Opinion2017-05-19T20:27:29+00:00

The following articles, except where noted, were originally published in the Keene Sentinel.

Who Makes the Call; lawyer or client?

The Sixth Amendment says that in all criminal prosecutions, the accused “shall enjoy the right … to have the Assistance of Counsel for his defence.” Like so much of the Bill of Rights, the Founding Fathers didn’t tell us exactly what they had in mind, leaving it up to [...]

Is Impeachment Political or Legal

Since former FBI Director James Comey testified before the Senate Intelligence Committee last June, there has been a more or less steady impeachment drumroll. According to recent polls, more than 40% of voters think President Trump should be impeached, while less than 40% think he is doing a good [...]

First Amendment Shouldn’t be Used as an Excuse

In the usual free speech case, someone claims that his or her right of free expression is being infringed. There is another side to this constitutional coin, a “negative” right, meaning the right not to be compelled to speak. This right was the basis for a 1943 decision where [...]

Wedding-cake Bakers and the Constitution

David Mullins and Charlie Craig live in Colorado. In 2012, same-sex marriage wasn’t allowed in that state, and the Supreme Court’s decision was three years away. So, they decided to travel to Massachusetts, where gay marriage had been legally recognized since 2004, and then have a wedding party back [...]

Gerrymandering and the Sanctity of the Vote

Gill v. Whitford, the gerrymandering case heard last week by the Supreme Court, involves two lines. One is an actual line, meaning the contours of voting districts within a state. The other is the abstract line known as “justiciability,” meaning whether this voting question should be decided by the [...]

Plausibility, the Press, and Sarah Palin

When it comes to filing lawsuits, it used to be that lawyers could write a complaint saying little more than “he done me wrong” and worry about the details later. “Sure,” the lawyer could tell the client. “We’ll throw something at the wall and see what sticks.” No more. [...]

Some Thoughts on Good Legal Writing

The difference between the almost right word and the right word is really a large matter. ’tis the difference between the lightning bug and the lightning. (Mark Twain)Your main task as a writer is to distill the essence – to find its central idea, to describe its distinctive qualities using [...]

Politics, Ethics, Recusal, and the Rule of Law

As many of you remember, we’ve been here before. In October, 1973, President Nixon ordered Attorney General Elliot Richardson to fire the special Watergate prosecutor, Archibald Cox. Richardson refused to do so and resigned, as did his deputy, William Ruckelshaus. Third in line was Solicitor General Robert Bork, and [...]

Wiretaps, Eavesdrops, Recordings, and Hacks

A few weeks ago, President Trump warned former FBI Director James Comey, via Twitter, of course, that he “better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press.” In his testimony before the Senate Intelligence Committee, Mr. Comey said, “Lordy, I hope [...]

Transparency is Key to Government Working for Us

The First Amendment ensures freedom of the press, but it doesn't explain just what that freedom includes. It does not say anything about the “right to know,” although several Supreme Court cases, as well as the Freedom of Information Act, uphold the public right of access to government information. [...]