Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
5 June 2014

Call for Papers: Conference on “Twenty Years of South African Constitutionalism”, November 2014, New York

Conference: Twenty Years of South African Constitutionalism

Call for Papers: Conference on “Twenty Years of South African Constitutionalism,” Thursday, November 13, 2014 – Sunday, November 16, 2014

We invite you to propose a paper for an international and interdisciplinary conference on “Twenty Years of South African Constitutionalism,” to convene at New York Law School, starting in the evening on Thursday, November 13, 2014 and running till midday on Sunday, November 16, 2014.

South African constitutionalism has much to celebrate after its first twenty years, but also faces acute and disturbing challenges. We will seek to understand both the achievements of past years and the difficulties that have emerged along the way. We mean to explore, as intensively as possible, the question of law’s capacity to contribute to building an egalitarian, free society in South Africa – and by implication elsewhere. You’ll see below a list of potential topics, but the conference interests are as broad as the task of building a just society, and so we welcome proposals that take up issues on or off the attached list.

Broadly, this workshop seeks to generate an interdisciplinary encounter that is both wide-ranging and firmly focused on the persistent question of what law can accomplish and how.. By bringing together a specially strong and diverse group of participants, for a sustained inquiry in large settings and small ones, formal and informal, over four days together, we anticipate that this workshop will generate an ongoing conversation about law’s connection to transformation that will be rich both intellectually and practically.

We seek to address questions of both theory and action, by bringing together insights from four broad perspectives:

  • constitutional law: to take full account of the jurisprudential challenges of developing legal doctrine, particularly doctrine for a new constitutional order
  • law and society: to look closely at the roots of legal thought in social settings and the impact of law on social action
  • legal education, in particular clinical and experiential legal education: to consider the ways that the training of future lawyers can contribute to shaping the legal order
  • public interest law practice: to bring to each conversation the experience of actual law reform efforts, and to connect the perspectives of scholars and educators with the insights of those in action “on the ground”

We hope this conference will be an occasion for South African scholars, teachers and lawyers to step back and reflect on the complex events of their own country. We see this reflection taking place in dialogue with colleagues, Americans and others, who study South Africa from elsewhere. We also see it being enriched by engagement with colleagues whose principal focus is not on South Africa but on other countries, countries whose experience will shed light on the challenges and possibilities in South Africa.

Frankly, we also see this workshop as a potential catalyst to renewed attention to South Africa here in the United States. We hope that this rekindling of interest will have potential benefits for South Africa, and Africa as well; we are confident it will also make a difference in the United States. South African constitutional law addresses the same sorts of issues as American constitutional law – but in even more complex and difficult circumstances – and American scholars, lawyers and law students can learn from South African efforts to achieve full freedom and equality. We hope, therefore, that this workshop will serve as a starting point for further teaching at US schools about law in South Africa, and that it will stimulate interest by American scholars and students in seeing and experiencing South African law and society themselves.

We are very pleased to say that we anticipate having funds with which to cover part or all of the travel and lodging costs of a number of participants. Those funds, however, are limited, and our priority will be to use them to assist South Africans and others who would not otherwise be able to attend. We also want to insure that the conference presenters and participants reflect well the diversity of both South Africa and the United States, including – but of course not limited to – the contributions of early-career scholars.

We invite you to submit a paper for the conference, by sending a one-page paper proposal and your curriculum vitae to Stephen Ellmann, at stephen.ellmann@nyls.edu, and Penelope Andrews, at pandr@albanylaw.edu, by no later than July 15, 2014. A detailed conference schedule will be available by August 22, 2014. Drafts of all papers accepted for the conference will need to be submitted by no later than October 13, 2014, one month before the conference begins; papers will be posted on the conference website so that participants can read them in advance. For participants who are presenting papers, funding support will be contingent on meeting this October 13 deadline.

Please don’t hesitate to contact any of the conference organizers if you have questions about these plans. We look forward to hearing from you.

Stephen Ellmann, Professor, New York Law School, Organizing Committee Chair, stephen.ellmann@nyls.edu

Penelope Andrews, Dean and President, Albany Law School, pandr@albanylaw.edu

Ashley A. Kerr, Executive Symposium Editor, New York Law School Law Review, ashley.kerr@law.nyls.edu

Erik Lane, Editor in Chief, New York Law School Law Review, erik.lane@law.nyls.edu


Potential conference topics include, but are not limited to, the following:

(1) The legitimacy of the Constitutional Court: popular sentiments, politicians’ reactions, and judicial strategies

(2) Courts against corruption – what can courts accomplish: the jurisprudence and the pragmatics of judicial efforts to combat government misconduct and corruption; the sources of corruption in South Africa’s transitional history

(3) The state and the independent bench and bar: professional consciousness and political crosscurrents, the processes of professional and judicial advancement, representativeness and diversity, state regulation of the profession and state intervention with the judiciary

(4) The impact of other rights-protecting institutions: the Public Protector, other Chapter 9 bodies, and commissions of inquiry

(5) Parliament as a force for, or against, constitutional rights

(6) The performance of the provinces as protectors or violators of rights

(7) Public interest law in post-apartheid South Africa: which lawyers and organizations litigate constitutional issues, which issues, for which clients, and with what success? what would strengthen this work, organizationally, financially, politically, or otherwise?

(8) Legal education and social change: how can law schools prepare students to use law on behalf of oppressed people, while also ensuring that students learn the fundamental elements of law that they must master? what role can or should clinical legal education play in preparing students for this challenge? how deeply should law schools be involved in the study, teaching and reform of lawyering skills and values?

(9) Law and political struggle: do judges undercut popular political mobilization? South African examples, and insights from elsewhere in the world.

(10) Transition: the old order’s impact on the post-apartheid legal system; truth & reconciliation; and the impact of twenty years on the role of the new order’s founding generation

(11) Global constitutionalism and the development of international human rights law: South Africa’s receptivity to and influence on these worldwide processes; the role of outsiders, such as foundations, in South African legal development

(12) The role of rights: the impact of courts’ adjudication and enforcement of socioeconomic rights on democratic governance and socioeconomic outcomes, in fields such as housing, health care, water, education and environmental protection

(13) The role of rights: affirmative action, Black Economic Empowerment, and land reform – successes and pitfalls (comparisons to US and Zimbabwe)

(14) The role of rights: encountering cultural rights and diversity in the recognition and reform of African customary law of marriage and inheritance, and of the powers of traditional leaders and customary courts

(15) The role of rights: South African recognition of gay and lesbian rights as an instance of successful, elite-driven constitutionalism

(16) The role of rights: sexual violence and the limits of law’s power to alter behavior

(17) The role of force: constitutional encounters with national security and military action (comparisons to US and Israel), and with the operations of the police


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