Floyd Abrams: Great Threats To Free Speech Come From Inside Academia
Posted: January 4, 2016 Filed under: Uncategorized 1 CommentThe nation’s preeminent First Amendment lawyer, Floyd Abrams (of The Pentagon Papers, et al. fame), gave a wonderful speech last March at Temple University on the greatest threats to free speech presently facing our country. Mr. Abrams recently gave the blog “Concurring Opinions” the right to republish the speech in its entirety.
Notably, Mr. Abrams identifies the deplorable status of free speech on college campuses as one of the greatest threats. He writes:
The Top Legal Stories Of 2015
Posted: December 30, 2015 Filed under: Uncategorized Leave a commentThe year 2015 anno Domini (or of the Common Era for new atheists out there) was chock full of big legal stories in Connecticut. I enjoyed covering them. According to my stats package, the following five stories are the ones readers found most interesting:
Harvard On Posner
Posted: December 28, 2015 Filed under: Uncategorized Leave a commentReaders of this blog know that I am a fan of Seventh Circuit judge Richard Posner. I don’t always agree with his decisions, but his legal reasoning always compels me to think more deeply about an issue, and very few judges have his rhetorical gifts.
Judge Posner is a Harvard Law School alum. The January-February 2016 edition of Harvard Magazine has a terrific profile of the prolific scholar/jurist, written by Lincoln Caplan. It makes for a good read.
The What And Why Of “Due Process”
Posted: December 16, 2015 Filed under: Uncategorized Leave a commentSince Governor Dannel Malloy announced his intention to issue an executive order barring people who appear on the federal government’s “no-fly” list from buying guns, a debate has ensued about whether such an order would violate a person’s right to “due process.” The purpose of this post is not to join that debate, but instead to help non-lawyer readers understand what the “due process” debate is really about.
New Threat To Public Sector Labor Unions, Ctd
Posted: December 15, 2015 Filed under: Uncategorized 2 Comments
Last June I wrote a post about a case that the U.S. Supreme Court had agreed to hear, which poses a serious threat to the viability of public sector labor unions. The case, Friedrichs v. California Teachers Association, concerns whether public employees can be forced to pay fees for the non-political activities of a labor union. I wrote:
By agreeing to review that case, the Supreme Court has accepted the petitioners’ invitation to consider overruling the court’s 1977 decision in Abood v. Detroit Education Association, which answered that question in the affirmative.
More specifically, Abood held that a public employee has a First Amendment right to refuse to support a union’s political activities, but still must pay an “agency fee,” which covers the union’s non-political activities, such as collective bargaining. This distinction prevents unionized employees from “free riding,” i.e., from enjoying the benefits of the collective bargaining process without contributing to the costs thereof.
The petitioners in Friederichs argue, however, that all public sector labor union activity is inherently political and that a public employee has a First Amendment right not be compelled to support that activity if they object to it. The Supreme Court’s decision to hear the Friederichs case suggests that at least four justices are receptive to that argument, which could be devastating to public labor unions.
The case has been scheduled for oral argument before the Supreme Court on January 11, 2016. The Obama administration has filed an amicus brief in support of the unions, asking the Supreme Court to reaffirm Abood. [I share the administration’s view that Abood should be reaffirmed.]
This is a VERY important case, but it has been flying under the media’s radar screen. Click here to read more about the case over at SCOTUSblog. And click here for an insightful discussion about the threat an adverse decision poses to our democracy in general.
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.
Yale Media Law Clinic Releases Paper On Access To Police Body Camera Footage
Posted: December 7, 2015 Filed under: General Law | Tags: body cameras, freedom of information, yale Leave a commentThe Yale Law School Media Freedom & Information Access Clinic has announced the release of a new white paper, “Police Body Cam Footage: Just Another Public Record,” which advocates for public access to the footage collected by such cameras. The white paper
[D]etails the great public interest in disclosure of the images captured by police body cameras and comprehensively demonstrates that standards already well established in state open records laws are more than sufficient to protect privacy and prevent interference with on-going criminal investigations.
By releasing the paper, the clinic is aiming to highlight an issue it believes is frequently ignored in the criminal justice reform discussion. Without public access to body camera footage, the cameras cannot serve their purpose as public oversight tools, the white paper finds. The Clinic encourages state legislatures to preserve public access to body camera footage so that the press, watchdog organizations, and individuals affected by police encounters can collectively work to ensure institutional accountability.
[Disclosure: I am a supervising attorney for the clinic. I did not participate in the research or drafting of the white paper.]
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.
Appealingly Brief! 