The Autonomy of Law

Law is an autonomous sphere of human activity that serves no master other than justice. We value law for that very reason and celebrate it by proclaiming that all must bow to the rule of law. In recent years, Latin America, along with the rest of the developing world, has shown a renewed interest in law. To some extent this rule of law revival, as one author has described it,1 is fueled by the market-oriented reforms that are a product of the development policy known as neoliberalism. The proponents of neoliberalism have sought to forge a link between that development policy and law, but in my mind there is no intrinsic connection. To insist upon one would deny the autonomy of law and ignore the fact that end of law is justice, not economic growth

Hong Kong Democracy

Throughout the second half of the 20th century, we have witnessed the end of the empire, not just ofthe British, but ofall the major powers. Th e process of decolonization has been diverse and varied, as any world-historic process should be. Yet the outcome ofthat process has had a remarkable singularity: the colonies have emerged as independent sovereign nations. History took a different turn with Hong Kong. On July 1, 1997, at the end of aninety-nine year lease , Britain returned Hong Kong to China

Against Settlement

In a recent report to the Harvard Overseers, Derek Bok called for a new direction in legal education. He decried the familiar tilt in the law curriculum toward preparing students for legal combat, and asked instead that law schools train their students for the gentler arts of reconciliation and accommodation. He sought to turn our attention from the courts to new voluntary mechanisms for resolving disputes. In doing so, Bok echoed themes that have long been associated with the Chief Justice, and that have become a rallying point for the organized bar and the source of a new movement in the law. This movement is the subject of a new professional journal, a newly formed section of the American Association of Law Schools, and several well-funded institutes. It has even received its own acronym-ADR (Alternative Dispute Resolution)

Imprisonment Without Trial

The Constitution is a broad charter of governance. It establishes the institutions of government and places limits on their exercise of power. For the most part, the Constitution speaks in broad generalities, and over the last several hundred years many principles have been developed to give specific content to these generalities. Some of these principles, like the one requiring separation of powers, are inferred from the general structure of the Constitution. Others, like antidiscrimination or its alternative, the anti-subordination principle, are rooted in some specific provision such as the Equal Protection Clause, and are meant to give further content to those provisions. Both types of principles are supposed to guide government officials in discharging their duties and, if required, they can be enforced against these officials by the judiciary. These principles are as endowed with the authority of the Constitution as are the words on the parchment. However, they present themselves to us as an interpretation of those words and can be criticized and, if need be, reformulated in ways that, short of an amendment, the words on the parchment cannot. One such principle - I refer to it as the principle of freedom - has been violated by the Bush administration and now by the Obama administration in their fight against terrorism. This principle denies the government the power to imprison anyone without charging that individual with a specific crime and swiftly bringing him to trial. The principle of freedom is implicit in the provision of the Constitution that limits the power of Congress to suspend the writ of habeas corpus - the means by which the legality of imprisonment can be tested.I More importantly, it should be seen as a gloss on the Fifth Amendment of the Bill of Rights, which denies government the power to deny anyone of life, liberty, or property, without due process of law

Law is Everywhere

The phrase War on Terror has no discrete legal content. It was politically inspired and used by the administration of George W. Bush to mobilize American society, much like the War on Drugs or the War on Poverty. Yet the declaration of the War on Terror marks the beginning of a unique phase in American law that began on September 11, 2001, and continues to this day. Living through this period has made the lessons of Aharon Barak all the more urgent

Not With Our Tears

He loved to tease me. He knew my heart was pure, but he was amused by the excesses of reason to which I was often drawn. Burke aspired to a workable government. Quixote-like, I wanted something more perfect-a heaven on earth. Burke understood the foolishness of this dream but always tempered his reserve with kindness and made light of our differences. In the summer of 1963, between my first and second years of law school, I worked at the firm of Covington & Burling in Washington. The work was dreadful. I spent my days scanning invoices for com syrup unmixed to see if! could detect a violation of the Robinson-Patman Act. It was very hard for me to keep going, but soon I noticed that all the earlier memoranda in the file had been initialed by Burke, who, having left the firm in 1960 to become the Assistant Attorney General in charge of the Civil Rights Division, was then at the center of the public life of the nation. So I managed to convince myself to persist, because corn syrup unmixed and all that it implied seemed indispensable training for public lawyers