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.


Thursday, February 5, 2015

When the decision-maker and the expert in regulation of the market are market participants - protection of consumers goes out the door


Heard an argument before the U.S. Supreme Court today (see the previous post) for and against using private professionals, market participants, for regulation of the same market.

The case was about teeth whitening and whether it is the practice of dentistry.

The U.S. Supreme Court justices definitely were not experts in dentistry.

Yet,  I heard arguments from the judges about who should regulate neuro-surgeons and why shouldn't neuro-surgeons (experts) regulate neuro-surgeons.

My question to the judges then is - why are they there on that bench and why do they allow themselves to decide a case about regulation of dentistry instead of allowing dentists to get on that bench and decided it for themselves?

The ultimate question, in my opinion, is the distinction between the two groups which are now conflated:

(1) the panel of who decides for the benefit of protection of consumers (which is the whole declared point of occupational licensing);  and

(2) the experts that the panel that is vested with making such decisions use to inform them, as neutral experts, of what they need to know.

That is exactly the same as what is happening in courts.

A judge (like the U.S. Supreme Court justices in this case) is not an expert in dentistry, chemical engineering, dentistry, medicine, whatever is the topic of the case in front of the judge.

(If a judge is an expert in law, and the case is about regulation of lawyers, the judge should not be using his or her expertise, because that will mean utilizing unsworn and un-told testimony of the judge as a witness on behalf of one of the parties.)

Yet, when the judge or the jury, however the case is heard, by a jury trial or by a bench trial, does not have enough knowledge in a particular field to make an informed decision, that is when the party bearing the burden of proof must bring forth before the court a NEUTRAL expert to provide this missing information.

A practitioner in the field is hardly a neutral expert.  For purposes of a case involving occupational licensing, neutral experts would have to be researchers with knowledge in the same field, but with no financial motivation in restricting competition in the profession.

Lawyers are a knowledgeable bunch and they know exactly what is going on and why they want to keep the status quo the way it is.

Unlike a court where both the decision-maker and the expert informing the decision-maker must be neutral, disciplinary proceedings in occupational licensing are where the decision-maker and the expert informing the decision-maker are ONE and NOT NEUTRAL - which is a big anti-trust and anti-competitive problem.

Such a regulatory scheme which is allegedly designed to protect the public, is in fact designed to do the opposite.

In the legal profession, where all judges on the panels regulating lawyers are lawyers themselves who, on expiration of judge's terms or on retirement, will practice law, even though they are not practicing (presumably) at the time of presiding over the proceedings, such judges may not be 100% considered not private market participants, at least with a vested, but delayed interest in restricting competition in their profession for personal gain.

What should be happening in the legal profession is that it should not be regulated at all, since regulation of lawyers by the government strips lawyers of independence when a necessity arises, on behalf of clients, to challenge actions of any of the three branches of the government, and strive to obtain an impartial judicial review of their claims.



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