"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, October 9, 2015

Occupational regulation - the offer of help that takes away your right to choose

Occupational regulation is based on the concept that consumers need to be helped by the state in their choices of providers of valuable services.

When you are offered help, usually a competent adult has a choice - to accept or decline help.

And, if somebody is offering you help for any reason, including the situations where the helper is the State (while you are the sovereign [as in "We the People" and the State is YOUR servant), your rights should not be DIMINISHED by this OFFER OF HELP, right?

It's logical, isn't it?

Now, let's see what happens with occupational licensing.

You have a right to choose a provider of services in a certain field.

The right of competent adults to enter freely into contracts is also constitutional right, U.S. Constitution, Article I, Section 10, Clause 1.

Now, in the field of occupational regulation, the state offers you HELP in choosing a provider, and at the same time, makes acceptance of that help mandatory for you.

Once a certain profession becomes "regulated" by the state - and usually that happens through requests of industry insiders wanting to protect high prices and fight competition in their field, thus HURTING you as a consumer - the state hypocritically offers you "help" in choosing from a list of "state-approved" providers, while at the same time takes away your right to decline that help, say "no, thank you" and go on your merry way choosing whoever you want to choose to provide a service you want, the way you want it, for your money.

So - if anybody else offers you help, you can say "no, thank you" and do what you want, within the boundaries of the law.

If the state wants to offer you "protection" as a consumer, wants to help you choose a provider of services for you better, the state, by virtue of such an offer of help, feels entitled to cut off your choice to say "no".

I do not believe the state has such a right, and I do not believe, for that reason, the general scheme of occupational regulation in this country is legitimate.

The legal doctrine that the government uses to jam its help in choosing providers of services down your throat, without a right to say "no, thank you, I will choose myself" is called "parens partriae".

"Conceptually, the doctrine is derived from the king’s royal prerogative as “the general guardian of all infants, idiots and lunatics",  Hawaii v. Standard Oil Co, 405 U.S. 251, 257 (1972) 
(quoting 3 W. BLACKSTONE, COMMENTARIES *47) (note the offensive language by which the "guardian state" referred to individuals with mental illnesses or diminished cognitive abilities).

Ok.  So, the "parens partiae" doctrine was applicable only to cases where the state had to protect interests of people with dimished capacity.

Which brings me to the question of legitimacy of occupational regulation.

WHY would the state have to protect the interests of COMPETENT ADULT CONSUMERS?

Of course, there will be claims that governmental approval of educational and "character" level of providers makes it easier for consumers to choose an appropriate professional and amens it easier for the consumer to avoid charlatans. 

Unfortunately, real life shows that it is not so.

Government approval does not guarantee quality, and there are a lot of good professionals blocked by the lack of government approval, or rather, approval by the private interest groups, industry insiders, who run licensing and disciplinary boards without any regard to or even participation from the consumers.

In fact, bars to entry into the profession are put in by industry insiders and not by consumers, and those who dare to practice the profession without approval through licensing are most often challenged by the industry insiders, their competitors, and not the consumers who use and like more affordable and diverse services then those from the overpriced licensed and privileged insiders of the regulated industry.

Since licensing of most licensed occupations is handled by anticompetitive cartels, supermajorities of private insiders of the regulated industry without meaningful - or any - participation by consumers, such private antitrust cartel activities may not by any stretch of imagination be called taking care of consumers.

Moreover, it should be offensive to the consumers who are competent adults, to be treated by the state as people of diminished capacity unable to choose for themselves providers of important services.

Consumers should have a right to choose provider of any service, as well as be the judge of that provider's qualification and training.

If it suits the consumer, who is a competent adult, the inquiry must stop there.

Protectionist policies (or, rather alleged protectionist policies for consumers - because in reality they protect only powerful industry insiders) should be applicable only to persons of diminished capacity, who has no guardian who can make a choice of provider of important services.

The State should stop pretending that it treats all adult citizens, voters and taxpayers, as incompetents, for purposes of restriction of THEIR choice of providers of various services, under the guise of help.

Occupational regulation as it exists today, hurts the economy and restricts consumer choices.

As with any other offers of help, when help in choosing a provider of services is offered by the government (public servant), the consumer should be able to have a right to say :  "no, thank you, I will choose on my own, whoever I want".

And such an option must be worked into the occupational regulation schemes, otherwise such "help" is nothing more than blatant market protection for powerful industry insiders, in violation of federal antitrust laws.

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