Curriculum Guide · Courses

Professor DeRosa

J.D. Seminar 1151 (cross-listed) | 2 credit hours

This course will examine the substantive, ethical, moral, procedural, and practical challenges of practicing national security law in the government. Government national security and foreign affairs lawyers have significant influence on operational and policy decision-making, but generally encounter fewer external checks and less effective oversight than lawyers in other areas. Because of threshold doctrines such as standing and political question, courts address domestic law national security questions relatively rarely. There are few timely, formal checks in the area of international law either, which develops over time and by consensus and lacks a direct enforcement mechanism except in extreme cases. In addition, much of the subject matter about which national security lawyers provide advice is classified, which restricts the degree and effectiveness of oversight from Congress and scrutiny by the press and public of legal analysis. Therefore, national security lawyers, who provide advice on what are often extremely high stakes and difficult legal issues, shoulder a great deal of responsibility to carry out their roles ethically and effectively.

The course will use historical and current case studies to explore these important challenges. Students will discuss a variety of issues, including: identifying the client; the responsibility to provide balanced advice; advising on the exercise of presidential authority; the impact of secrecy on legal advice and decision-making; prosecution, litigation, and national security; finding the right balance between risk-aversion and excessive advocacy; the appropriate role of lawyers and the law in the national security policymaking process; lawyering when the law is not developed; advising on engagement with the media; and the challenges and responsibilities of lawyering during war and other national security crises.

Students will be graded on papers. Class discussion will also be considered in grading and each student will be responsible for leading class discussion at least one time during the semester.