Thursday, February 21, 2013

Report of the Connecticut Bar Association 2012 Rule of Law Conference

The CBA’s first Rule of Law Conference was held in 2010, gathering leaders of the Judiciary, the Bar, academia and the business community together to discuss the role of the Rule of Law in all aspects of society.  The conclusions drawn from the 2010 Conference ultimately drove the theme of the 2012 Conference, held this past November to focus on the role of administrative agencies in doing business in Connecticut and the importance of the Rule of Law in enabling success in business through the principles of transparency, predictability, and timeliness of agency action.

The 2012 Conference drew leaders in the business community, including the CEO of the MetroHartford Alliance, Nelson R. (“Oz”) Griebel, and General Electric Senior Vice President and General Counsel Brackett B. Denniston III, along with Connecticut legislators, Connecticut’s Attorney General, George Jepsen, heads of state agencies and members of the Judiciary and the Bar.

The report includes a comprehensive overview of the Conference and the conclusions of its participants, whose insight has helped to develop action items to recommend changes to the administrative and regulatory processes in state agencies in Connecticut.

Please click on the link below to view the report of the Connecticut Bar Association 2012 Rule of Law Conference: 

http://www.ctbar.org/userfiles/ruleoflaw/2012RuleofLawConferenceReport.pdf

Thursday, November 8, 2012

A media "assault" on the D.C. Circuit?

The Wall Street Journal penned an interesting editorial this week, charging reporters from the Washington Post and New York Times, among others, with launching a "campaign to blame and stigmatize" the judges of the District of Columbia Circuit Court of Appeals.  The reason for the "assault?"  The Circuit Court's review of cases challenging regulations implemented by the Environmental Protection Agency, by the "Dodd-Frank" legislation, and by other federal agencies.  The Journal argues that these media outlets are attempting to intimidate the judges in an effort to shield arbitrary and capricious rule-making.  It concludes:
The stakes are nearly as high at the D.C. Circuit, which provides the only check on the burgeoning regulatory state.  Congress tends increasingly to write ambiguous laws, precisely to give regulators the discretion to impose far-reaching costs on the economny without the legislators having to take responsibility for the vote.  
The judiciary has a legal duty to make sure these rules follow the law, both statutory and constitutional, and don't trample on other rights.  Let's hope the D.C. Circuit judges ignore the liberal intimidation campaign and stick to the law. 

Tuesday, August 14, 2012

Rule of Law Interview With Oz Griebel, Keynote Speaker for the 2012 Rule of Law Conference

Oz Griebel, the morning keynote speaker of this year’s Rule of Law Conference, has an extensive record of service in Connecticut. Since 2001, he has served as President and Chief Executive Officer of the MetroHartford Alliance, and from 1993 to 1999, he served as the CEO of BankBoston Connecticut. Mr. Griebel, who earned a law degree from Suffolk University in 1977, was also a candidate for the Republican nomination for Governor of Connecticut in 2010. He graciously agreed to an interview with the Rule of Law Blog, to discuss some of the major themes that will be featured at this year’s Rule of Law Conference. Please enjoy the Rule of Law Blog’s interview with Oz Griebel.

Oz Griebel

Q:     What is the Rule of Law?

A:     From a business perspective, I would say that the Rule of Law is the structure in which one can conduct business with a high degree of confidence that the transaction or other actions taken will be supported and enforced so that the businesses involved can not only rely on their own interactions, but also be assured that if people or minds change, a contract or some other comparable agreement is going to stay the course of time.

Q:     What steps can the government and legal community take to help strengthen the Rule of Law as it relates to business?

A:     The lawyers and judges responsible for handling the cases should understand the needs of business, as well as the intent of a particular transaction, business, or party, in order to ensure that their intentions are appropriately reflected. It is as important, or even more important, that there is, much as there has been for hundreds of years, a building upon prior interactions, prior decisions, and prior transactions. Again, to go back to my first point, there is an even higher degree of confidence that the relevant legislation, regulations, and rules of the court are known and understood, and therefore can be relied upon by the business community.

Q:     A major theme at the 2010 Rule of Law Conference was the impact that regulations and administrative agencies have on the business community. In your estimation, are the regulators and administrators helping or hurting business in Connecticut?

A:     I wouldn’t paint everybody with the same brush. Like many things in life, it depends on who is in charge; it depends on what their background is, and, in the case of the federal government, it depends on the views of the current administration. For instance, we see the ebbing and flowing of antitrust laws under various administrations over the last twenty or thirty years. So, to some degree, the regulators are following the lead of those who appointed them, and a lot of that depends on the commissioner or secretary of the particular department. I am not an agency expert, but from the outside looking in, much of it has to do with leadership at the top encouraging the civil service people who have been in place for a long period of time to make the effort to understand the views of the “regulatees.” Certain aspects of business have become more complex, and this is in some cases helped, and in others exacerbated, by technology. There needs to be a real effort by the regulating bodies to understand what the entity, business, or sector is like, what its goals are, and how it makes money; not only where there is the potential for abuses, but where there are positive opportunities. I think, conversely, that we in the private sector need to understand the role of the regulator, and to respect that whether we like it or not, over a period of time, legislators at both the State and Federal levels have delegated much to agencies. In most cases, this is with good intention and probably, in most cases, with the right outcome. But this is a dynamic, not static, situation that really does require the legal community to represent its clients, as well as the state agencies, to understand respective goals.

Q:     Do you believe that Connecticut is a business friendly state?

A:     This is a debated question. If you take data from all perspectives, I don’t think that there is any question that over the last decade up until 2012, that there was not a strong advocate for the private sector in the Governor’s office. That being said, whether you agree with everything that Governor Malloy and his administration have done, there is no question that the Governor is fully engaged in this discussion with individual businesses and with the sector at large. We will always debate the wisdom of specific programs and actions, but the fact is that the Governor and Catherine Smith at DECD, as well as Dan Esty at DEEP and Jim Redeker at DOT, look hard at what is needed to keep and grow our private sector employer base. They have also looked hard at what is needed for the entrepreneurial community, and what the State should be appropriately doing in that arena, and that is a significant difference. There are, however, specific actions that the Legislature has enacted or considered enacting over the past decade that send negative signals. We’re in an age where the Internet allows any company and their lobbyists and advisors, to look at what bills have made it through committees, even if they are ultimately defeated by one or both chambers. The fact that certain things go forward is definitely troubling. I have said in many forums that we are, to some degree, viewed very differently than the southwest and the southeast where there is, one might say, a better understanding between legislative bodies and the business community about what is needed to retain and grow jobs in the private sector. This is a little bit of a joke, but we’ve caught this in our counterparts in the State of Texas: we ask them how many lobbyists they have, and they will say, “Why do we need lobbyists?” We say, “You don’t have lobbyists?” and their answer is: “No – when we need something, we tell the legislature what we need and they get it done.” I’m not saying that this is the model, because it has its own downside. But I do believe that we have been somewhat of a prisoner over the last decade to a legislature that has been, by and large, more focused about how to spend tax dollars than concerned on the environment needed to sustain a dynamic and growing economy to generate those taxes. It’s an ongoing issue and I’ll just reiterate that we have a Governor and an administration that is fully engaged. This sends generally positive signals to the private sector that state government is focused on employment retention and growth and attracting the capital needed for the same.

Sunday, June 24, 2012

Announcing the CBA's 2012 Rule of Law Conference

The Connecticut Bar Association is pleased to announce that its Rule of Law Conference will take place on November 16, 2012.  The topic of this year's Conference is informal rulemaking, and particularly whether such rulemaking creates interference, delays and increased costs to doing business in Connecticut.  In the months leading up to this year's Conference, the Rule of Law Blog will speak with Connecticut leaders in business, academia, and law to preview the discussion.  As we gear up, please enjoy the Rule of Law Blog's interview with Steven Greenspan, Francis Brady, and Wesley Horton - three of the Conference's chairs - on how they define the Rule of Law.


Steven Greenspan, Francis Brady, and Wesley Horton
What is the Rule of Law?

Francis Brady

My point with respect to the Rule of Law is that it has to constitute a structure wherein all citizens are governed equally and fairly.  Much emphasis has been placed on the importance of democracy, and certainly democracy is important to society in a number of fundamental respects.  I suggest the controversial point, however, that there does not have to be a democratic institution that sanctions or develops the Rule of Law.  It can be an autocratic system.  One that comes to mind is the military where there are very strict rules adopted by a top-down administration.  There is no flexibility for most of the members of the military in contributing to that structure of the Rule of Law.  But there is a fair and uniform administration of that rule.  And that is what's important to the principle.

Wesley Horton

There are two points I wanted to make.  The first is that the Rule of Law has to apply to the government itself.  The government must follow the Rule of Law just as everyone else must.  The second point is that it is certainly true that nondemocratic societies need a Rule of Law as well as anyone else.  The best example that was given at the Rule of Law Conference was by the business people who said that they would much rather deal with China than Russia today, even though neither is a model of democratic governance.  This is because at least in China, there appears to be less of a problem of corruption and less of a problem of government leaders pressing their thumb on the judges and the judicial system.

Steven Greenspan

It is necessary for any civilized society to have a strict set of rules that can be applied on a consistent basis, and more importantly, that the citizenry can have some predictability in terms of the Rule of Law.  In the business context, no one wants to invest in a country where there isn't a predictable set of laws.  In the social context, it is important that the Rule of Law be understood so that the impact of individual conduct is clear, rather than rules being applied on an ad hoc basis.  So I think Francis is right.  You could have a very autocratic government.  You could, in fact, have a dictatorship with a very strong set of laws, and those laws might be applied in a harsh way.  But if they are evenly applied on a consistent basis, then you have a consistent Rule of Law that people could rely on.  It is uncertainty that undermines the Rule of Law.

Monday, August 22, 2011

Rule of Law Interview with Attorney General George Jepsen

By Dan Elliott

Attorney General George Jepsen
A prominent theme at the CBA's 2010 Rule of Law Conference was the impact that Connecticut's regulatory structure has on business in the State.  Connecticut Attorney General George Jepsen graciously agreed to an interview with the Rule of Law Blog to discuss this and other themes relevant to the Rule of Law.  Please enjoy the Rule of Law Blog's interview with Attorney General Jepsen.

What is the Rule of Law?

The rule of law is the fair and impartial application and enforcement of the statutes, legal opinions and regulations that govern the conduct of individuals and corporate entities for the protection of society and public health and safety.
A common theme at the CBA’s Rule of Law Conference was the impact that regulations and administrative agencies have on the business community. In your estimation, are regulations and the administrative agencies helping or hurting businesses?
Compliance with the law is a necessary cost of doing business; as long as regulations are applied fairly and uniformly, no business should be unduly burdened.  Administrative agencies and the regulations they enforce are meant to ensure that businesses are registered; have the necessary training, licenses, permits, and insurance to do the job correctly; and that their workers are protected.  It would be na├»ve, however, to suggest that all regulations are created equal or that agencies always exercise their authority reasonably.  As Attorney General, I recognize that government leaders should at times reassess whether a particular law or regulation serves its intended purpose and whether a government agency is appropriately exercising its authority.  Only then will any regulatory scheme inspire public trust and confidence.
One of my responsibilities as Attorney General is to represent state administrative agencies. That responsibility carries enormous power and the opportunity to bring about positive change.  But with that power is a corollary responsibility to exercise the broad discretion of the office in a fair, wise and just manner.  The key word here is “discretion.” Bringing the wrong case could destroy the life of an innocent person or ruin an honest business.  To minimize the risk, I try to hear all sides of an issue before moving forward, and not to announce anything publicly before I am confident I have the facts right. To further protect the reputation of those who have had issues before my office, I have not hesitated to close files and, when appropriate, inform the public that a matter has been closed.
What role should regulations play in our society?
Federal and state laws define the rules of society. Regulations help to interpret those rules and provide practical application to daily life. In an ideal world, everyone would be accountable for their own actions and regulations would be unnecessary. Unfortunately, we do not live in an ideal world. We have seen all too well what happens in a largely unregulated marketplace – the bank bailouts and mortgage foreclosure crisis. However, too much regulation, outdated regulations, or the unfair application of regulations stifles creativity, opportunity and growth. So we need a thoughtful, balanced approach. Government leaders must encourage a respectful debate about the need for certain regulations and, when appropriate, seek changes to a regulatory scheme.  As Attorney General, my job is to ensure a level playing field for all companies operating in Connecticut, while at the same time protecting consumers from unfair or illegal practices by businesses.  I will not shy away from a robust debate about how best to strike that balance.
Is Connecticut a business friendly state?
I would say yes, but there is room for improvement. The state business tax climate ranks among the lowest in the nation according to a recent national survey. The state offers an educated, skilled workforce, good schools and exceptional quality of life. Governor Malloy has recently offered a number of tax and other incentives to encourage certain companies to relocate or do business here.  As Attorney General, I have made every attempt in my first eight months in office to engage in a dialogue with businesses to better understand their concerns and how my office can address those concerns without compromising its mission to protect the citizens of Connecticut from any unfair or illegal practices. 
What role do those outside of government and the legal profession have in shaping the Rule of Law?
Every citizen in a democracy is responsible for their government. They have a responsibility to educate themselves, identify problems or issues, make their voices heard and work toward solutions by voting or participating in decision-making. The Internet and use of social media make it easier than ever for individuals to make their views known to elected representatives and government leaders. Citizens are the pulse of the body politic, a vital sign of a healthy democracy. A knowledgeable and active electorate is one of the important checks and balances on elected government and the rule of law. While public participation is vital for government to function well, it does take time, a precious commodity for individuals trying to get ahead and working families struggling to do more with less. Community and public interest organizations can help individuals participate, and also focus attention on their most important issues. Based on my experience, government does and will continue to respond. In America, we enjoy what few countries have: respect for the rule of law where justice is not for sale. It is for this reason that I, as Attorney General, take very, very seriously the business of making government work right. There is no greater responsibility than preserving and enhancing public confidence that the laws of Connecticut are being enforced effectively, efficiently and most of all, fairly.
How can government and the business community work together to strengthen the Rule of Law?
Government and the business community can work together to strengthen the Rule of Law by operating honestly, openly and in good faith. We need a working relationship based on mutual respect and understanding, one which promotes cooperation rather than confrontation. We may disagree, but disagreements should not prevent working toward a solution.
As I exercise discretion as Attorney General in deciding which cases to pursue and in what manner, I am cognizant that not all mistakes and transgressions are created equal.  To me, there is a world of difference between an honest mistake, an act of negligence, and intentional wrongdoing. Proportionality needs to be reflected in the manner my office pursues a matter.
 While sometimes there may be no other choice but to go to court, I do not believe that litigation is the only answer or always the right answer.  There is not always a clear right and wrong.  Issues and controversies are nuanced, shades of gray, rather than black and white. My preferred approach is to get the parties to a dispute around a table and work for a solution that reflects the interests at stake in all of their complexity, treating the dispute as a problem to be solved, rather than a reason to be confrontational.

Monday, August 8, 2011

Must American Judges "Bench Their Rule-Of-Law Sapping Empathy?"

Chip Mellor, President and General Counsel of the Institute for Justice, penned an interesting piece in Forbes critiquing the school of so-called "legal realism," which Mellor argues is exhibited today both in the courts, and in the Obama Administration.  "Legal realists," as described by Mellor,
believed that the law is subjective, inevitably influenced by the personal beliefs and values of individual judges.  This meant any assertion that law could be objective and based on enduring principles was at best naive and at worst, led to entrenching the rich and powerful.  Legal realists urged courts to recognize this and to seek outcomes based on the greatest social welfare.
This school of thought can be seen, Mellor argues, in President Obama's promise to appoint judges who "stand up for social and economic justice" and have "empathy ... to understand what it's like to be poor, or African-American, or gay, or disabled, or old."

Mellor concludes:
Obviously, empathy is a virtue.  But a judge who places his or her vision of social and economic justice above the rule of law may confer benefits on some litigants -- ruling in their favor when the Constitution demands otherwise.  For those in favor of a "living Constitution," empathy and social consciousness -- not the history or plain meaning of the Constitution -- should dictate how a judge rules in any matter.
Who has it right?  The "legal realists" or the "Constitutional originalists?"  Mellor's piece is an interesting contribution to the discussion.

Wednesday, August 3, 2011

ABA's Rule of Law Initiative Presenting at Annual Meeting

The CBA isn't the only organization interested in promoting interest and knowledge in the rule of law.  Our sister organization, the American Bar Association, started a Rule of Law Initiative.

The ABA's ROLI (as it is called) has a robust website and even a Facebook page to visit.  

For those attending the ABA's Annual Meeting in Toronto this weekend, the ROLI has put together a notable program on the role of lawyers during times of transition: "Lessons from Mexico and the Middle East".

It features Mr. Samir Annabi, Director of Tunisia's Higher Institute for the Education of Lawyers, who will speak about the ongoing social and political transition in the Middle East, and Mr. Gerardo Nieto, President of Mexican Corporate Counsel Association, who will discuss Mexico's transition to an adversarial legal system.

Attendees of the program will also get to watch a new documentary.  A sneak peak is down below. Further videos can be found at the ROLI's YouTube channel