"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 21, 2016

How occupational licensing can turn a democracy into a theocracy: Great Britain yanks a medical license for dissemination of the "wrong scientific belief"

In a religion, adepts of that religion are expected to believe doctrines of their religion blindly.

That's again, in a religion.

Science progresses by putting to the test of proof-by-evidence any hypothesis offered in any specialized field of knowledge.

In a democratic society, people supposedly have freedom of speech on issues of public concern, and nobody is expected, much less mandated by the government to hold certain beliefs.

A requirement that a citizen must hold certain beliefs on the fear of penalty from the government is the feature of a tyranny, not a democracy.

Enters occupational regulation.

In the United States it has become routine to punish people for contents of their their opinions, whether professional or political, by yanking their occupational licenses - and depriving them of their ability to earn a livelihood for themselves and their families.

I wrote on this blog about the epidemic of sanctions against attorneys for their criticism of judges, including criticisms made as part of attorneys' professional opinions, in pleadings.

If you want to practice law in United States, you must keep your mouth shut as to judicial misconduct being committed in front of you, or you will be made to starve - because not only your law license will be yanked but, according to information that I have from various disciplined attorneys, you will be denied or made difficult to receive certification or licensing in other regulated professions, from taxi driving to insurance agents.

And, I wrote about the recent petition for a writ of certiorari to the U.S. Supreme Court of a financial advisor in Nebraska who was fired because of his political statements, so the Nebraska State Department of Banking and Finance put pressure on his employer to regulate his out-of-office political speech, or fire him.  He was fired, with no recourse from the courts so far.

So, if you want to earn a living as a financial advisor in Nebraska, you cannot hold political views such as Robert Bennie had, and especially you cannot express those views publicly.

Great Britain now jumped into the fray with a shameful decision to revoke license to practice medicine from a well-known and experienced doctor - because she dared to claim that the so-called "Shaken Baby Syndrom", the way doctors diagnose babies as having suffered from being shaken by their caregivers - is not based on evidence.

Of course, as of 2011, experts in the U.S. were still debating whether the "Shaken Baby Syndrome" as a diagnosis is, indeed, scientifically valid.

And, as of 2015, scientific evidence emerged that symptoms associated with the Shaken Baby Syndrome, the so-called "triad" of symptoms:

  1. bleeding on the brain’s surface,
  2. swelling of the brain and
  3. bleeding behind the eyes -

  • long-ago injuries;
  • stroke in utero (before birth).
Yet, the SBS diagnosis, and expert testimony about it, has been cause of many convictions, child abuse adjudications and the resulting loss of liberty, parental rights, jobs of many parents in many countries, including the United States.

When there are doubts among experts as to causation of the "triad" symptoms, such symptoms cannot be definitively attributed to intentional misconduct of the caregiver - not beyond the reasonable doubt, not even by preponderance of the evidence.

That is what science says, using scientific methods: there is not enough proof to deem the "triad" symptoms attributable exclusively to the Shaken Baby Syndrome, and thus to convict or yank parental rights of parents whose children are diagnosed with such symptoms.

Now, can this "triad" of symptoms, in a specific case, actually be caused by shaking the baby, a definitely criminal conduct?

Of course, it can.

The only thing the experts say is that the "triad of symptoms" cannot, APART FROM ANYTHING ELSE, used as exclusive proof that the baby suffered from shaking.

All that is needed is more evidence, evidence other than the "triad" symptoms.

But more evidence is not what the lazy social services or criminal prosecutors want - they want easy convictions, or easy adjudications of child abuse and neglect, and for that they need experts rubber-stamping whatever "syndromes" that are necessary to bring about those convictions and child abuse adjudications, whether the "syndromes" are based on science or not.

Many careers of experts, budgets of social services are based on quick and plentiful adjudications of child neglect, yanking children from parents, placing them into foster care and then adopting them out of foster care.

The industry of child protective services is a big industry and it will not yield easily to somebody who want to undermine their livelihood - by, for example, putting in doubt the "sanctified snake oil" theory such as the Shaken Baby Syndrome.

And, when the government controls the livelihood of the expert through professional licensing, it is easy to at least try to put the unruly science into the necessary grove.

But wait, didn't the government, the religious government, try to control science this same way in the past?

In 1642, the great philosopher, astronomer and engineer, Gallileo Gallilei, died in prison at the age of 77, condemned by Catholic church for heresy.

The heresy was, among other things, denying the fact that the Sun revolves around the Earth.

Not only Gallilei was condemned during lifetime and died in prison, but his body was not allowed to be buried where people wanted it - in the front of a cathedral - because of disapproval of the "heretic" by the Pope.

Yet, the Earth revolves around the Sun, whether the Catholic Church - or anybody else - disapproved of it, then or now, or not.

Eppur si muove (and yet it moves) - the words attributed to Gallileo - came to mean simply that scientific theories must be judged on the facts, not beliefs.

Yet, recently, Great Britain has yanked the medical license of a well-known and respected physician, Dr. Waney Squier, simply because she, based on 15 years of personal research, put in doubt that the "triad" of symptoms allow to exclude other causes and definitively diagnose the "Shaken Baby Syndrome".

Reportedly, 350 doctors, scientists and lawyers are protesting revocation of Dr. Squier's license.

The interesting part is that the license was revoked because of alleged "dishonesty" - meaning that the British government now claims to hold the ultimate truth on the scientific issue of whether the "Shaken Baby Syndrome" is or is not supported by scientific evidence.

350 experts say it doesn't.

The Medical Council in Great Britain says it does - and yanked Dr. Squier's medical license, so that she would not be able to look into the ACTUAL causes of the "triad" symptoms instead of rubber-stamping child protective and criminal investigations and prosecutions against parents.

And, the interesting part is that those experts who deny scientific validity of the Shaken Baby Syndrome no longer give evidence in court because they are "afraid of possible consequences" - which says a lot about impartiality of such court proceedings when the government requires a scientific expert to testify in the vein favoring the prosecution, or lose their licenses and livelihoods, as it happened to Dr. Squier.

It all boils down to three things:

1) the actual cause of the "triad" symptoms will not change because prosecutors want them to mean misconduct by parents or caregivers, and bringing about wrongful convictions will not help either the society, or the parents, or children who suffered such symptoms - possibly, not because of misconduct by parents or caregivers, but for other reasons;

2) occupational licensing is supposed to protect consumers of services, and channeling a doctor into having to diagnose a cluster of symptoms the way expected by criminal prosecutors in order for the prosecutors to win cases, does not help the patient to obtain the proper diagnosis - and proper treatment;

3) a government that mandates BELIEFS of any kind, including the belief in the validity of the Shaken Baby Syndrome (as the Catholic Church mandated belief that the Sun is revolving the Earth in Galilei's time), is not a democracy, it is a theocracy.

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