"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.

Wednesday, September 2, 2015

The similarities between coffin making, teeth whitening and eyebrow threading - courts are finally pissed off

Three different courts, at three different (but close) times issued three decisions, all against regulation of professions.

All in no-nonsense terms. 

All with blistering criticism of regulatory schemes.

On March 20, 2013, the U.S. Court of Appeals for the 5th Circuit has struck the so-called "coffin cartel", the regulation of coffin making (as in - simple wooden box making to contain the remains of the dead to be buried in the ground or burnt) by - guess - boards of private funeral directors.

This is how the 5th Circuit described how and why monks started their coffin making business after Hurricane Katrina:

Funeral directors and embalmers could not stand that somebody else is invading their turf and making money on it.

Thus - the Louisiana state regulatory body run by private funeral directors and embalmers plunged the monks into 5 (five!) years of litigation.

That's right, 5 years of litigation were necessary for the monks to establish their right to make those wooden boxes without first undergoing hundreds of hours of expensive "training" and permits from - funeral directors and embalmers, the monks' own competitors-in-trade.

All the monks wanted was to supplement their income by making simple wooden coffins which are more or less affordable to people.  What the monks got is five years of litigation and harassment - not to mention stress and expense. 

The 5th Circuit stated that "Neither precedent nor broader principles suggest that mere economic protection of a pet industry is a legitimate governmental purpose."

And that pretty much sums up the complete illegitimacy of occupational licensing as it exists nowadays.

It does not fulfill its declared purpose (protecting consumers), is making services scarce, less diverse and more expensive, and satisfies interests for monopolization of the market by the private interest groups that regulate the market - in the name of people's safety, of course.

After the 5th circuit's decision, the pet industry litigation continued on other turfs.

On February 25, 2015 the U.S. Supreme Court has struck regulation of teeth whitening by the private cartel (a/k/a State Board) of dentists.

On May 4, 2015 a Consumer Union warned the National Association of Attorney General that the U.S. Supreme Court decision appears to apply not only to teeth whitening, but is "cosmic", applies to all professions run by its own private professionals and may expose states to extreme financial liability (through antitrust lawsuits).

On June 26, 2015 the Texas Supreme Court has struck, on state constitutional grounds (not appealable to the U.S. Supreme Court), regulation of eyebrow threading by the Texas Department of Licensing and Regulation, reversing decisions of two lower courts that ruled in favor of the regulation.  

Some commentators, by the way, argued that the Texas Supreme Court failed to protect Texans from health dangers and made Texas a much more dangerous place to live in.   

The death penalty administered by corrupt criminal justice system does not make Texas a dangerous place to live.  

Immunity of public officials who can kill you, maim you, take your property, children, livelihood away is not a danger to the people.

Unregulated eyebrow threading, teeth whitening, coffin making, what not - is.  Surreal.

It appears from the decisions and from the language of the decisions against pet industry regulation by pet industry players that the courts - finally - are becoming profoundly PISSED OFF by the sheer stupidity of such so-called "regulation", the enormous time that litigating such nonsense takes, the total lack of benefit to the public and the self-serving purpose of the regulation for private regulators.

It appears that occupational regulation, which at this time regulates, for the declared purposes of protecting public safety, of course, HUNDREDS of professions and occupations - from flower arrangements to interior design to hair braiding (yes, you have to have training and permission from the government to braid people's hair), has taken up 1/3 of jobs in the U.S. economy and is hurting the poor, blocking an enormous number of people from being gainfully self-employed and providing for themselves and their families by engaging in innocent and useful trades. 

Courts usually do not pay much attention to the fate of the poor.

So why now?

Why several courts at the same time?

Why no usual deference to the government?

Has the cost of allowing the regulation of the U.S. economy by private interest groups become too much of a burden to the U.S. economy that even the conservative courts took notice and try to reverse the damage already done?

And my final question here - why wouldn't the taxpayers ask their governments to show them how much this litigation, funded out of the taxpayer pockets, cost - and ask taxpayers, finally, do they want such a costly "protection".

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