The headlines and tweets in recent days about the media’s gendered coverage of female Olympians are strikingly similar to findings from a media study I conducted with Professor Hannah Brenner on the gendered coverage of female Supreme Court nominees. (Remember the headlines when Obama nominated Justices Kagan and Sotomayor? “Then Comes the Marriage Question” was one of many in this vein…)
Vox offers a critique of the Olympics coverage here: Women are crushing it at the Rio Olympics, but the media keeps focusing on their husbands. For a summary of our media study on Supreme Court nominees, click through the slides below and read our article.
Cross-posted at the Legal Ethics Forum blog
Source: Judicial supremacy and professional responsibility // Wasserman // Prawfs Blawg
|James Obergefell and Chris Geidner
Former Scalia clerk and Catholic conservative Kevin Walsh at University of Richmond has acted to support his former mentor by explaining that there is no defiance of law in comparing Obergefell to Dred Scott v. Sanford, that the judiciary is supreme only in its own “department”, leaving other departments of government free to pursue their own visions of the Constitution. Judicial supremacy – the product of Marbury v. Madison as now understood – has long invited celebration and vilification, depending usually on whose oxen have been gored.
Prof. Howard Wasserman who is not in the same ideological camp has embraced the “departmentalism” notion. In my view signing on to Walsh’s label is hazardous. Of course every branch of the government participates in the development of thinking within or about the framework of the constitution. But in practice the current slogan as inspired by George – who denounces Obergefell as illegitimate as was Dred Scott – is a dangerous development.
Those like Chief Justice John Roberts who in dissent denounced Obergefell (“By deciding this question under the Constitution, the Court removes it from the realm of democratic decision”) are playing a risky game. The majority decision giving the 2000 presidential election to George W. Bush is subject to the same attack as Roberts makes now. Judicial humility did not prevent Roberts from striking Section 5 of the Voting Rights Act; nor from striking the voluntary racial integration plans of the Seattle public schools. Such decisions cannot be resolved by neutral principles. They require prudential judgments; judiciousness rather than “constitutional resistance” is the better watchword.
In Texas an ethics complaint has been filed against the Attorney General. The tactical wisdom of that is dubious. We can see a judicious approach in the recent order of federal Judge David Bunning in Kentucky. He has declared himself satisfied that his order to provide marriage licenses to all qualified applicants has been met by the office of the county clerk. He did not require that Kim Davis’s or even the county’s name be on it. Davis substituted “issued by federal court order” for the name of the county. Bunning, finding that the validity of the licenses is not in doubt, chose deference rather than further confrontation. Substance over form. Discretion can be valor. – gwc
PrawfsBlawg: Judicial supremacy and professional responsibility
by Howard Wasserman
The ethics complaint filed against Texas Attorney General Ken Paxton last summer will proceed to a State Bar investigation. (H/T: Josh Blackman) The complaint stems from a letter Paxton sent to county clerks in the wake of Obergefell, suggesting clerks and justices of the peace may have a religious exemption from issuing licenses or performing marriages to same-sex couples and that they may be able to assert those requests for exemption.
One of the challenges to the model of departmentalism I have been advocating (what Richmond’s Kevin Walsh calls “judicial departmentalism”) is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere. The explicit problem, according to the complaint, is that Paxton ignored Obergefell and the (supposed) supremacy of SCOTUS’s interpretation of the Constitution; his legal advice thereby ran afoul of several rules of professional responsibility. In fact, Paxton expressly acknowledged that any clerk or JOP who did this would almost certainly be sued, held liable in light of SCOTUS (and 5th Circuit) precedent, and subject to an injunction that would bind them. He simply recognized the need for that additional step. But that is not good enough; because it is “emphatically the province and duty,” etc., an attorney, even one for the State, cannot give advice contradicting such judicial declarations. If this is what the regulations mean, they leave no room for departmentalism or for independent constitutional judgment in non-judicial actors; they instantiate judicial supremacy as the sole understanding for all attorneys, public or private.
On one hand, that could be permissible and appropriate. If a state legislature wants to establish judicial supremacy as the guiding principle for its attorneys, (so that, for example, the obligation to not advise a client to disobey a legal obligation includes obligations established in judicial decisions to which the client is not a party), it can do so. On the other hand, the automatic acceptance or presumption of judicial supremacy into the rule, without more, seems difficult to square. And somewhat unfair to impose without further warning or clear statement.
The ABA Commission on the Future of Legal Services has issued its final Resolution & Report: Regulatory Objectives. This Resolution is scheduled for a vote at the February 2016 San Diego ABA Midyear Meeting. The draft objectives can provide the basis for a useful discussion in Chapters 2 and 9 regarding the purpose of regulation. (The ABA/BNA Lawyers’ Manual article about these regulatory objectives is available here.)
Full disclosure: I am on record as supporting regulatory objectives. As I explained in my Oct. 30, 2015 comment letter, I believe that regardless of what one thinks about recent market and regulatory developments, it is useful to have regulatory objectives:
My final comment is that it is important for the Commission and ABA members not to allow controversies about regulatory developments in the United States or elsewhere to derail the discussion about Model Regulatory Objectives. Many of the recent lawyer regulatory developments have been quite controversial. As I have noted in several articles, one way to think about both market and lawyer regulation developments is that they present issues regarding the “who-what-when-where-why-and-how” of lawyer regulation. For example, the North Carolina Dental Board case and the 2007 UK Legal Services Act raise issues about who it is that should regulate lawyers; LLLT, entity regulation, and ABS developments raise issues about what it is that should be regulated; the UK’s outcomes focused regulation raises questions about how regulation should occur. While these who-what-when-where-why-and-how issues have become intertwined in particular jurisdictions, it is important for U.S. jurisdictions to recognize that these issues are separable.
I believe that it is exceedingly important for a jurisdiction to ask itself the “why” question – why does the jurisdiction regulate lawyers and what it is trying to accomplish? I don’t think that asking the question of why a jurisdiction regulates presupposes a particular answer to one of the controversial “who-what-when-where-or-how” lawyer regulation issues. Moreover, failing to ask the “why do we regulate?” question doesn’t mean that the difficult issues are going to go away. Whether one likes it or not, there are market and regulatory developments in the United States and elsewhere that will be cited during regulatory debates. If a regulator can say what it is trying to achieve, its response to a particular issue – whatever that response is – should be more thoughtful and should have more credibility. It seems to me that this is in everyone’s interest.
No state receives higher than a ‘C’ overall on the new Report Card on Barriers to Affordable Legal Help released today by Responsive Law.
Tom Gordon, Executive Director of Responsive Law, explains more in today’s USA Today:
Imagine that at tax time you’re required to either fill out your 1040 without help or pay a CPA hundreds of dollars to do it for you. There’s no H&R Block, and while TurboTax exists, it’s under constant siege by state regulators for being an unlicensed accountant.
That’s analogous to the situation that most Americans face whenever they have a legal issue. For even simple matters, they have to either do it themselves, hire a lawyer for over $200 an hour or use software that can do the job well but which the lawyer cartel is trying to put out of business.
Responsive Law’s Report Card on Barriers to Affordable Legal Help, which will be released Thursday, grades each state on how restrictions created by lawyers make legal help expensive and inaccessible for its residents. No state received a grade above a C. The two factors most responsible for the low grades are restrictions on who can provide legal services and restrictions on the corporate structure of law firms.
For a basic will or uncontested divorce, a consumer could be well served by a competent professional other than a lawyer. However, in most states, only lawyers are allowed to provide these services. State bars have used vaguely worded restrictions on the “unauthorized practice of law” to bring legal actions against everyone from major companies like LegalZoom to small mom-and-pop operations.
The worst offender in restricting competition is Florida, which received an F in the category of Barriers to Non-Lawyer Help. The Florida Bar has a $1.97 million annual budget dedicated to enforcement of unauthorized practice restrictions that it has used to pursue charges against people like Katie Vickers, a senior citizen who helped a fellow parishioner at her church with completing workers compensation forms.
The National Organization of Bar Counsel (NOBC) is an organization “of legal professionals whose members enforce ethics rules that regulate the professional conduct of lawyers who practice law in the United States, Canada and Australia.” When she was president of the NOBC, Tracy Kepler created an International Committee, which decided to create 4 subcommittees to investigate and provide information to NOBC members about four areas of inquiry: Alternative Business Structures; Entity Regulation; Alternative Licensure ; and State and International Reciprocity
The work product from these committees has now been posted on a new NOBC “Global Resources” webpage. These new pages contain useful information. For example, the FAQ document about Entity Regulation was prepared with input from current or former US, Australian, Canadian and UK regulators, along with academics. (The Entity Regulation Committee plans to update its materials periodically.) These materials can be particularly useful when teaching Chapter 2, Chapter 3 (fee splitting) and Chapter 9.
The ABA Commission on the Future of Legal Services has circulated for discussion a draft Resolution and Report on “ABA Model Regulatory Objectives.” The draft resolution “urges each state’s highest court, and those of each territory and tribe, to be guided by the ABA Model Regulatory Objectives to help (1) assess the court’s existing regulatory framework and (2) identify and implement regulatory innovations related to legal services beyond the traditional regulation of the legal profession.” The ABA’s proposed Model Regulatory Objectives are similar, but not identical, to those included in Section 1 of the 2007 UK Legal Services Act, in Nova Scotia, and suggested by some commentators.
The ABA/BNA Lawyers’ Manual has a story about the regulatory objectives here.
The Third Circuit recently affirmed the lower court’s opinion that found Pennsylvania Rule of Admission 204 constitutional. This rule allows experienced attorneys to be admitted to the Pennsylvania bar without taking the Pennsylvania bar exam provided they are barred in a “reciprocal state,” that is, a state that similarly admits Pennsylvania attorneys by motion without requiring them to take that state’s bar exam.