Transparency in Government Includes the Judiciary

Sun_and_Moon_Nuremberg_chronicleThe following commentary appears in this week’s Wisconsin Law Journal:

Transparency is the core value of a democratic society. In a democratic self-government, voters have the power to select and reject those who will wield the power of government.

The power of the vote is only meaningful if the voters have information upon which to act. This is where transparency in government comes in.

In the case of the governor, the voters need to know whether their tax dollars are being steered towards political donors and whether state resources are being used to advance partisan political purposes. This is why the prospect of executive-branch officials communicating through private emails, and taking other steps to hide the true reasons for executive decisions from the public, is so troubling.

In the case of the state Legislature, the voters need to know whether lawmakers are exercising their power independently. Our representatives in the state legislature shouldn’t act as mere conduits for self-serving laws drafted by special-interest groups. Wisconsin was a leader, through the creation of the Legislative Reference Bureau in 1901, in our nation’s history in insisting that legislators draft their own laws.

The role of our state judges, in enforcing the value of transparency in government, is vital. This role has two components. First, it is essential that our state judges enforce transparency on the other two branches of state government. Second, our state judges must comply with the need to be transparent within their own judicial branch.

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Don’t Fear Numbers

RIskOver the last several years in Law School, I’ve learned that many of my peers are averse to math. In Prof. Anzivino’s Business Bankruptcy class I distinctly remember painful groans as he explained the time value of money and had the class look at a simple amortization table. In Prof Grossman’s Business Strategy course, I had a friend lean over to me and ask, “What the hell is a balance sheet?” Basic accounting and finance concepts seem to be like nails on chalk board for many law school students. Don’t fear numbers; basic accounting and finance skills can help distinguish your resume from other law school graduates and build better relationships with future clients.

Lawyers should have a basic understanding of a balance sheet, income and cash flow statements.

A balance sheet identifies the assets of an organization and how those assets were financed, either through debt [using someone else’s money] or through equity [using the owner’s money]. For those who are interested in doing M&A, a thorough understanding of a balance sheet is critical. For example, the ability to identify and discuss financial reserves [such as, those related to environmental remediation] can help you to identify, understand, and highlight risk for your client. An entity’s balance sheet also provides an understanding of an operation’s well-being: trends in cash, inventory, revenue producing equipment, receivables, payables, debt equity ratio and retained earnings [to name a few]. It’s also important to understand the relationship between these elements; it’s called a balance sheet for a reason.

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Is Wisconsin’s public trust doctrine eroding?

Environmental law is of relatively recent vintage.  Most of its significant principles date from the 1960s or later, with a few notable exceptions.  The latter category includes the public trust doctrine.  As the name suggests, the doctrine is generally taken to mean that a state must act as “trustee” of certain natural resources, particularly the navigable waters of the state, and manage them for the trust beneficiaries—its people.  public trustThe doctrine can be traced back to ancient Roman law. The “Institutes of Justinian,” compiled in the Sixth Century A.D., provided:

“By the law of nature these things are common to mankind—the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings . . . .”

In this country, the United States Supreme Court recognized the doctrine in its 1892 decision in Illinois Central Railroad Co. v. Illinois,[1] as detailed by Marquette Law School Dean Joseph Kearney in a 2004 article.  The doctrine has since evolved into many different strains of varying strength primarily governed by state common law.  Here in Wisconsin, it is rooted in the Article IX, § 1 of the state constitution, which itself borrowed heavily from the Northwest Ordinance of 1787.  Over a hundred years ago, in Diana Shooting Club v. Husting, the Wisconsin Supreme Court described the doctrine as preserving to the people “full and free use of public waters,”[2] and the Wisconsin Legislature has delegated the resulting regulatory authority to the Wisconsin Department of Natural Resources.  As recently as 2011, in Lake Beulah Management District v. DNR, the Wisconsin Supreme Court expansively interpreted the doctrine as a valid basis for DNR to consider whether to grant, conditionally grant, or deny a high capacity well permit based on the well’s impact on other waters of the state.[3]

However, several recent developments highlighted by a legislative hearing earlier this week seem to indicate that in Wisconsin, unlike other states, the relative strength of the public trust doctrine is ebbing.

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