosecutions and Others, CCT 89/07, decided July 31, 2008.)

It is remarkable enough for a court to have to rule on issues affecting the potential criminal trial of someone in position to become President of the country. What made this case most remarkable, however, was that while the Court was deliberating, John Hlophe, a judge of the High Court (the trial court of general jurisdiction in South Africa) visited the chambers of two members of the Constitutional Court, allegedly -- that is, as alleged in a complaint filed by the justices of the Constitutional Court! -- in an effort to improperly influence the Court's decision. The justices filed a complaint with the Judicial Service Commission (JSC), the judicial disciplinary body in South Africa. The High Court judge filed his own complaint and also sued the justices in court. In short, a total mess.

In the midst of this the justices of the Constitutional Court had to finish deciding the search case itself. In the words of the majority judgment by Chief Justice Pius Langa (paragraph 6):

"All the members of the Court ... have considered their position in the light of the events mentioned above and their responsibilities as Judges of this Court. We are satisfied that the alleged acts that form the basis of the complaint to the JSC by Judges of this Court have had no effect or influence on the consideration by the Court of the issues in these cases and in the judgments given. It is recorded in the statement of complaint that there is no suggestion that any of the parties in these cases have had anything to do with the alleged conduct that forms the basis of the complaint by the Judges of the Court. The issues relating to the complaint have accordingly been kept strictly separate from the adjudication process in these cases. It is however important to emphasise that the cases have been considered and decided in the normal way, in accordance with the dictates of our Oath of Office and in terms of the Constitution and the law, without any fear, favour or prejudice."

I believe the justices were entirely correct in concluding that they could still judge the case before them fairly. To say this, however, is to say quite a lot about the role of emotion in judging. Recent arguments over "empathy," in connection with the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court, might suggest that somehow judges are supposed to decide without emotions. That can't be. How could it be, when neurological investigations are telling us that values cannot be held and applied unless they are given mental valence by emotional foundation?

But once we agree that emotion has a role in judging, the question is, which emotions and how much of them? The members of the Constitutional Court surely felt many strong emotions as a result of the events that led them to file a complaint with the Judicial Service Commission. Those emotions can't have altogether dissipated, since the fracas over those events did not end (and is not over today, in June 2009). Even without this extraordinary feature, the case would have prompted emotion on its own, involving as it did the fate of a potential President, hence ultimately the well-being of the country itself.

When the members of the Constitutional Court concluded that they could fairly decide the search case, therefore, they were not saying that they were unemotional -- which would have been to say that they were inhuman. What they were saying was that their emotions were properly cabined.

What does it mean to "properly cabin" -- while still feeling -- one's emotions? This might not be such a hard question if the only emotions judges felt were "nice" ones -- profound attachment to constitutional values, for example. But the feelings people, including judges, have are more complex and ambivalent than that -- yet judges, with all their human complexity, must render fair decisions.

I don't think we yet have a clear pyschological account of what it means to be an emotional, yet fair, decisionmaker. (We did have an account of how to be a fair, but unemotional, judge -- that is, to adhere always and only to the law -- but that account collapses once we acknowledge that decisionmakers aren't unemotional, and also that the law judges are adhering to is to a substantial extent something they themselves must make as they decide the cases that come before them.)

Some part of what makes the "emotional, yet fair, decisionmaker" is probably which emotions he or she feels most strongly; the judge with a passion for fairness is much more likely to be fair than the judge with a passion for revenge. Some part of it is probably also how the judge judges himself or herself; the judge who recognizes his or her impulse towards revenge is much more likely to handle that feeling well than the judge who denies its existence while embodying it.

Beyond both of these, some part is, I think, a capacity for objective judgment. By "objective" judgment I don't mean judgment somehow from outside the bounds of one's society and its many predispositions and assumptions; none of us can get that far outside ourselves.

But some people are better at resolving conflicting claims than others are. Part of that is probably a distinctive emotional ability -- empathy, to return to that currently-controversial quality, an empathy that extends to every claimant, not just those (whoever they are) whose claims seem most in line with the judge's own inclinations. To be able to hear and understand is to go a long ways towards being able to consider and evaluate. This might be called the capacity to be open-minded.

But there is still the task of evaluation. It seems to me that objectivity in evalution, of the sort humans can achieve, is an ability to regulate one's own thinking. It's not easy to understand how this ability could exist, since it seems that the stream of consciousness (and unconsciousness) flows on, largely as it will. But we know that people say, and quite routinely, things like "I really don't want to do such-and-such, but I think it's the right thing to do." Those statements reflect that we are capable of sorting among our own thoughts and feelings, and concluding that some are entitled to greater weight than others. Objectivity in law, then, is the ability to guide one's own thoughts towards the issues posed by the law rather than those generated by other claims upon us.

South African law reflects a belief in this objectivity, a stronger belief than much current legal theory might embrace. Justice Ngcobo in his Thint dissent says, as the Court has said before, that "our Constitution embodies an objective, normative value system." (Paragraph 375) I think that judges can be open-minded and objective (in the sense I've described) even if the law itself is changing, over time, in ways that make judges (and citizens) the ongoing creators as well as recipients of its value system. But this takes us towards the question of the nature of law, and that small matter is a question for another post.