WHY WE ARE HERE:
A Law Professor Discusses His Difficult Return To The Classroom

By TOBIAS BARRINGTON WOLFF

Monday, Sep. 17, 2001

I returned to teaching on the day following the disaster, after having spent Tuesday tracking down loved ones in New York — an experience that many of us shared. Returning to the classroom was very difficult for me. I had to explain to myself, to say nothing of my students, what we were doing speaking about arcane choice-of-law doctrines and other matters that suddenly seemed so inapposite. I wound up spending the entire class discussing with my students the answer that I found.

What Law Students Are Really Learning

Law students are doing more in law school than learning the tools of a trade, and law professors are doing more than inducting them into a profession. Law students are learning how to become informed participants in conversations about important public issues. Now, more than ever, those students must have a sense of the civic importance of that role.

The Specter of Korematsu

If, as appears to be the case, the attack was executed by terrorists from Arabic nations, we will undoubtedly see calls for racial profiling in a number of areas — including immigration, domestic security protocols, and employment in key industries.

We have seen this before, among Japanese-Americans in the wake of the attack on Pearl Harbor. It was understandable then, and would be understandable now, to grasp for security at the expense of minority interests. And yet we rightly view the undifferentiated targeting of Japanese-Americans for discrimination, isolation and imprisonment — and the Supreme Court's 1944 decision in Korematsu v. United States, which upheld those practices — as one of the most shameful episodes of our century, even considering the extraordinary context in which it occurred.

The Specter of McCarthyism

"Cells" of terrorists, operating domestically, may become the focus of domestic intelligence and security efforts. This may be both necessary and appropriate. But it carries a terrible danger of chilling legitimate advocacy of interests associated with Arabic and Islamic communities, both here and abroad.

It is not so difficult to imagine government investigators, engaged in good-faith efforts to protect our safety, beginning to ask, "Are you now, or have you ever been, a member of a pro-Palestinian organization?" If this happens, the result will predictably be that people will become afraid to express support for Arabic and Islamic communities in public debate.

We have seen this phenomenon before, among supporters of alternative forms of governance during the McCarthy era, when "cells" of militant communists were believed to be the domestic threat. Now, we rightly view that era as one of the most damaging to free speech values in America, even considering the period of tension and danger in which it took place.

The Importance of "Technical" Law Courses

In the coming months and years, enormous financial interests will be in flux as the markets, the insurance industry, the airline industry and others react to what has happened. Individual States will quickly come under pressure to provide for and protect local interests and citizens. Difficult questions will arise about how to strike a balance between state and federal regulation; or between the protection of local or state economies and the protection of integrity and strength at the national level.

Silence Honors, But Talk Can Honor Too

There can be no question that we are entering a very difficult time — a time when tensions will be high and calls to action frequent. Our government has promised to initiate a new kind of war — a "war on terrorism." During such a time, there must be a population of Americans participating in conversations — in government, in business, in places of worship, and in private — who can provide this legal and historical context.

There must be a population of citizens who can remind us of the difficult lessons that we have learned in the past in balancing security and justice in times of crisis, and insist that those lessons be taken into account when shaping future policies. Beyond the bare question of security, this is what it really means to maintain the rule of law.


Tobias Barrington Wolff is a professor of Constitutional Law and Civil Procedure at U.C. Davis. His e-mail address is tbwolff@ucdavis.edu.

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