Wednesday, January 26, 2011

Russia's Medvedev On The Rule of Law

CNN reports today that Russian President Dmitry Medvedev made the following comments at the World Economic Forum in Davos, Switzerland:
"Russia is very often criticized.  Sometimes the criticism is well deserved, sometimes absolutely not." ... "Russia is rebuked for the lack of democracy, totalitarian tendencies, weakness of legal and judiciary systems."
"Today we are the way we are, and let me tell you that Russia indeed faces many difficulties in building the rule of law, in creating a modern state of the economy ..."
CNN's report, which stated that Medvedev's remarks were aimed at "pushing foreign investment in Russia," included quotes from Medvedev wherein he states that Russia is "willing to receive friendly advice" but does not need "lecturing."

Bloomberg Businessweek ran an interesting interview last week with Medvedev on investment and security in Russia.  Medvedev touches on the challenges that Russia faces as it modernizes:
"What's missing? More common things like infrastructure, business infrastructure, and legislation to properly regulate that business activity are missing. The official establishment, the bureaucracy, lack proper legal consciousness. And a well-developed judicial system is missing. Once we have all that, and provided there is no corruption, it would mean that Russia is ready to steam ahead along its modernization track."

Thursday, January 20, 2011

Rule of Law Interview with Francis Brady, Steven Greenspan, and Wesley Horton: Part II

In this installment of their interview with the Rule of Law Blog, Francis Brady, Steven Greenspan and Wesley Horton discuss the role that those outside government and the legal profession can play in shaping the Rule of Law.  Please enjoy the second installment of the Rule of Law Blog's discussion with Fran, Steve, and Wes. 

Question 2: What role can those outside of government and the legal profession play in shaping the Rule of Law?

Wesley Horton

The people outside the practice of law can tell those of us inside the practice, as well as the Judges, where the real issues are in the Rule of Law.  We may think they are one thing, the Judges may think they are something else, and people not involved in the bar may think they are a third thing.  Our Conference showed this in action.  When we planned this Conference, we thought we were giving an opportunity for these nonlegal leaders of society to tell us what is wrong with courts, what is wrong with trial courts, what is wrong with appellate courts.  We didn’t hear much about that.  What we heard about is the major problem with the administrative agencies.  And the seven Justices of the Connecticut Supreme Court were hearing the same thing we were hearing as members of the bar.  So we had our eye on the wrong ball.  At least some of us did.  Certainly, I did.  And now we and the Justices will hopefully focus on what these leaders of society see as the real problem, which is different from what we saw.

Steven Greenspan, Francis Brady, and Wesley Horton
Steven Greenspan

It is a real challenge for people who are not part of the government or the judiciary to deliver ideas and input.  I think that the only formal way to do so is to talk with your legislators, either informally or through formal lobbying.  It is vital that we provide access to legislators, to the judiciary committee, and to have open hearings and open sessions so that people can share their ideas.  If people can feel that there is a forum for their ideas, that will translate to public confidence in the judicial system.  On the contrary, if the system is not transparent - a very hidden process run by committees behind closed doors - then people will lose confidence in the system.  So to me, it is vital that we give opportunities to the public to comment not only on the development of laws, but on the performance of the legal system.  This can only be done in an effective way through the Senate and House committees at the state level.

Francis Brady

I certainly agree with my colleagues.  The way the business community can shape the law is threefold.  One, they can participate in legislative lobbying efforts.  Secondly, they can appear at regulatory review commissions and the like, and can explain the down-sides that harsh regulation has on the business community.  The third contribution that they can make - and in our State and our Country do make - is to comply with the law.  By complying with the law at the highest level, they thereby provide the example and the backbone for not only the balance of the business community, but for the citizenry at large.  I would point out that my colleagues were correct in saying that there was virtually no criticism of the courts at the Conference, which was a bit of a surprise given the anecdotal “run away jury” concern that our society seems to be focused on.  Maybe this was defused by Judge Newman when he opened the discussion by talking about the “hot coffee” case, the McDonald’s coffee case.  He put that case into perspective, saying that it was not a miscarriage of justice of great proportions.  In fact, there were many circumstances that caused the ultimate result to be a just one.  Whether that muted subsequent commentary, I don’t think it did.  But it was a good example that caused people to focus on the best parts of the judiciary as opposed to minor criticisms.  So I was surprised that there was not more direction to the judiciary to “change your house.”   I think that the business people in Connecticut are very satisfied with the house of judiciary.

Wednesday, January 19, 2011

President Obama Signs Executive Order for Government-Wide Review of Regulations

One of the major themes discussed at the CBA's Rule of Law Conference was the (sometimes draconian) effect that regulations have on the business community.  This theme took to the forefront of national news this week, when President Obama signed an executive order mandating a "government-wide review of the rules already on the books to remove outdated regulations that stifle job creation and make our economy less competitive."

The President announced this initiative in a Wall Street Journal column.  He opined on the need to find balance in the federal regulatory structure:

We have preserved freedom of commerce while applying those rules and regulations necessary to protect the public against threats to our health and safety and to safeguard people and businesses from abuse ...
Sometimes, those rules have gotten out of balance, placing unreasonable burdens on businesses - burdens that have stifled innovation and have had a chilling effect on growth and jobs.
He announced as a goal of the Executive Order "to root out regulations that conflict, that are not worth the cost, or that are just plain dumb."  He provided an example: the EPA's former classification of saccharin as a dangerous chemical:
For instance, the FDA has long considered saccharin, the artificial sweetener, safe for people to consume.  Yet for years, the EPA made companies treat saccharin like other dangerous chemicals.  Well, if it goes in your coffee, it is not hazardous waste.  The EPA wisely eliminated this rule last month. 
A New York Times article discussed the Executive Order in the context of the President's "desire for detente with the business community," and noted:
The executive order that Mr. Obama signed at the White House would not apply to federal agencies created to be largely independent of the White House and Congress, which includes most of those currently enforcing and writing rules for banks and other financial institutions mandated by the regulatory overhaul law that Mr. Obama signed last year to avoid future crises.
A Wall Street Journal article stated that the "administration offered few specifics, and it was unclear how much of the review would be substantive, and how much cosmetic."  It observed:
Groups that represent big corporations welcomed Mr. Obama's order, which opened a new door for them to challenge federal rules, though it was clear some tension remained.  "No major rule or regulation should be exempted from the review, including the recently enacted health-care and financial-reform laws," said Thomas J. Donohue, president of the U.S. Chamber of Commerce, in a statement.  Some labor and consumer groups expressed concern that the White House appeared to be conceding that federal regulations were burdensome.
The Wall Street journal also provided a critical editorial that questioned the substantive impact of the President's Executive Order.

Tuesday, January 11, 2011

Rule of Law Interview with Francis Brady, Steven Greenspan, and Wesley Horton: Part I

Recently, the Rule of Law Blog sat down with the three distinguished Connecticut attorneys that chaired the CBA's Rule of Law Conference: Francis Brady (Murtha Cullina, LLP), Steven Greenspan (Associate General Counsel at United Technologies, formerly of Day Pitney, LLP), and Wesley Horton (Horton, Shields & Knox, P.C.), to discuss the meaning of the Rule of Law, the challenges that it faces, and what the Connecticut community can do to strengthen the principle.  Please enjoy part one of the Rule of Law Blog's discussion with Fran, Steve, and Wes.

Steven Greenspan, Francis Brady, and Wesley Horton
Question 1: 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, January 10, 2011

Welcome to the CBA’s Rule of Law Blog

            In 2010, the CBA held a historic conference on the Rule of Law, gathering Connecticut’s leaders from law, business, faith, academia, government, and medicine to engage in meaningful dialogue about the Rule of Law.  The result was a spirited and candid exchange of ideas about what our laws are doing right, what they are doing wrong, and how they can improve.

            This blog’s purpose is to ensure a sustaining interest in this discussion, and to keep the conversation that began at the CBA’s Rule of Law Conference going all year. 

            Here, you will find perspectives from our State and beyond on the meaning of the Rule of Law, news updates concerning developments in the Rule of Law, and discussion of the great historical thoughts and writings on the law. 

            We hope that you enjoy, and look forward to your taking part in the discussion. 

Tuesday, January 4, 2011

Trial of Russian Oil Tycoon Highlights Importance of Rule of Law & Safe Investments

Mikhail Khodorkovsky (Wikipedia Commons)
Sometimes, it's hard to understand why the Rule of Law is important to a modern society.

A recent op-ed in The Globe and Mail uses the recent example of a Russian trial gone amok to highlight the importance of Rule of Law. In doing so, the author notes the importance not only to society but to business investments.

There is a legal issue that many people in Canada, especially those in business, often take for granted. It is appropriate to raise it here, in my first column for 2011, so keep reading. Your business depends on it.
It’s called the rule of law, and it’s more important than anything else you’ll read about leasing, franchising or trademarks in 2011. Whether it relates to you as an individual or to the operation of your business, you’ll only realize how important the rule of law is when it’s not there, and right now, it’s not there in Russia.
What's missing? An independent judiciary, for one:
What’s missing in Russia is an independent judiciary that isn’t afraid to make rulings that may be at odds with what the government of the day wants. What’s missing in Russia is the rule of law, something we may take for granted in Canada, but which is so important, lawyers and judges in places as diverse as Pakistan and Zimbabwe have fought for it against their own governments over the past decade, at great risk to their personal safety.
For more on the trial of Russian oil tycoon, Mikhail Khodorkovsky, the New York Times has done a series of articles about it.