The Declaration Of Independence As Euclidean Geometry
Posted: December 9, 2015 Filed under: Uncategorized 2 CommentsThe Declaration of Independence is one of the two most revered documents in American history (the other being the U.S. Constitution.) It is without doubt a remarkable document. From the perspective of a twenty-first century appellate lawyer, however, it leaves much to be desired as a example of persuasive legal writing. Now, before you tar and feather me, please allow me to explain.
A Win For Open Government
Posted: December 3, 2015 Filed under: General Law, Uncategorized | Tags: eveleigh, foia, freedom of information, teacher misconduct Leave a commentLast week the state Supreme Court issued an important Freedom of Information Act decision involving records of alleged misconduct by public school and university teachers. Rejecting an argument that such records constituted “records of teacher performance and evaluation,” which are exempt from disclosure under the FOIA, a unanimous Supreme Court held that misconduct records must be disclosed to the public. Mark Pazniokas has an excellent story about the decision over at The CT Mirror.
I write to make two additional points. First, Justice Eveleigh wrote a clear, cogent and compelling decision for the court, a decision that reaffirms the long-settled proposition that exemptions to the FOIA must be construed narrowly, a proposition too many state and local agencies often forget–sometimes on purpose I think.
Second, the decision undercuts the argument, voiced by some of my friends in the open government community, that the Supreme Court is actively hostile to the FOIA. To be sure, the court occasionally disappoints me when it comes to FOIA decisions. In close cases, I would prefer that it err in favor of, rather than against, disclosure. (See, e.g., my post about a police records decision it released in July 2014.) But I don’t think it is fair to call the court hostile to our state sunshine law.
Oftentimes, the problem lies not with the court, but with the law that it is interpreting, a law that has been amended too many times since it was enacted in 1975. The best way to get consistently “better” FOIA decisions out of the Supreme Court is to persuade the legislature of the value of open government–just look at the mess in Chicago caused by hiding public records about police misconduct–and fix some of the weaknesses with the act. On that point I’m sure all of my open government friends agree.
An Introduction To The Power Of Judicial Review
Posted: December 2, 2015 Filed under: Appellate Law, Uncategorized | Tags: santiago Leave a commentSince the Connecticut Supreme Court decided State v. Santiago last August, which may have ended the death penalty in Connecticut, a debate has ensued about whether the decision constitutes a legitimate exercise of the power of “judicial review.” Judicial review refers to the power of federal and state courts and judges to strike down laws and executive actions if they conflict with, and thus violate, the United States Constitution or a state constitution.
The power of an appointed judge or panel of judges to tell an elected legislature that a law it debated and then passed, and that an elected governor or president signed, cannot be enforced because it is unconstitutional is truly extraordinary. It is also oft misunderstood. This post is an attempt to help readers understand the nature of the power and why its exercise is often controversial. Read the rest of this entry »
Supreme Court To Rehear Arguments In Death Penalty Case
Posted: December 1, 2015 Filed under: Appellate Law, Uncategorized | Tags: death penalty, peeler, santiago 1 CommentThe Connecticut Supreme Court announced today that it will hear additional oral arguments on January 7, 2016 (10:00 a.m.) concerning the constitutionality of the death penalty. In particular, it will decide whether to reaffirm, or overrule, its decision last summer abolishing the death penalty.
A Legal History Of Thanksgiving
Posted: November 25, 2015 Filed under: General Law, Uncategorized | Tags: thanksgiving Leave a commentFrom the National Archives:
On September 28, 1789, just before leaving for recess, the first Federal Congress passed a resolution asking that the President of the United States recommend to the nation a day of thanksgiving. A few days later, President George Washington issued a proclamation naming Thursday, November 26, 1789 as a “Day of Publick Thanksgivin” – the first time Thanksgiving was celebrated under the new Constitution. Subsequent presidents issued Thanksgiving Proclamations, but the dates and even months of the celebrations varied. It wasn’t until President Abraham Lincoln’s 1863 Proclamation that Thanksgiving was regularly commemorated each year on the last Thursday of November.
In 1939, however, the last Thursday in November fell on the last day of the month. Concerned that the shortened Christmas shopping season might dampen the economic recovery, President Franklin D. Roosevelt issued a Presidential Proclamation moving Thanksgiving to the second to last Thursday of November. As a result of the proclamation, 32 states issued similar proclamations while 16 states refused to accept the change and proclaimed Thanksgiving to be the last Thursday in November. For two years two days were celebrated as Thanksgiving – the President and part of the nation celebrated it on the second to last Thursday in November, while the rest of the country celebrated it the following week.
To end the confusion, Congress decided to set a fixed-date for the holiday. On October 6, 1941, the House passed a joint resolution declaring the last Thursday in November to be the legal Thanksgiving Day. The Senate, however, amended the resolution establishing the holiday as the fourth Thursday, which would take into account those years when November has five Thursdays. The House agreed to the amendment, and President Roosevelt signed the resolution on December 26, 1941, thus establishing the fourth Thursday in November as the Federal Thanksgiving Day holiday.
Happy Thanksgiving everyone!!!
AG Jepsen: “Spending Cap Is Unenforceable.”
Posted: November 18, 2015 Filed under: Appellate Law, Uncategorized | Tags: attorney general jepsen, fasano, jepsen, spending cap Leave a commentFew things are more gratifying to a lawyer than when another lawyer of great stature agrees with the first lawyer’s legal opinion on some matter of significance. So, needless to say, I was quite pleased yesterday when I read Attorney General George Jepsen’s legal opinion that the state’s constitutional spending cap “has no current legal effect,” i.e., it is unenforceable. I wrote a couple of blog posts last April that reached that same conclusion.
Some Thoughtful Perspectives On The Turmoil At Yale And Mizzou
Posted: November 11, 2015 Filed under: Uncategorized Leave a commentAs a free speech advocate, I have been following closely the recent student protests at Yale and the University of Missouri. A number of thoughtful writers are beginning to share their perspectives on the protests. Today two articles caught my attention and are, IMHO, worth taking time to read:
Conor Friedersdorf, writing at The Atlantic, has this piece on the Yale protests, entitled “The New Intolerance of Student Activism.”
Univ. of Missouri law prof Thom Lambert, writing on his blog, has this piece on the Mizzou controversy.
I’ll add more links to other thoughtful articles as I come across them.
UPDATE (11/12/15):
Here are a few more links to thoughtful articles on the Yale controversy:
Mark Oppenheimer’s column at Tabletmag.com
Colin McEnroe’s column in the Hartford Courant
Nicholas Kristof’s column in the New York Times
How Trial Judges’ Personal Motion Filing Procedures Can Ruin Your Appeal
Posted: October 28, 2015 Filed under: Uncategorized Leave a commentMany trial judges, particularly federal district court judges, have special rules governing the procedure for filing motions in cases on their dockets. If a lawyer is not careful, those special rules can result in the dismissal of an appeal as untimely, as the Second Circuit recently explained in its opinion in Weitzner, et al. v. Cynosure, Inc. (Hat Tip to Orrick appellate lawyer (and my cousin by marriage) Bob Loeb.)
Live From New York, It’s Saturday Night (Election Law?)!
Posted: October 19, 2015 Filed under: Uncategorized 1 CommentHillary Clinton appeared in a three-minute skit on Saturday Night Live the other week. Donald Trump is set to host an entire SNL show next month. Are Clinton’s and Trump’s competitors in the Democratic and Republican presidential primaries entitled to equal time on NBC? Yes, although not necessarily on SNL.
Nate Klau Sings Midnight Train To Georgia
Posted: October 18, 2015 Filed under: Uncategorized Leave a commentAs readers know, I like to depart from the usual legal babble of this blog once in a while to turn the spotlight on members of my family. This post shines the light on my younger brother, Nathan, an actor who started singing and dancing in my mother’s womb. Here’s a great video someone recently posted on YouTube of him performing with the Yale Whiffenpoofs on the Today Show in 1994, following a post-graduation European tour. (Note that Matt Lauer still has hair.) Enjoy!
Appealingly Brief! 