"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, December 30, 2016

Public schools should not "teach for the test", but law schools should? The glorified brain-dump of the bar exam is further glorified by scared law professors

Let's review the logical chain of events:

  1. Attorneys in the United States and in every state of the United States are licensed to protect consumers of legal services from bad providers of legal services;
  2. Attorney regulation is, thus, help by the government to the consumers in pre-checking providers of legal services for their knowledge, skills and integrity;
  3. An attorney's license is proof of their minimally acceptable knowledge, skills and integrity necessary to provide legal services for the public;
  4. A license can only be given if the attorney passed the bar exam;
  5. An attorney will only be allowed to sit for a bar exam if he graduated from an ABA-accredited law school;
  6. since there is an overproduction of attorneys in the United States for paying jobs, and not enough paying clients, less capable law students want to pay for law school;
  7. since less capable students want to pay for law schools, law schools lower their standards and accept anybody who can line up the money to pay for law school - without any care what kind of providers of legal services law schools will be producing;
  8. as a result, since standards for admission were lowered by law schools, bar passage plummeted;
  9. since bar passage plummeted - ABA started to pluck accreditation, and the government started to stop giving loans for tuition of law schools for which ABA plucked accreditation;
  10. as a result of ABA's threat to pluck accreditation, and of the government to withdraw the lifeline of student loans upon which law schools, and law professors, exist, two law professors, both interested in preserving their livelihood, published an article where they claim that the main goal of law schools is now - gasp! - prepare law students for passing the bar exam.

Not to have knowledge and skills allowing them to properly represent clients - remember the main reason why attorneys are regulated, to provide assurance to the public of minimal qualifications of attorneys?

So, no, law schools do not have to produce attorneys who meet those minimal assurances - they only need to produce attorneys who can pass the bar, a pass-fail one-time brain-dump.

And, this article was published at the time when teachers across the United States are starting to rebel against "Teaching for the Test", claiming that such teaching gives students no real, well-grounded education, does not encourage or develop creative and critical thinking necessary to be a citizen in a democracy, and actually stifles critical thinking.

The bar exam does the same.

Yes, there is a lee-way in answering essays in a free-form, but you have to hit the existing grading points anyway.  You are not graded so much on performance, skills, attentiveness of research.  Law research is slow and time-consuming.

In a bar exam, you have to brain-dump a certain amount of points you were stuffed with during your bar-prep course to score a "pass", and forget about whatever you were stuffed with for the rest of your professional life.

Once you have a license, only criticism of the government or committing a bad crime can cause you to lose it, and even that crime will not be either charged or prosecuted vigorously if you have connections and/or work for the government.

So, law professors whose livelihood depend on law schools that overproduce attorneys that causes unemployment of attorneys that causes less people want to go to law school that causes law schools to grab anybody who can pay, including with loans, which causes low-quality candidates to apply and sit for the bar which causes law school graduates to flunk the bar which causes ABA to pull accreditation from law schools and the government to pull loans for tuition from law schools which causes unemployment among law professors - two law professors who are cause and effect of what is wrong in law education now offer how to fix it, for good.

And, their brain-fruit is: teach for the test!

It is as "refreshingly novel", as it is a mockery of why attorneys are even regulated - because, as a consumer of legal services, I would be disgusted to accept a survivor of a brain-dump as proof of knowledge and integrity, to the point justifying the government to jam that brain-dump survivor down my throat and prohibiting me, under the threat of criminal prosecution for aiding and abetting unauthorized practice of law, to choose a court representative who I trust, license or no license.

It is not teaching for the test that can relieve problems in the market of legal services and the "justice gap".

It is deregulation, removing from the government authority to force consumers to choose providers from a limited government-approved coral, removing from the ABA, a corporation with foreign capital, from deciding the issue of who is and who is not entitled to receive legal education, and less consumers of legal services, every single one of whom is presumed, as a matter of law, to know the law, the competent adults or guardians of incompetents, to decide what is good for them.

But deregulation can leave law professors, and attorneys whose only value for consumers is a pulse and a law license, without their bread-and-caviar.

So, back to test-training, law schools, train to the point of automatic answers without thinking, that's your main job now of those who will later serve as elite in all branches and all levels of our government.

The brain-dump survivors.

They are good for democracy.


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