"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.

Thursday, February 5, 2015

The oral argument before the U.S. Supreme Court whether market participants appointed to regulate occupational licensing may be deemed private actors for antitrust purposes

This is the case of The North Carolina State Board of Dental Examiners v. Federal Trade Commission which has made it all the way to the U.S. Supreme Court.

The essence of the case is that private dentists on the North Carolina Board of Examiners pursued lay individuals engaged in teeth whitening for unauthorized practice of dentistry, and the question is whether that is proper enforcement of state interests or private anticompetitive practices.

The interesting part is that there is an amicus curiae brief filed raising the question that the state bar associations are engaged in the same type of anti-competitive practices as the dental associations.

The case was heard by the U.S. Supreme Court in October of 2014.

Listen to the oral argument - it is quite interesting.  The link to the oral argument in front of the U.S Supreme Court is located here.

The way the legal profession is regulated (at least in New York) is by disciplinary committees where the absolute super-majority of such committees consists of practicing private attorneys, all members of the committees are appointed by the courts without any supervision and in complete discretion, there is no oversight over committee's work and there is no discipline over misconduct of committee's members.

There are no constraints, therefore, to use the membership of the committee for any number of anticompetitive practices rather than for the direct purpose of protecting the public, and what helps that is:

(1) supermajority of the committees are practicing private attorneys;
(2) there is no oversight over appointment of members;
(3) there is no oversight or discipline over conduct of members;
(4) discretion of members to prosecute or not to prosecute is absolute;
(5) members are free to pursue their own competitors and to absolve politically-connected attorneys turned in for prosecution in exchange of accepting them as private clients or law partners.

All of the above hardly characterizes a state regulations, but rather using the state regulatory scheme to promote anti-competitive self-interest of the politically connected private lawyers, to the detriment of the consumers.

Let's see what the U.S. Supreme Court will rule regarding the dentists' case.

The appeal is from the decision of the U.S. Court of Appeals for the 4th Circuit affirming the decision of the Federal Trade Commission that the North Carolina State Board of Dental Examiners illegally thwarted lower-priced competition by engaging in anticompetitive conduct to prevent non-dentists from providing teeth whitening services to consumers in the state.

The amicus brief of LegalZoom and others supporting the position that the practice of the states to use private professionals to regulate other professionals may be regarded as a private tool of quashing competition can be found here.

The amicus brief of the North Carolina bar association supporting the ongoing regulation of the legal profession through the use of private lawyers can be found here.

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