"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, May 5, 2016

The stubborn D.C. Circuit Court of Appeals added to the death toll of occupational - and attorney - regulation in the United States

In July of 2013, the U.S. Court of Appeals for the D.C. Circuit invalidated as unconstitutional the setup where Amtrak, a for-profit corporation was given by Congress in 2008 a joint authority with the Federal Railroad Administration (FRA) to issue “metrics
and standards” addressing the performance and scheduling of passenger railroad services.

The D.C. declared unconstitutional Amtrak's regulation of the railroad industry, on the basis that the U.S. Congress may not delegate a governmental function to a for-profit corporation.  

"Because Amtrak must "be operated and managed as a for-profit corporation," 49 U.S.C. § 24301(a)(2), the fact that the President has appointed the bulk of its Board does nothing to exonerate its management from its fiduciary duty to maximize company profits."

And that purpose to maximize profits may run afoul of the governmental interest to promote the best interests of the public in such regulation.

On March 9, 2015, the U.S. Supreme Court reversed and remanded, saying that the status of Amtrak as a for-profit corporation, does not preclude it from being ALSO appointed as a regulator of an industry.

On remand, the stubborn D.C. appellate court struck at Amtrak for the second time.

On April 29, 2016, the D.C. court invalidated the arrangement as unconstitutional once again, now on due process grounds.

The question that the D.C. court resolved was now, after the U.S. Supreme Court's reversal on governmental status grounds, this:

"Conceding Amtrak’s governmental status, the operators—
represented by the Association of American Railroads—ask:
Does it violate due process for an entity to make law when,

economically speaking, it has skin in the game?" 

The freight railroads, competitors of Amtrak, argued that the statute in question 

"is unconstitutional because it (1) vests rulemaking
authority in the hands of interested private parties, and (2)
empowers Amtrak with power to enhance its commercial
position relative to other market participants".

Ok, so the argument was that "the PRIIA “violates the due process rights of regulated third parties” by “[v]esting the coercive power of the government in interested private parties.

The D.C. Court provided a great fairness analysis of the issue:

And even greater is the conclusion:  

giving a self-interested entity regulatory authority over its competitors violates due process.

The D.C. Court cited to the a U.S. Supreme Court case, Carter v Carter Coal Co., which "invalidated a delegation that empowered one set of competitors to regulate a rival set".

This is yet another illustration that the U.S. Supreme Court does not adhere to its own precedents and creates a patchwork of precedents that contradict one another, hurting rather than helping litigants and undermining the whole concept of predictability of application of the law, which is the main principle of the rule of law.

In analyzing the Carter case, the D.C. court found:

The court then referenced a law review article on self-interest in private-pubic partnerships

That law review article itself cited as one of the cases the North Carolina Board of Dental Examiners controversy (the law review was written in 2004) 

The controversy in the North Carolina Board of Dental Examiners culminated, 11 years after the law review was written, in February of 2015, in a U.S. Supreme Court decision striking immunity of self-interested market players in occupational regulation as to antitrust liability.

Here is the conclusion of the D.C. Court based on Carter v Carter Coal (a 1936 U.S. Supreme Court case that the U.S. Supreme Court seems to have forgotten):

I wholeheartedly agree.

Due process is violated when a self-interested entity is entrusted with the power to regulate the business of a competitor.

So, what now about the disciplinary boards of professionals regulating their own competitors?

Dentists regulating dentists?

Doctors regulating doctors?

Plumbers regulating plumbers?

Lawyers regulating lawyers?

It appears that there is a strong case in support of a notion that such regulation and discipline imposed as a result of such regulation, discipline affecting people's right to earn a living, is:

  • a violation of due process;
  • an "intolerable interference with personal liberty and private property", and
  • "transgresses the very nature of governmental function".

Thank you, the U.S. Court of Appeals for the D.C. Circuit, for putting yet another nail into the closing coffin of competitor-run regulation of professions in the United States.

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