"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, May 13, 2016

The epic in-fight regarding bar prep education, complete with an embattled 92-year-old federal judge messing up with the "wrong" class action, and now removed from it

In 2008, a group of law students filed a lawsuit against West Publishing Corporation bar prep course BarBri claiming that BarBri monopolized the market of bar preparation, squashed competition and that, as a result, consumers (law graduates) preparing for the bar examination are deprived of bar-prep services of a higher quality at a competitive price.

You can see the entire complaint here.

It is 58 pages, and I encourage you to read it.

It alleges, in detail, how BarBri monopolized the market of bar preparation using:

  • intimidation;
  • unlawful market sharing agreements;
  • unlawful price-fixing agreements;
  • buying up copyright and then suppressing superior preparation materials, 
  • buying up businesses of alternative bar prep courses,
  • offering alternative bar-prep businesses lucrative "consulting" contracts as an incentive to oust them from the bar-prep market;
  • attempting to destroy credibility of professionals supporting other courses;
  • engaging law school professors to post mandatory law school assignments on the Westlaw pages, so that students would not avoid being bombarded by BarBri advertisements etc.

The complaint described one or more of the above tactics in describing interaction of BarBri with the following competitors in the bar prep market: 

  1. BRC;
  2. Becker;
  3. PMBR;
  4. Marino;
  5. Pieper (New York);
  6. West Bar Review;
  7. Kaplan;
  8. Louisiana;
  9. Supreme Bar Review (Ohio);
  10. DeVry;
  11. Rigos;
  12. Bar Secrets;
  13. LexisNexis
Moreover, the complaint alleged that BarBri imposes anti-competitive conditions on its "faculty and staff"

And, remember, while teaching law school, "some" professor post their assignments on BarBri owner's website (Westlaw), so that law students must read those assignments on Westlaw and cannot avoid being bombarded with BarBri advertisements.

At this time, the following "award-winning" faculty members are advertised on BarBri's website (I will analyze the conflicts of interest of these professors in a separate blog).

The U.S. district judge Manuel T. Real (date of birth January 27, 1924) presided over the federal class action.  

In that action, Judge Real, who was 84 years of age at the beginning of litigation and 92 years old now:

1) dismissed the complaint in 2008 - in a 2-page decision without an opinion, explanation or reasoning;
2) disapproved the settlement in 2011 after the appellate court directed it and denied all attorney fees to Plaintiffs;
3) denied reconsideration of that disapproval and denial of fees

and then approved the settlement, but cut Plaintiffs' attorney fees from $1.9 mln to $585,000 - and the costs of such a class action, including investigation must have been enormous.

Yesterday, the U.S. Court of Appeals for the 9th Circuit made an epic decision not only reversing Judge Real, but directing the district court to reassign the case, after 8 years of litigation, to another judge, pointing out that Judge Real cannot rule fairly in that case.

Judge Real is on the federal bench since 1966 - for 40 years, he actually served as a Chief Judge of the U.S. District Court for the District of California from 1982 to 1993, for 11 years.

In 2006, Judge Real was subject to impeachment investigation as to how he handled a bankruptcy case, which was later dropped, Judge Real remained on the bench, and was given, possibly, a job to stall an antitrust class lawsuit of adamant law students against the omnipowerful bar-prep monopolist - a job he carried out superbly for 8 years.

The 9th Circuit apparently had to end this national embarrassment of a "court proceeding" by requiring reassignment of another judge to this case.

The 9th Circuit's decision is epic because it finally - after 8 years of litigation - recognizes the judge's bias.

I must note that no motions to recuse were filed during these 8 years - consider how intimidated attorneys were that reassignment to another judge had to be directed, obviously sua sponte, by the 9th Circuit.

I am saying "sua sponte" (on the 9th Circuit's own motion) because, since no motion to recuse was made in the court below, such issue could not be raised on appeal.

So, this case is about 

  • epic antitrust activities in preparation of law graduates to take the bar - and thus prove to consumers that they are a "safe choice" in the market of legal services;
  • epic bias of the federal judge who tried to dismiss or hurt plaintiffs and their attorneys for daring to bring such a lawsuit, dragging litigation for 8 years;  and
an epic question - how can this setup where education of law students is not only not superior, but where superior prep courses are bought up and suppressed, or their authors intimidated, discredited, bought up or drive out of business - how can this setup, this education obtained from an anticompetitive country-wide cartel, be considered a guarantee BY THE GOVERNMENT to the consumers of quality and integrity of the only providers that consumers can choose for court representation?

Does it make any sense to you?

Does not make any sense to me.

As to a separate blog about professors serving BarBri, and about the impeachment proceedings against Judge Real that somehow came to nothing, allowed him to remain on the bench and engage in further  misconduct, stay tuned.

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