"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
case illustrates to me the serious consequences to the Bar itself of not
affording the full protections of the First Amendment to its applicants for admission.
For this record shows that [the rejected attorney candidate] has many of the
qualities that are needed in the American Bar. It shows not only that [the
rejected attorney candidate] has followed a high moral, ethical and patriotic
course in all of the activities of his life, but also that he combines
these more common virtues with the uncommon virtue of courage to stand by his
principles at any cost.
It is such men as these who have most greatly honored the profession of the
law. The legal profession will lose much of its nobility and its glory if it is
not constantly replenished with lawyers like these. To force the Bar to become a
group of thoroughly orthodox, time-serving, government-fearing individuals is to
humiliate and degrade it.” In
Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429
(1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong
dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan,
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
Monday, October 5, 2015
Occupational licensing cannot be used as a tool to trump free speech - says a federal court in Kentucky
Apparently, bars to entry into nearly every plausible profession and occupation are staring to cost the U.S. economy so much that even conservative court system that is extremely biased towards the government, started to take notice and to react.
In 2013, monks in Louisiana won their right to sell coffins against the direct challenge of the State Board of Funeral directors that attempted to challenge monks' business as a regulated mortuary services.
The pressure of the funeral directors was clearly not for protection of consumers, but to quash cheaper alternatives for caskets in a state that undergone the disaster of hurricane Katrina, and where the customer base of those who could afford expensive funerals has shrunk.
On February 25, 2015, the U.S. Supreme Court struck the attempt of North Carolina State Board of Dental Examiners to regulate teeth whitening as practice of dentistry, with a presidential decision affecting all professions regulated by their own market players. Since February 25, 2015, any member of the "State" licensing board that is run by a super-majority of market players without proper state oversight is subject to treble damages in civil lawsuits for antitrust violations.
In June of 2015, Texas State Supreme Court has struck down attempts of the State Board of Cosmetologists to regulate the business of "eyebrow threaders".
The next blow came from the U.S. District Court in the Easter District of Kentucky in the case Rosemond v Markham, Case No. 13-42-GFVT, where, on September 30, 2015, the court has struck attempts of Kentucky Board of psychologists to compel a columnist to remove from his online column the statement that he is a psychologist and claims that the columnist was engaged in unauthorized practice of psychology.
Claims of Kentucky State Board of psychologists was rejected on 1st Amendment grounds, a big victory of free speech against attempts of state governments to quash it under the guise of occupational regulation.
Even before the decision in this case came out, some legal scholars - surprisingly - advocated for application of strict scrutiny to the so-called "professional speech", especially in professions where the regulated activity CONSISTS OF SPEECH, and often of speech on matters of serious public concern.
I wonder when consumer unions will take the matter in their own hands, as consumer unions started to do regarding legal services, in California and in other states, and demand restructuring of occupational regulation in compliance with existing federal antitrust law.
Because, apparently, from Louisiana to North Carolina to Texas to Kentucky to other states, the declaration and promise of occupational licensing as consumer protection has failed and is hurting the economy, by denying people the right to enter occupations of their choice and be able to earn a proper family-sustaining livelihood, reducing consumer choices and reducing influx of taxes that could otherwise help sustain this country's needs, including social programs.