"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, March 30, 2016

A clamp down on immunities in disciplinary cases in occupational licensing - are we seeing a new policy emerging, to save the U.S. economy from further stagnation?

As many economists so far have been warning, in scholarly articles and books, occupational licensing in the United States, which now restricts entry and participation in over 30% of jobs (and, probably, close to 80% or more of well-paying jobs) in the U.S., is not helping consumers, is not evidence-based, is the result of lobbying efforts of interest groups that want to restrict competition, and is stifling the U.S. economy.

While federal courts are not allowed to engage in policy-making, that's a legislative function exclusively given by the U.S. Constitution, Article I, to the U.S. Congress - they do engage in that policy-making, and heavily so.

That is done by trends in court decisions.

The two decisions in occupational licensing on issues of immunities of the disciplinary board from civil rights lawsuits in 2015 may herald a turn of higher-level federal courts against their prior universal position to grant immunities to disciplinary authorities in occupational licensing no matter what.

In February of 2015, in the case North Carolina Board of Dental Examiners v Federal Trade Commission, the U.S. Supreme Court denied immunity to disciplinary boards in professions regulated by its own professionals ("market players").

In June of 2015, the U.S. Court of Appeals for the 6th Circuit denied even qualified immunity as a matter of law to a disciplinary board sued after it suspended occupational licensees' licenses for refusal to give self-incriminating testimony in disciplinary proceedings, and remanded the case to a trial in the district court.

In July of 2015, the White House has issued a "policy" report on occupational licensing starting with this "executive summary":

In October of 2015, the Federal Trade Commission has issued a harsh rule to its staff for prosecution of antitrust violations by the occupational licensing disciplinary boards, based on North Carolina Dental, outlawing "active market supervision" by market players in the disciplinary proceedings (like it happens in "market supervision" of the legal profession, for example).

Usually, in disciplinary proceedings, federal courts give to prosecutors ABSOLUTE prosecutorial/quasi-judicial immunity left and right, and claim that such immunity is jurisdictional, and even sanction victims of such prosecutors for daring to sue them in civil rights cases.

In this case, the 6th Circuit denied to prosecutors even QUALIFIED immunity - as a matter of law, whether such immunity can be granted as a matter of a mixed issue of fact and law, is remanded back to the district court.

The beauty of the issue is that remanded for trial the issue whether qualified immunity applies, exposes prosecutors to a trial on damages - as the 6th Circuit expressly said in its decision - and that is exactly what prosecutors are usually spared, on the basis of ABSOLUTE quasi-judicial/prosecutorial immunity.

It appears that we are seeing a trend, starting from the highest level (which did not reach the mentalities of district courts and state governments yet) to clamp on occupational regulation:

1) by denial of antitrust "state interest" immunity (the U.S. Supreme Court in North Carolina Board of Dental Examiners v FTC, February 2015), and

2) by denial of absolute - or even qualified - prosecutorial and quasi-judicial immunity (the 6th Circuit in Moody v Michigan Gaming Board, June, 2015).

The trend appears to be caused not by the need to apply the rule of law and uphold people's constitutional right to earn a living, but because of money matters - because the U.S. economy will not be able to get out of its apparent current stagnation unless it unplugs its occupational licensing cancer.

I will continue to follow this trend.

Stay tuned.


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