Category Archives: Law

Brennan on the Freedom of Association

It cuts both ways.

“There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate.” – Justice Willian J. Brennan, Jr.

Source.

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Thomas Sowell on Judicial Restraint

The opposite of the results-oriented judge is the judge who will rule in favor of litigants that the judge may personally despise, if the law is on that side in that case. Justice Oliver Wendell Holmes, for example, voted in favor of Benjamin Gitlow in the 1925 case of Gitlow v. New York – and then said afterwards, in a letter to Harold Laski, that he had just voted for “the right of an ass to drool about proletarian dictatorship.” Likewise, Holmes dissented in  Abrams v. United States in favor of appellants whose views he characterized in his judicial opinion itself as “a creed that I believe to be the creed of ignorance and immaturity.” As he told Laski, “I loathed most of the things in favor of which I decided.” Conversely, he could rule against litigants he personally viewed favorably. In another letter to Laski, Holmes said that he hadd to “write a decision against a very thorough and really well expressed argument by two colored men – one bery black – that even in intonations was better than, I should say, the majority of white discourses that we hear.” Holmes was not taking sides or seeking “results,” but applying the law.

-From The Thomas Sowell Reader

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The Legal Industry As a Monopoly

Clifford Winston writes:

For decades the legal industry has operated as a monopoly, which has been made possible by its self-imposed rules and state licensing restrictions — namely, the requirements that lawyers must graduate from an American Bar Association-accredited law school and pass a state bar examination. The industry claims these requirements are essential quality-control measures because consumers do not have sufficient information to judge in advance whether a lawyer is competent and honest. In reality, though, occupational licensure has been costly and ineffective; it misleads consumers about the quality of licensed lawyers and the potential for non-lawyers to provide able assistance.

Is this necessary? Most licensing restrictions are self-imposed to protect those already in the industry. A case could be made for electricians as faulty electrical wiring can lead to fires, but do we need licensing for barbers and stylists, or for taxi drivers? What about lawyers?

What if the barriers to entry were simply done away with?
Legal costs would be reduced because non-lawyers, who have not had to make a costly investment in a three-year legal education, would compete with lawyers, who in many states are the only options for basic services like drafting wills. Because they will have incurred much lower costs to enter the field — like taking an online course or attending a vocational school — and can operate as solo practitioners with minimal overhead, these non-lawyers would force prices to fall. The poor would benefit from the lower prices for non-criminal matters, and poor litigants, who might be unrepresented in criminal matters like hearings because they could not afford a lawyer and because of dwindling state legal aid, would be better off.
At the same time, if corporations — and not just law firms, now structured as partnerships — could provide legal representation, their technological sophistication and economies of scale could offer much more affordable services than established law firms do. These firms, in turn, would have to reduce prices to compete.
Of course, lower legal prices would cause new law school graduates to be paid less, but more jobs would be available for such graduates because the demand for lawyers would increase. And new graduates would begin their careers with less law-school debt, because alternative providers of legal education would force law schools to reduce tuition.

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Things Did Not Go Well?

THINGS DID NOT go well the last time the U.S. Court of Appeals for the D.C. Circuit took a hard look at the District’s gun regulations. In 2007, the court struck down as unconstitutional a handgun ban and a requirement that long guns in the home be kept unloaded and secured with trigger locks at all times. A conservative majority of the Supreme Court used the case as a springboard in 2008 for a ruling that the Second Amendment recognizes an individual right to keep and bear arms.

Why the first sentence? What exactly did not go well the last time? First, second amendment rights to arms for self protection were protected, after decades of neglect by judges and lawmakers. Second, crime has fallen across the board in DC. This is due to a variety of factors about which honest people can disagree, but the decline has continued post-Heller. The predictions in 2008 by the intelligentsia were to the contrary: this would lead to doomsday. (John Lott examines the drop in crime here. More general crime data on DC is available here, although 2009 is the last year listed.) Third, the decision shows that there is still considerable room – in this case the ban on “assault weapons” and high-capacity magazines – for judges and lawmakers within the guidance of the Heller decision.

Lastly, if this was a “common sense” decision, why didn’t progressives call for this before?  In their simplistic view, gun control laws are helpful and needed because guns need to be controlled to control crime. The proof that said laws control guns is in the name itself: gun control laws. It is tautological, and often false. As a non-gun-owning resident of DC, I support crime control. That may or may not involve greater restrictions on gun ownership.

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Americans Should Love Gridlock

Justice Scalia expounded on what sets the United States apart from other countries: not the Bill of Rights, which “every banana republic has,” but the separation of powers. Americans “should learn to love the gridlock,” he said. “It’s there for a reason, so that the legislation that gets out will be good legislation.”

George Will is smiling.

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The Constitution Is Not Sacred…

if by sacred we mean that it should never be changed. Liberal commentators have made lists of changes to the Constitution that Gov. Rick Perry has proposed over the years:

He has spoken favorably about amendments to end the lifetime tenure of federal judges, to allow supermajorities of Congress to overturn Supreme Court decisions, to repeal the Sixteenth and Seventeenth Amendments (which established, respectively, the income tax and the direct election of senators), to limit federal spending, to define marriage in American law as the union of a man and a woman, and to prohibit abortion.

How are these positions – an immutable belief in the sacredness of the text and a desire to change it – compatible, they ask?
Ramesh Ponnuru answers.

Constitutionalism, in short, is simply a special case of respect for the rule of law: the case in which the law in question is the supreme law of the land. The rule of law demands that those who apply the law — be they judges, sheriffs, presidents, or governors — apply it faithfully. If those officials can change the meaning of the words, there is no point to having a written law.

Rather, officials and judges must be “willing to abide by [the Constitution and its Amendments] until subsequent amendments nullify or modify them.” Such amendments should be formal and explicit according to the procedures set forth in the Fifth Amendment. Constitutionalism does not prescribe that judges selectively interpret the Constitution to effectively amend it outside of the Fifth Amendmen procedures. Perhaps this is why progressives are generally more opposed to the idea of formal amendments. “Recall that after the ERA failed, liberals achieved almost everything they had wanted from it through the courts. There is nothing that liberal legal academics and activists refuse in principle to read into the Constitution because the ERA is absent from it.” This attitude saves them the trouble of enacting change democratically.
Ponnuru concludes,

It may be that some of these amendments are undesirable, or are not worth pursuing for some other reason. (At least four of the seven strike this conservative constitutionalist as unwise.) But they are clearly constitutionalist in spirit. All of them involve following the proper constitutional channels for constitutional change — channels that require a great deal of public deliberation and support before the change can occur.

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