I have written a lot on this blog about occupational regulation (which includes attorney licensing), an elaborate sham by which professions protect their markets from competitors, raise prices and restrict services to consumers - all under the guise of consumer protection.
Even a law professor recently recognized that the so-called regulation of lawyers by the government is a sham that lawyers pulled at the behest of the American Bar Association, in order to avoid "real" regulation by the "watchful and intrusive eye of the state" (meaning - by a neutral state agency, which is exactly what federal antitrust laws require for regulation of markets regulated by market players - attorneys by attorneys, plumbers by plumbers, taxi drivers by taxi drivers, doctors by doctors).
Yet, litigation so far, as far as I know, only concerned clashes between disciplined professionals and professional boards (infested and overpowered by the disciplined professionals' competitors), or between competitors in the same profession.
Now I have information that, in a historical move, a consumer of services that are regulated (it is a crime to practice that particular profession without a license, and the profession is regulated by market players without proper supervision by a neutral governmental agency) filed a challenge in court asking the court to allow the consumer to waive protections extended to him by the government in the form of professional regulation/licensing.
The consumer, reportedly, claimed to the court that, as a competent adult, he has a standing to decide whether to accept or reject help offered by anybody, including the government, and, as a competent adult, he chooses to reject consumer protection given him through occupational regulation.
He has chosen a certain unlicensed provider, and insisted to the court he wants to use that particular provider to provide services for him.
He insisted that he knows the provider's educational background and skills, and is happy to use that provider.
He asks the court to issue a decision declaring that he is allowed to opt-out of occupational regulation, for himself only, and to hire an unlicensed service provider.
He also asked the court to issue a decision absolving the provider from any kind of punishment on behalf of the government for providing services to the consumer without a license, in the consumer's particular case.
I have no doubt somehow that the challenge will be denied by the court, and I will not disclose the name of the case, the name of the consumer, the name of the service provider or the type of services sought to be provided by an unlicensed provider - until a decision on that challenge is issued by the court.
But, I am truly interested to see the answer to this litmus-test challenge.
I am truly interested to see how the court will be twisting around the underlying declared purpose of occupational licensing - protection of consumers, and how the court will justify forcing the government's unwanted help and "protection" (through occupational licensing) upon an unwilling competent consumer.
The challenge may show the way for other consumers to follow the path to under occupational regulation that is taking close to 40% of the American work force, and is responsible for unemployment, raising prices and restricting the range of services, stifling innovation and preventing people's travel across state lines because of lack of reciprocity in occupational licensing between states and smaller localities.
Since all of that is done for the benefit of consumers, a consumer must surely have a right to say "no" to occupational regulation, opt out of it, and choose unlicensed service providers of the consumer's choice.
The court will decide whether consumers in this country, while declared to be beneficiaries of governmental "protection" through occupational licensing, are, in fact, captive cash cows for well-lobbied efforts of professions with the government who have no right of choice at all of their own providers of services in private matters.
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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).
“This 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, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"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.
“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.
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Why don't you want to disclose the name of the case?
ReplyDeleteWhy don't you want to disclose the name of the case?
ReplyDeleteI don't want certain people who would want to influence the court to do it before the decision is made. I will tell you the specifics off the blog.
ReplyDelete