A solution of how to undo the Gordian knot of occupational licensing has been offered in Tennessee

A major breakthrough in civil rights and, believe it or not, in rendering boost and help to the U.S. sagging economy, as well as in attorney regulation, may have come from Tennessee.  

In Tennessee, an unusual lawsuit regarding monopoly in occupational licensing was filed several days ago.

The issue in the lawsuit is state monopoly in occupational licensing on the right to shampoo people's hair for pay.

The State of Tennessee requires a license and 300 hours of training in "theory and practice of shampooing" in a government-approved school.

Naturally, people who add to their income through shampooing other people's hair, do not have money to undergo this rigorous "training".

Of course, a child can shampoo her own, and her siblings' hair quite expertly without any license or training.

But, here the quirk is, and that is what the lawsuit alleges - that the Tennessee State Constitution, Article I Section 22, prohibits existence of monopolies, and protects its citizens from monopolies.

If that is true, occupational licensing, including attorney licensing, is unconstitutional in Tennessee under the State Constitution - which every judge is sworn to uphold.

Yet, every judge in the State of Tennessee is a licensed attorney and PART, the judiciary is the REGULATOR of the monopoly, and thus the PROMOTER of the monopoly, which, under the Tennessee Constitution, is a violation of Tennessee judges' constitutional oaths of office.

Since occupational licensing is stifling this country's economy by stifling mobility of this country's work force upwards (from low income to higher income) and across state borders (where state and even municipality-restricted licensing raise prices and prevent competition), and even President Obama recognized it recently in a report issued in the summer of 2015, the Tennessee "shampooing lawsuit" may prove as a major breakthrough.

But, don't expect help from the feds in this situation.

The recent decision in North Carolina Board of Dental Examiners v FTC stripping disciplinary boards consisting of market players of antitrust immunity, proved so far to be a toothless tiger and gave states a hint how to perpetuate the monopoly in occupational licensing that is stifling the U.S. economy (over 1/3 of the U.S. labor market is licensed, according to North Carolina Dental and the Obama Report of 2015).

Immediately after the North Carolina Board came out, there were articles hopeful that the North Carolina Board will actually help the situation and strip the bar of the monopoly in court representation.

I was part of those who held those hopes, and I still do think that the North Carolina Board case can be used to undermine the bar monopoly somewhat - but not completely, because, even if they were stripped of antitrust immunity, they will be asserting other immunities, sovereign immunity, quasi-judicial and prosecutorial immunities, and still win, despite engaging in anti-competitive activities.

The North Carolina Board is actually a dangerous precedent for freeing the U.S. labor market from the stifling grip of occupational licensing, as it created an alternative for the states as to how to comply with federal antitrust laws:

either 

1) active state supervision by a neutral body over market players overpowering the disciplinary boards - and thus acting in their anti-competitive interests rather than the interests of the consumers;

or

2) create statutes on state level that legitimize the monopoly as it is.

No state supervision was provided so far in any states for occupational licensing, but state legislatures are getting together to invent means of legalizing the monopolies.

For example, I was recently alerted by a reader to a presentation created by the National Conference of State Legislatures, discussing North Carolina Board in detail, and what the legislatures "can do about it".

The Tennessee lawsuit points out at the way of making the loophole of North Carolina Board unavailable to states who enhance their citizen's protection through a state referendum amending their state Constitutions - if protection from monopolies are not yet in those state Constitutions, as it obviously is in the Tennessee Constitution, Article I, Section 22.

So, for the entire time that the Tennessee state government regulated professions - as well as the legal profession, as a monopolist, it did it in violation of State Constitution.

Meaning that all state regulations and criminal statutes for unauthorized practice of - from shampooing to braiding to law - are unconstitutional under the State Constitution.

People and attorneys of the State of Tennessee, rejoice, you have a protection against the grip of occupational licensing in your own State Constitution, and whatever the court says, it cannot change that Constitution.

As to people whose State Constitutions do not have a prohibition on monopolies yet - that's the work in progress, we need to hold state referendums and amend state Constitutions to include such a prohibition.

If monopolies - any monopolies, including state-established monopolies - are all extinguished, the country's economy will benefit, we all will benefit.

To consumers of legal services: when you are told by the government that you must choose your court representative from licensed professionals because they are better trained, you may be duped. The list of law professors working for a bar-prep monopolist.

Yesterday, I wrote about a class action against the bar-prep course BarBri, owned by West Publications Corp.

The federal lawsuit (the complaint is included in full here), as it was in the previous blog, contained allegations as to how BarBri uses law school professors to promote its monopoly:

I obtained names of professors who teach for BarBri from BarBri's own online advertisements, and then grouped them by states and by schools.

Here are the lists.

From BarBri advertisements of faculty, here and here, I counted 

• 54 professors from 
• 18 jurisdictions and 
• 38 law schools:

The 18 jurisdictions where BarBri hired law professors for its bar-prep courses (let's note that BarBri did not hire professors evenly from all 50 states):

1. California
2. Connecticut
3. Delaware
4. Florida
5. Georgia
6. Illinois
7. Maryland
8. Massachusets 
9. Minnesota
10. New  York
11. New Jersey
12. North Carolina
13. Ohio
14. Pennsylvania
15. Texas
16. Virginia
17. Washington
18. Washington, D.C.

The 38 law schools, with states and numbers of professors from that school involved in teaching for BarBri:

Loyola Law School	California	2
University of Califronia, Irvine School of Law	California	1
Pepperdine University School of Law	California	1
University of California, Berkeley School of Law (Boalt Hall)	California	1
University of Southern California Law School	California	1
University of Connecticut Law School	Connecticut	1
Yale Law School	Connecticut	1
Widener University School of Law	Delaware	1
Florida International Univeristy College of Law	Florida	1
University of Miami School of Law	Florida	1
Emory School of Law	Georgia	4
Northwestern University School of Law	Illinois	1
University of Illinois College of Law	Illinois	1
University of Baltimore School of Law	Maryland	1
Boston University School of Law	Massachussetts	1
Harvard Law School	Massachussetts	1
Seton Hall University School of Law	New Jersey	2
Brooklyn Law School	New York	1
Benjamin N. Cardozo School of Law Yeshiva University	New York	1
Columbia Law School	New York	2
Cornell Law School	New York	1
Fordham School of Law	New York	2
University of North Carolina School of Law	North Carolina	1
Duke University School of Law	North Carolina	2
Ohio State University Moritz College of Law	Ohio	2
University of Pennsylvania School of Law	Pennsylvania	1
University of Texas School of Law	Texas	1
University of Houston Law Center	Texas	2
SMU Dedman School of Law	Texas	1
South Texas College of Law	Texas	1
University of Texas School of Law	Texas	1
George Mason School of Law	Virginia	1
Univeristy of Richmond School of Law	Virginia	1
Seattle University School of Law	Washington	1
University of Washington School of Law	Washington	1
University of Washington School of Law	Washington	1
Catholic University of America Columbus School of Law	Washington, D.C.	1
George Washington University School of Law	Washington, D.C.	3

The list of 54 professors teaching for BarBri, as advertised by BarBri today:

Brian, Robert	Associate Clinical Professor of Law, Loyola Law School	California
Chemerinsky, Erwin	Dean, University of California, Irvine School of Law	California
Levenson, Laurie	Loyola School of Law	California
Pushaw, Robert	Pepperdine University School of Law	California
Talley, Eric	University of California, Berkeley School of Law (Boalt Hall)	California
Altman, Scott	University of Southern California Law School	California
Lahav, Alexandra	University of Connecticut Law School	Connecticut
Harrison, Robert	Yale Law School	Connecticut
Scheuer, Luke	Widener University School of Law (DE)	Delaware
Carbot, Christopher	Associate Director of Recruitment Adjunct Professor of Legal Skills and Values, Florida International University College of Law	Florida
Stotzky, Irwin	University of Miami School of Law	Florida
Satz, Ani	Associate Professor of Law, Emory University School of Law	Georgia
Andieh, Robert	Emory School of Law	Georgia
Freer, Richard D.	Emory School of Law	Georgia
Holbrook, Tim	Emory University School of Law	Georgia
Redish, Martin	Northwestern University School of Law	Illinois
Bilz, Kenworthey	University of Illinois College of Law	Illinois
Sloan, Amy	Associate Dean for Academic Affairs & Professor of Law, Univeristy of Baltimore School of Law	Maryland
Lawson, Gary	Boston University School of Law	Massachusetts
Goldberg, John	Harvard Law School	Massachusetts
Klass, Alexandra	University of Minnesota Law School	Minnesota
Sebok, Anthony	Benjamin N. Cardozo School of Law Yeshiva University	New  York
Ponsa, Christina	Columbia University School of Law	New  York
Cornwell, Kip	Seton Hall University School of Law	New Jersey
Franzese, Paula	Seton Hall University School of Law	New Jersey
Reiss, David	Associate Professor of Law, Brooklyn Law School	New York
Rossi, Faust	Cornell Law School	New York
Kraus, Jody	David E. Kaufman & Leopold C. Glass  Professor of Law and Professor of Philosophy, Columbia University School of Law	New York
Neustadt, Frederick	Fordham School of Law	New York
Flaherty, Martin	Fordham University School of Law	New York
Arlen, Jennifer	Norma Z. Paige Professor of Law, New York University School of Law	New York
Kennedy, Joseph	Associate Professor of Law, University of North Carolina School of Law	North Carolina
Metzloff, Thomas	Duke University School of Law	North Carolina
Salzman, James	Samuel Fox Mordecai Professor of Law, Duke University School of Law	North Carolina
Cole, Sarah	Ohio State University Moritz College of Law	Ohio
Dressler, Joshua	Professor & Frank R.  Strong Chair in Law, Ohio State University Moritz College of Law	Ohio
Robinson, Paul	University of Pennsylvania School of Law	Pennsylvania
Williams, Sean	Assistant Professor of Law, University of Texas School of Law	Texas
Tilton-McCarthy, Lisa	Associate Professor, University of Houston Law Center	Texas
Forrester, Julie	SMU Dedman School of Law	Texas
Ryan, Meghan	SMU Dedman School of Law	Texas
Rensberger, Jeffrey	South Texas College of Law	Texas
Moll, Douglas	University of Houston Law Center	Texas
Johanson, Stanley	University of Texas School of Law	Texas
Alvare, Helen	George Mason School of Law	Virginia
Epstein, Paul	Univeristy of Richmond School of Law	Virginia
Ramasastry, Anita	D. Wayne & Anne Gittinger Professor of Law Professor of Law, University of Washington School of Law	Washington
Ahrens, Deborah	Seattle University School of Law	Washington
Said, Zahr	University of Washington School of Law	Washington
Scordato, Marin	Catholic University of America and Columbus School of Law	Washington, D.C.
Schooner, Heidi	Catholic University of America—Columbus School of Law	Washington, D.C.
Schaffner, Joan	George Washington University Law School	Washington, D.C.
Fairfax, Lisa	George Washington University Law School	Washington, D.C.
Schechter, Roger	George Washington University Law School	Washington, D.C.

These are some preliminary statistics.

I will post some more information about the professor, schools and conflicts of interests involved in law school professors of particular schools to teach at BarBri, and analysis of the statistics later on.

The lists above can be used by law students to verify whether their professors support monopolistic grasp of its employer BarBri in assignments of tasks at law school, as alleged in the federal complaint above.

It is obvious that law students, and law graduates, are entitled to see copies of contracts and earnings of professors from BarBri, to see which of the jobs, the law school faculty, or the BarBri faculty, is more lucrative.

It is especially important to see contracts of professors from both jobs if the law school is a state law school, and professors are state employees.

And, in view of information in the federal complaint that BarBri may be squashing competing scholarship, professors who work for BarBri may be participating in that squashing (of competitors' scholarship), to their own benefit.

BarBri boasts in its advertisements that the list of its "faculty" reads like "Who's Who".

Yet, in view of the class action, participation of professors in BarBri can demonstrate the opposite - that BarBri picks professors who are willing to bend to its ways.

Had I been in law school at this time, I would be really interested if what my professor is teaching me is the best available scholarship, or if the best available scholarship was squashed through BarBri methods, as part of the bargain between BarBri and participating professors.

After all, that's what BarBri was alleged to have done before, 

and by settling before trial, BarBri does not allow these issues to be tried and the truth revealed.

The issues are significant.

The federal lawsuit alleges that 

• law school professors and "student representatives" were "co-opted" to drive competitive and good courses out - like the Bar Secrets that was created by a lawyer and psychologist and produced a 16% higher bar passage rate than BarBri, 
• student government of law schools engaged in blocking advertisement of competitors;
• moles hired to discredit competitors;
• FBI agents hired to break into competitors' databases to obtain competitive materials.

Yes, those are allegations and, since the case settled, we will never know whether the allegations were true or not.

But, the allegations were there, were submitted under oath, and students have a right to ask whether what was alleged was really happening.

Here are some of the allegations - and I encourage my readers to read the entire complaint.

 And here are allegations about the Bar Secrets:

Law students, in my opinion, should be really worried whether 

• their law professors;
• student government and
• the law review student team

are selling them out because they are bought up by BarBri, into accepting a product that is costly, but not better, or maybe worse than the possible competition which was suppressed.

As a disclaimer - I personally did not take BarBri, I took a competitive course that was not mentioned in the lawsuit.  The course came on an iPod, allowed me to re-listen to the course as many times as I wanted, had superior books and materials with it, and cost about 3 times less than BarBri.  Since I am not posting this blog to advertise any bar-prep courses, I do not feel I need to disclose the name of the course I took.

Yet, I remember how my friends from law school were complaining that they are only hearing the lecture once, and that is not enough for thorough understanding, while I could re-listen any number of times, and my materials were very satisfactory and clear.

*   *   *

 Let's not lose the perspective here in all these details.

We are talking about training in the profession that gained monopoly for court representation in this country based specifically on claims of superior training of licensed professionals.

At this time, consumers of legal services are REQUIRED to accept help from the government by having to choose for their court representation - in civil, family, and criminal cases, including death penalty cases - from only government-approved individuals, while the government controls those individuals' livelihoods, and the government actually is on the other side of cases where the most significant loss of constitutional rights may occur.

The government imposes upon the public its "vetted" individuals by the fairy tale of the alleged superior training of those government-vetted individuals.

THIS is how the licensed professionals are trained, in the allegations of law students themselves (all plaintiffs in the class actions were law students and law graduates).

So, when we, as consumers of legal services, are told that we cannot choose a court representative of our choice because the government "helps" us by training an army of such professionals to "protect us" 

- while those same trainees are suing in court to get good training, alleging that the good training is blocked by a monopolist that is buying up their law professors, imposing false advertising, blocking superior training courses and individuals from the market, and employing various tricks worthy of a bad TV crime story 

- we have a problem here, a matter of public concern of constitutional dimensions, and the settlement, which does not reach the issues raised in the lawsuit, will certainly not resolve this problem.

The quality of training of court representative is a serious issue of public concern, and any efforts thwarting provision of the best possible training of those exclusive, monopolistic court representative, undermines our democracy and access to court and justice for every one of us.

Therefore, in the context of this blog article, my question is - are those "star" professors participating in the process of undermining our democracy by financially benefiting and condoning the actions of the monopolist in the training of this country's exclusive court representatives?

My personal opinion is - they are.  They are paid to promote the monopoly, and they do promote the monopoly, and the monopoly of BarBri hurts every one of us.

As I said above, I will provide more information about the professors teaching for BarBri, their potential conflicts of interests and some analysis of the above statistics, a little later.

Stay tuned.

When a judge decides his own motion to recuse, a party's shooting heroin with the judge's brother is not a basis for recusal

Here is federal Judge John Adams.

In February of 2015, the mayor of the City of Akron, Ohio, accused the judge in an open interview to the press, of displaying his long-standing bias against the city during a trial - and thus affecting the jury:

"Attorneys described your demeanor as “searing judicial temperament against the City.” You continuously used inflections in your voice and negative facial expressions to portray to the jury your obvious disdain for the City as we defended against the Plaintiffs’ unwarranted claims."

Then, in November of 2015, Judge Adams refused to recuse from yet another case where he was supposed to:  a criminal case where the criminal defendant told the judge that he must testify at a criminal theft case involving his girlfriend and the judge's own nephew, and that the criminal defendant in question was using heroin with the judge's brother, sometimes in the presence of his minor son, the judge's nephew, for the period of 14 months.

Here is the judge's order refusing recusal.

Here is the defendant's writ of mandamus.

After the writ of mandamus was filed, Judge Adams agreed to impose a stay on the proceedings in this court until the writ was decided, but held the defendant in pre-trial detention for several months.

When the time of pre-trial detention was about the same as the time that the defendant would have served if convicted by the guidelines, the defense counsel asked Judge Adams to turn the case over for a bond hearing.

Judge Adams immediately retaliated by removing the stay from the proceedings and scheduling a trial, over objection of defense counsel, and while the petition for mandamus was pending.

The defense counsel was forced to file with the U.S. Court of Appeals for the 6th Circuit a motion to speed up resolution of the writ of mandamus and to force Judge Adams' recusal.

The motion was filed on May 3, 2016.

It was nearly instantly decided and granted by the 6th Circuit.

The 6th Circuit removed Judge Adams from the case on May 9, 2016.

But, the damage was already done.

The defendant already spent time in pre-trial detention - which may not have happened had another judge presided over the case.

The defendant had to go through the stress and uncertainty of the writ of mandamus and expecting to be tried by an obviously biased judge with a personal, familial, interest in the outcome of the case.

The judge's claims that he did not see his nephew for a long time and that he was "estranged" from his brother really do not mean much when there is a mandate to recuse where close relatives of a judge are involved.

But, the case clearly shows how far the grounds for the so-called "duty to sit" and to "prevent judge-shopping" for parties can be stretched.

Judge Adams assumed the position of the "reasonable objective observer" and observed himself, as having no appearance of impropriety in presiding over the case of defendant who was using drugs with the judge's brother in the presence of the judge's nephew and who was supposed to testify, possibly against the judge's nephew, in an unrelated criminal trial.

And, of course, there will be no discipline upon the judge other than removal from the case.

And that is the whole problem - the judge will not learn his lesson and he will continue to do the same thing, and more, and worse.

The judge is young (for a U.S. judge - they "serve" well into the 90s), born in 1955, so he is "just" 61 now.

I am afraid this is not the last we have heard about this judge's misconduct.

I will follow this judge's future conduct and report it on the blog.

Stay tuned.

Time for robot judges?

According to New York Judiciary Law 90(2)(b), this conduct is prohibited to suspended or disbarred attorneys:

"The giving to another of an opinion as to the law or its application, or of any advice in relation thereto." So, the above behavior, in the eyes of the law, is unauthorized practice of law. Let's consider if a person does something like this:

• understand your questions, 

• respond with a hypothesis backed by references and citation.

In other words, a person asks a question about the law or its application, and the other person understands the question and answers it, with a "hypothesis" (possible solution) supported by research as to how to apply it based on existing law, with references and applications.

So, it is the practice of law, right?

What if the answering person is a robot?

And that robot does the very same thing as I described above?

And, if the valuable "judgment of a lawyer" can be assigned to a machine, what is the whole big thing about licensing?

If people can just ask a machine that is crammed with artificial intelligence to search the world-wide-web and come up with references of the law in a certain jurisdiction and solutions of any legal question.

And why do we need human judges then, with their inflated and ever growing salaries, benefits, entitlements and an entourage of families and friends who they serve - if machines can be better, quicker, fairer, cannot lose temper with you and cannot be corrupted?

For example, robot Ross, if put on the bench, will certainly not seek to spank young male nude criminal defendants and take their nude pictures for later enjoyment.

Or be biased.

Or be sexist, racist, or engage in any other kind of discrimination.

It will be programmed to apply "equality under the law" literally - without regard to status, rank, connection or wealth.

Right?

And, there will be no civil rights violations if Robot Judge Ross (or his clone) would apply the law as it is written, not bend it to the whims of those who greased his iron hand better.

What a wonderful world that would be...

The Delaware County, NY - the land of Jokers. The Tiska joke

Delaware County, New York, is the land of - well, jokers.

How else can one perceive what is going on in the case of People v Theodore Tiska?

Tiska is the former Sheriff's Deputy in Delaware County currently charged with attempted murder in Delaware County and prosecuted by people who knew him and, possibly, who have grudges against him.

Surely, as a matter of fairness, he should be investigated and held in jail not by his former employer.

Tiska's salary stops, as shown on seethroughny.net, stops in 2012, when he retired or resigned from Delaware County.

Tiska retired from Delaware County Sheriff's Department on August 17, 2012:

After Tiska retired - or forced to retire - things started to happen to him.

He was convicted for "criminal mischief" in 2014.

Now he is charged with attempted murder and is "about to lose his home".

And, the joker County has now placed Tiska into the jail where he previously worked - the County does realize it is a safety concern for Tiska and a lawsuit concern for the County taxpayers, but, the County decided they will "save money" that way.

While funneling money into different pet projects of local county officials - like Delaware Opportunities, Inc. or the recently ditched DS&S (ditched only because the patron county official former Social Services Commission William Moon was booted).

And the biggest joke is the "process" in the criminal proceedings.

John Hubbard, who knows Tiska personally, prosecutes him.

Judge Northrup, John Hubbard's former boss who never disclosed when he was himself the District Attorney that his Chief ADA John Hubbard was a law partner of Judge Northrup's predecessor County Judge Becker, and who also knows Tiska personally, presides.

And assigned attorney Andrew Puritz - who immediately signed a consent (waiver of 5th Amendment right to remain silent, yes, they say they won't use it in a trial if the plea negotiations fall through, but who is going to believe them?) for a pre-plea investigation - in an attempted murder case!

Investigation to be conducted by Tiska's prior (possibly, disgruntled) employer.

As I said, jokers abound in Delaware County.

DS&S elimination in Delaware County

No, don't hope that it is a DSS elimination - not yet.

Delaware County (NY) DSS Commissioner proudly announced recently the DS&S elimination - elimination of services of a tumor proprietary company of the former Commissioner, William Moon, that was "contracted" by DSS at the tune of nearly $200,000 a year to do clerical stuff and cleaning, while the same duties were available through employees in direct employment of the County.

The article does not raise the question that what Moon was doing was abuse of his office, personal enrichment, and was criminal.

I wonder what the feds will say about that.

It is also interesting that these issues about "DS&S" arise only after Moon was booted - and Spinney, and Becker, the entire trio.

And, since such issues arise only after a high-ranking public official is booted, the question arises - what other "DS&S"es are lurking out there sucking taxpayer money in a poor county?

Uncontrolled judicial misconduct: Judge Real, on the footsteps of Judges Free and Best

I wrote on this blog earlier about misconduct of judges Free and Best.  

Now comes another judge with a telling name involved in gross, systematic misconduct for decades - Judge Real.  Judge Manuel T. Real of the U.S. District Court for the District of California, to be exact.  Date of birth January 27, 1924.  Yes, Judge Real is 92 years of age.

What Judge Real was doing during his judicial career was absolutely unreal, what is also unreal is the fact that he is still allowed to be on the bench, and not behind bars.

In August of 2016, there was a blog indicating that Judge Manuel T. Real of the U.S. District Court for the Central District of California, at the age of 92, is "still abusing his power" - listing such "achievements" by the judge as:

1) interfering with defense's cross-examination in a criminal case, for which he was reversed, and conviction vacated;
2) being removed from cases by the appellate court at least 11 times for lack of objectivity - and that is, as of 2009, he was removed from a case at least one other time, yesterday;
3) having a reversal rate of 10 times "the average" for a federal judge, having been reversed completely 87 times plus 47 partial reversals - as of August 2016, and plus at least one more reversal yesterday;
4) having gone through an impeachment inquiry in the U.S. Conduct in 2006 for misconduct.

In 2015, according to calculations of Reuters reporter Alison Frankel, the then-91-year-old Judge Real was reversed 12 times out of 32 appeals, a rate of reversal of 37.5%, more than 1/3.

Since many cases do not get appealed for various reasons, not the least one of them being lack of funds for a filing fee and/or lawyer, nobody knows how many more cases Judge Real botched up that never came before the appellate court.

The question asked by a defense attorney Victor Sherman who was reportedly hounded by Judge Real for 40 years was whether it was in public interest "for Judge Real to preside over cases only to be reversed so often on appeal" and that it is a waste of public money.

Yet, justice, or lack thereof, does not measure in money only, and this is a judge presiding in a court handling death penalty cases, as well as civil rights cases.

To allow a judge on the bench who lacks competence, integrity and elementary civility because he is unreachable by discipline through immunity, because the Judicial Disability Act does not apply to misconduct during court proceedings, and because the U.S. Congress finally decided that all of the above did not rise to misconduct of "constitutional proportions" is despicable.

Now, Judge Real was removed from yet another case, the one he was stalling, to the detriment of plaintiffs, for 8 years.

Unreal.