"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.

Friday, August 1, 2014

Brain drain and brain dump in the United States

Let's face it, the United States is not topping any lists in educational performance of its students.

Far from it, educational performance of United States students (on the average) is admittedly mediocre, and that is according to official reports.

When my daughter came to an American school from a Russian public school, we were both amazed how easy the curriculum is - as compared to what it is in Russian public schools, or at least was when I was growing up in Russia long time ago and when my older daughter went to school there.

The U.S. is making strong efforts to provide economic incentives to the bright and talented people from all over the world to come and work in the United States - both because within the country, interest of its own students to the "brainy" professions is lukewarm and because the bright and talented professionals from, let's say, developing countries may be cheaper than American college graduates.

Thus, the brain drain may help the U.S. economy, as well as hurt it.

From the point of view of human capital, it is interesting what is happening in the legal profession.

Here, law schools are competitive and are trying to attract students with the best performance, or, in other words, the intellectual elite of the nation.

After graduation and licensing, these same intellectuals are thrown into the murky waters of the practice of law where the best survival tool is scraping and bowing to the judge - no matter how stupid, immoral or incompetent the judge appears to be.

This is a mode of survival for many attorneys.

A retired judge once told me that "I am digging a hole for my client (a female college professor) with my intellectual efforts".  Not only he told me that without reading the record that he was commenting on.  He told me that without any qualms about the discriminatory and sexist nature of his statement.  The retired judge has actually retired from the Appellate Division 3rd Department.  His name is Carl Mugglin.

I noticed that raising constitutional issues is perceived as frivolous, unnecessary and wasteful conduct by most judges in most courts.

Research tools are prohibitively expensive, and, as far as I know, most small-firm or solo attorneys either do without them or reduce them to the bare minimum.

Finally, if you dare to criticize a judge, your license may be pulled, and no matter how skilled, bright or talented you are, you are prevented from sharing your skills, intellect, ideas and wisdom with the public - even the indigent and under-served public.

So, after the bright and talented graduate from law school, they must either engage in brain-dumping and risk brain atrophy by intentionally dumbing down their arguments in order to stay off the radar of judicial wrath and to survive and earn a livelihood, or are dumped out of meaningful employment, because a disbarred attorney has very little chances to get gainful employment.

Brain drain on the one side and brain dump on the other.  Isn't that a waste of human capital - of American college graduates, scientists and engineers, who cannot compete with cheaper foreign work force, and for American law school graduates who either need to dumb themselves down and not show their brains, thus stifling legal innovation, or risk showing it - and risk to be dumped out of professional workforce entirely.

Such a situation is demoralizing to any individual, and particularly to the bright individuals who were lured to law school with claims that they are "intellectual elite".

This "internal emigration" into kitchen dissent by the legal profession while having to publicly brownnose people who are possibly dishonorable and incompetent leads to high levels of stress, alcohol and drug abuse and burnout in the legal profession.

Because of the fear of retribution, attorneys, even the best and the brightest, are unable to show their true potential and help their clients the way they truly can - and that is especially sad in civil rights cases.

Reducing intellectuals to groveling and seemingly brainless sycophants as a point of survival cannot be deemed to be in the public interest.

What is in public interest is to use the human capital of the nation to the best of its abilities.

And that is one more reason for me to claim that independence of the legal profession from the stifling and retaliative control of the judiciary is a matter of urgency in this country.

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