"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, May 23, 2016
The idea of deregulation of the legal profession became mainstream - "thanks" to U.S. Supreme Court Justice Sonya Sotomayor's attempt to enslave the legal profession
A great argument - for a communist state.
In the U.S., such an argument will eventually legitimize any forced labor under any circumstances - and is a violation of the 13th Amendment and attorneys' due process rights to own their time, their bodies (and not being forced to appear somewhere for free), as well as their income.
Imagine any one of you, my dear readers, are required to provide work for free, as a condition of being able to work and earn a living for your family.
I've been arguing on this blog for two and a half years so far that what needs to be done to close the "justice gap" is to deregulate the legal profession and allow consumers to choose for themselves who they want to represent them in court.
Going from "government knows better who would represent you in court", "you can only choose government-approved/licensed court representatives for yourself" to "a government-approved slave will represent you for free as a condition of earning a living, and will do it well out of professional pride", is going from bizarre to more bizarre.
For the 2.5 years of existence of this blog, my ideas towards deregulation of the legal profession were shared only by economists and consumers, but not by attorneys or "mainstream" law professors.
That is, until May 20, 2016 when George Mason Law School professor Ilya Somin openly opposed Sonya Sotomayor's appeal for forced labor as a condition to practice law.
While stating that forced labor never was, and won't close the "justice gap" for the poor, nor will provide effective or even competent and diligent services, Professor Somin offered three solutions to the problem of the justice gap:
1) deregulation of the legal profession;
2) corporatization of legal services and bundling them with other services - which is not allowed in the U.S. at this time, and is a method introduced in other countries, too, to make legal services more efficient, and with an opportunity for financing of legal services within one corporation by the entire corporation, which may derive income from another business;
3) giving directly the eligible litigants (the poor) paid governmental vouchers to hire an attorney, so that the litigant will be able to chose his own counsel, and thus provide an incentive for attorneys to compete for the vouchers and provide good services.
A law professor who is far from being a radical is offering deregulation as a mainstream issue to help the poor, while attorney regulation is offered to the public as a means to protect interests of consumers (including the poor) - showing that the professor does not believes in authenticity of such declarations, and deems regulation of attorneys as not protecting the consumers, but doing the opposite, hurting the consumers.
Moreover, the idea of offering vouchers directly to the litigants to hire their own attorney is downright brilliant, as it solves several problems at the same time:
1) vouchers given directly to the litigants will eliminate control by judges of assignments of counsel in criminal and family court cases, and by that, assigning cases to either connected attorneys, or attorneys who judges favor; to keep on the assigned counsel list, attorneys will not raise sensitive issues or zealously represent their clients, if that would cause displeasure of the often pro-prosecution and pro-government judge;
2) quality of legal services for the poor will get better, because the poor litigant will be given an opportunity to "vote with their vouchers" and choose only those attorneys who provide good legal services, which will be defined by word of mouth assessments of litigants, and by online ratings.
It appears that the end of attorney regulation is not that far away - now that a law professor from a conservative school is vouching for deregulation, corporatization and voucherization of legal services.
I will monitor how the idea of deregulation and removing control over who represents the poor on assigned cases, will develop and will continue to cover these issues in my blog.