4th of July Music

4th of July Music



From 1916 and 1917.

The Big Picture: The River

Lex Anteinternet: Legislating from the bench again.

Lex Anteinternet: : SPQR Senātus Populus que Rōmānus Translated, the Senate and People of Rome.  The motto of the Roman Empire, w hose legions marched un...

Following on Obegefell, the Supreme Court, again by a 5 to 4 vote, acted again clearly outside the Constitution in Arizona State Legislature v. Arizona Independent Redistricting Commission.

This case surrounds an Arizona referendum in which Arizona's voters determined to create a non partisan commission for election districting.  Frankly, I think that was a very good move, as election redistricting in many states has achieved absurd anti democratic results. But the Constitution is quite clear, this is undoubtedly something only Congress can do.

Not to worry, said the five.  Where the Constitution says "legislature", it doesn't mean it, but any process by the states.

That's baloney.

As opposed to Obegefell, at least this baloney is sliced in favor of democracy, where the Court chooses to allow us to have it. But it's baloney nonetheless.

Sparring Jurist: The Federal bench blogs it out.

For those who wonder if a lawyer should be writing a blog (blawg?) let me note that several Federal judges do and others write op-eds.

That's right, the appointed for life members of the quasi ruling class, post Obegefell, blog and write, which is a comforting thing in some ways, and certainly interesting.  And they're duking it out with each other in print in some circumstances.

First we have Judge Posner, one of the most quoted, stuck on the bench never going to the Supreme Court jurists of all time, who wrote an oped in Slate in which he accused Roberts, in his dissent, of being bigoted and heartless.  In fairness, Posner is frequently cited as a great jurist for some reason (I'm not entirely sure why, but he is).  Posner was for years considered a potential Supreme Court nominee, but he's never been nominated, and at this point, he's not going to be.  He occupies a position as an appellate judge on the 7th Circuit Court of Appeals, at age 76 (yes, once again, a geriatric Federal judge).  Posner got owly about Justice Scalia's dissent in Obegefall.  Posner, falling into The White Man's Burden logic, got upset about Justice Robert's citation to ancient peoples as having the same concept of marriage as we did, up until last week.  In so doing, Judge Posner stated:

We’re pretty sure we’re not any of the above. And most of us are not convinced that what’s good enough for the Bushmen, the Carthaginians, and the Aztecs should be good enough for us. Ah, the millennia! Ah, the wisdom of ages! How arrogant it would be to think we knew more than the Aztecs—we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at.

Posner was, in my mind, being petty and misleading in this comment, and apparently I'm not the only one who thought that regarding his article.   U.S. District Judge Richard Kopf of the 5th Circuit, who blogs, who admits unabashed admiration for Posner, commented on his blog:

No heartlessness. No bigotry. Instead, as Barrett stresses, “Roberts was notably gracious toward the gay couples who challenged state same-sex marriage bans.”

Posner’s assertion that Chief Robert’s dissent reflects a cold heart plus bigotry is a vicious lie–and Posner knows it. Why he lied in the Slate article is a mystery.

Judge Kopf also had interesting words for the Justice Sutton, of the 6th Circuit, however, as he noted:

I continue to be enraged by Judge Sutton’s decision. He unnecessarily forced the Supreme Court to take this case. In doing so, Sutton harmed the Court as an institution. He should have cared more about the legitimacy of the Supreme Court than he cared about his idiosyncratic beliefs that were shared by no one else in the other Circuits.

I disagree with Kopf in Sutton's views being idiosyncratic, and actually Sutton wasn't alone in his views in judicial opinions   But Kopf here has noted what I did, that the Supreme Court was harmed by this decision. And that harm, in my view, extends not only to the Supreme Court, but the entire country.

It's always assumed that Supreme Court decisions have a certain fini quality to them. That isn't always true.  It's already proving not to be true in this instance, with Federal judges now making comments about one another in print, and even one Supreme Court justice mentioning this case a second time in a second oral dissent following this case.  In the end, we're going to get less of a court, or more of one, and it will be the fault of this decision.  This court should have re-read John Marshall.

Monday at the Bar: Courthouses of the West: Wyoming Supreme Court

Wyoming Supreme Court

The Greek Secret Weapon?

In the lead up on the Greek referendum on the Greek debt, I saw this fairly amazing headline:

Greek villagers’ secret weapon: Grow your own food 

Wow, I thought, what will the Greeks think of next.  One of the oldest farming cultures in the Mediterranean and they can grow their own food.

Okay, that was snarky, and unfair too. The headline writers for stuff usually are the same people as the authors, and the article didn't really mean to suggest that gardening was a Greek secret.

Still, it's surprising that this would have been regarded as really sort of amazing, and perhaps it tells us something about the extent to which Greece, traditionally an agrarian society, still is.  One Greek interviewed stated:

“I have my lettuce, my onions, I have my hens, my birds, I will manage,” he said, even though he can no longer access his full pension payment because of government controls imposed six days ago. “We will manage for a period of time, I don’t know, two months, maybe three months, because I also want to give to our relatives. If they are suffering, I cannot leave them like this, isn’t that so?”

Most Americans couldn't do that.  It's interesting that fair number of Greeks, apparently, can.

Read more here: http://www.miamiherald.com/news/nation-world/world/article26291980.html#storylink=cpy

Sunday Morning Scene: Churches of the West: Salvation Army Church, Salt Lake City Utah

Churches of the West: Salvation Army Church, Salt Lake City Utah:

This poor photograph was taken from a moving car. It depicts the Salvation Army Church in Salt Lake City Utah. I believe this to be the only classically styled church belonging to the Salvation Army that I have ever seen.

Why Americans, irrespective of position, ought to cringe over Obergefell

SPQR
Senātus Populus que Rōmānus

Translated, the Senate and People of Rome. 

The motto of the Roman Empire, whose legions marched under that banner in service of its Emperors.

___________________________________________________________________________________ 

This isn't a post about same gender marriage.

If a person wants to debate that, go elsewhere, as this isn't that post.

This is a post about a court usurping legislative power.

As anyone following the news well knows, in a five to four decision, the United States Supreme Court decided in Obergefell v. Hodges that the United States Constitution, which doesn't include the word "marriage" anywhere within it, and which was written at a time when same gender attraction was uniformly regarded as a horrible personal vice (but before the word "homosexual" was coined*), guarantees the rights of people with that inclination to contract a marriage to a person of the same gender.   The decision, which everyone knows is not really based on a true reading of the Constitution but on a liberal interpretation of what ought to be done, is being widely celebrated by those who have been backing this fairly radical social experiment.  In some ways the most telling comment in the case was the following:

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

That's innocuous language presents a stunning proposition.  Rights come not from history and tradition, and the court doesn't even mention the Natural Law, which is where the drafters of all of our original organic documents understood them to come from.  No, they "rise" from "a better informed understanding of how constitutional imperatives define a liberty. . . "  And who has that "better informed understanding"?  Not the national or state legislatures, apparently, which we understood to be able to legally create rights and privileges.  No, nine, or in this case five, mostly very old people who have very little connection with the average lives of Americans, who are of very concentrated principally Ivy League education, and of very limited professional experience, whose rights they purport to be creating, or which they may be destroying.  Or, as Chief Justice John Roberts noted:

Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.

Or as the much castigated Justice Scalia stated, in keeping with the anniversary we note here today:

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Those to whom this new right is conferred, perhaps most of all, ought to pause to consider what has occurred. 

Indeed, it ought to frighten every American.  There ought not to be a parade by any group of people on the street, there ought to be some really sober reflection on what's occurred, as its really scary.  As Justice Alito noted:

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate

A common claim is that this now makes same gender marriage "the law of the land".  And so it does.  But the next common claim, that this has been decided "forever" (even excusing the human folly to believe that the trends of their own era or even the governments and nations of the era in which they live are somehow permanent), is far from true.  Many Supreme Court pronouncements barely outlive the justices who wrote them, and if history in this country has shown us anything, there isn't a single Constitutional "right" of any kind that isn't subject to being rewritten, reduced, and eliminated.

And this has proven to be most particularly the case concerning social decisions, which are so thinly based on the law in the first place.  Indeed, Justice Roberts cited a blistering legal analysis of the folly of Wade doing that, by none other than Ruther Bader Ginsberg, in his dissent.

It's easy to see why.  Nobody likes to have the vote taken from them.  When the vote is taken in a coup, the losing side sits and stews until it has the chance to vote again, and that chance usually comes.

The case that this is most analogous to is of course the legendary Wade decision which, at the time, overrode the law of many states and advanced a controversial view that had gained traction in some states concerning the point at which life began vs the rights of an individual.  The case concerned a massive metaphysical and philosophical question of the type that no court can really handle, and the Court handled it really badly.  The case did indeed seem to have worked a permanent change for about the first ten years, or maybe even twenty, of its existence, but after that, the weak logic of the case began to erode on its own accord.  The only thing that keeps the decision in place at all is the basic fact that everyone feels the current five to four split on the Court, in which Anthony Kennedy is the repeated tie breaker, probably operates so that if the matter returned to the court, some preservation of its holding would remain, but not all of it. The whole case might, in fact, fall, and legislatures now have little trepidation about passing laws in this area which twenty years ago they would have feared to.  Even liberal publications, such as The New Republic, have urged its complete repeal, recognizing that the main function of the decision has been to make their view appear to be anemic and anti-democratic, while the opposition has effectively organized and has taken it on. What political liberals of the era deemed in impossible has become a reality, the decision holds by a thread, most people don't like the impact, and in the society, the opposing view has become the majority one.

My prediction, which I know is contrary to the current belief, is that the same will effectively happen here.  The Obergefell case is really part of a long standing trend in American law which has weakened the institution of marriage and what being married means.  Without going into it in depth, the first blows were really struck when no fault divorce laws became common in the United States, making obtaining a divorce much easier but also making it much easier for people to escape responsibility for everything in this arena.. The second came when social programs had the unintended effect of allowing men to easily escape the burdens of caring for children they hadn't planned for.  Combined, the institution of marriage has been eroding for some time.  This most recent development really reflects that, as it reflects a current faddish view of marriage that it exist in order to bring fulfillment or happiness, or has something to do with love.  All of that might reflect the conditions that marriage may bring (or might not), but it doesn't go to the reason for the institution, which exists in order to promote the relationship between couples that are engaged in activities that naturally lead to children.  That's in the interest of the state, the rest of it really isn't.  That fact has indeed begun to come back into focus in recent years, but like the back side of a wave, it hasn't risen to the crest yet.  The crest of the wave is still at the happiness and fulfillment peak, although certainly not exclusively so.

Where this all leads isn't really yet known, and whether a person likes the reality of the history of marriage or not, or feels it should be something else or not. as a legal matter, the facts are what they are.  Now five of the justices of the U.S. Supreme Court have terminated the debate, they think, and chosen to force a social view on a nation that was debating it.  If the current trend had held, ironically, the view now forced on the nation by judicial fiat would have become the dominant law anyhow, by legislative process.  Now, however, the court had killed the legislative process and taken the matter out of the hands of legislators and voters.  Why they did this, when they clearly did not have to, is a question that has to be asked.

That's happened, of course, before, but when it does, the trend is uniformly bad for the nation. Those who are deprived of the vote feel, justifiably, cheated, and they don't accept the view that the "majority" wants this.  They struggle against it.  And in that process, those who have achieved victory by judicial fiat at first loudly proclaim their victory, and then loudly complaint about those who will not accept it.  If the prior examples are applicable, they then begin to lose ground, although its usually a slow process.

I'm not sure that the process will be that slow here.  The Obergefell decision comes as close to a judicial coup in the United States as we've ever seen.  We've never had an instance in this country before in which the Court has actually ruled on a definition of an institution that most humans participate in, which is so fundamental to us, and which grossly predates the existence of our own country. That they'd do so is stunningly arrogant, even if you view that the achieved result is the one that should have happened legislatively.

___________________________________________________________________________________

Liberty, Equality, Fraternity 

The battle cry of the French revolution, and the ideals under which Imperial France under a military dictator marched under the revolutionary Tri Color on Europe. 

___________________________________________________________________________________

The common wisdom right now is that the public will now accept this, where it hadn't.  I doubt it will, and already those who appeared defeated are beginning to resist and rally, with proposals that will have to be taken seriously in short order.  A real reaction is likely to be a massive level of contempt for a Court which was already not particularly well liked by much of the nation, and which now shows itself capable of acting in a Napoleonic fashion.  Like the little emperor, who marched on Europe in the name of liberal ideals, liberty, quality and fraternity, five robed emperors, likewise sitting for life, have decreed that legislatures don't matter in something in which they very much do. And, just like the little emperor, these emperors amazingly do so in interrupting what was seemingly a trend in the same direction they went anyhow.  They clearly need not have done it under the law, and even if they felt their decision to be a socially correct one, they could have waited for it to unfold.  A person doesn't need to be hasty in overturning a norm that's as old as human history.

Unless, of course, you are at death's door yourself and feel that the world cannot progress without you.  Does the Court feel that way?  I hope not, but at least Ruth Bader Ginsberg has made a statement reminiscent of  Charles D'Gaulle to the effect that if she was to step down, who would replace her. Well, that likely wouldn't be a problem. And frankly, if she's to keep the balance of the body as it is, she probably should have done that earlier in President Obama's administration when a liberal replacement was assured.  Now that would be pretty questionable.

Indeed, one thing we know for certain about the current Supreme Court is that the current nine members cannot possibly all live through the next Presidential term.  Death will claim at least one of them, if not more (and it will probably be more).  Four of the justices are over 70 years old, with Ginsberg being 82.  Only one is under 60.  Three out of the four justices over 70 voted in the majority which effectively means that the oldest section of the court, and the section most likely to be removed by death or illness, is the majority (but the youngest justice also voted with the majority, it should be noted).  Three out of the four in the minority voted against it, with the second to youngest on the court included in that group.  Should all nine live through the next Presidential term, particularly a two term Presidency, would be a stunning run contrary to the law of averages.  It'd be more likely that one or two of them will pass on to eternity during that time, and indeed given the really geriatric nature of this court, we could see a huge turnover in the next eight years fairly easily.  Only one of them is really in the demographic group where we're truly surprised if they pass.

So, what's that mean?  Well, just as the court's decision in District of Columbia v. Heller, decided in 2008, has spawned repeated court cases as to its meaning every since, with no end in sight, in spite of its seemingly clear text, this decision will inevitably do so as well.  When some county clerk refuses to issue a marriage license on moral belief grounds, and gets sued, will that clerk be able to argue freedom on conscience?   We're going to find out in the courts. When a judge refuses to preform a marriage and gets sued, will he be able to claim the same?  We're going to find out.  When a case presently on hold in Utah on polygamous marriage goes to decision in the next year (and it will now), and others like it follow, will that be governed by this decision (I can't see how it could not be).  When an immigrant migrant from North Africa claims a cultural right to marry a 14 year old, or perhaps two, or brings in a child bride,will that be protected if state law has prohibited it, but the culture he's part of consents? We're going to find that out too.  And if it is the case that a man married to a child bride in Afghanistan can import his 14 year old bride, does that mean an American man can demand the same "right".  Well, a reasonable holding of this decision would be yes, and at some point I suppose well find out if it does.

And, as always, what will happen, at a bare minimum, is the Court wills slowly start with the "the decision didn't mean that", with a series of specious distinctions.  They'll look bogus, because they will be.  In the meantime, the debate will evolve with "we told you so, we told you so", and there will be no good counter to it.  The Court, in turn, will look absurd, and once that's the case (and we've been through some bouts of that since the early 1970s), nobody respects what it has to say save for the fact that the Executive branch can back the opinions up with action, if they feel inclined to.  

But, and perhaps quite likely, if  the next President is a conservative, and Ruth Bader Ginsburg passes, or Kennedy, the next Supreme Court justice is unlikely to really believe that Obergefell means anything and either repeal it or define it out of existence.  People will say, "oh no, they won't reverse themselves". Read the descents, they most certainly would.  Justice Scalia, who is another octogenarian on the court it should be noted, so disdains the majority opinion that he's noted it again in a dissent for another case, an extraordinary thing to do.  And justice Robert's dissent flatly stated that, in regards to the decision, "The Constitution had nothing to do with it."  So this could be returned to the legislatures, after having been taken away from them, quite easily.  My guess is that some state legislatures in some places will start reacting nearly immediately in any event, which makes such a reversal all the more likely. Indeed, the Attorney General's Office of Texas has already indicated moral support for at least clerks and judges who refuse to go along.

And it should be returned to the legislatures, frankly, to preserve the Court.  The point of a democracy is to be democratic.  A person who doesn't like the results of a vote doesn't have to like it, but at least that person can argue for another day. The point of the Court here is to keep legislatures from acting unconstitutionally without restraint (like an Athenian democracy) but not to legislate itself, as its effectively done here. The victim of a coup, moreover, stews in bitterness until their day comes.  And that day always does, sooner or later.  And when that counter reaction comes, the oppressing institution gets slapped.

When that comes, those who leaped on to a bandwagon that preempted a democratic development rarely fair well in preserving their argument.  In pre World War Two France, for example conservative right wing political movements were taken serious and participated democratically.  When Germany supplanted their government with one more of its liking, they were quick to sign on.  It wasn't that the French right was uniformly fascist, or even uniformly wrong, but having allied themselves with that which seemed give them a quick result, the result of World War Two has been something they have not been able to overcome.  "Pro choice" elements in the US were so over comforted by their Supreme Court victory in 1973 that they've never been able to learn how to act really democratically once the debate resumed. Here, a movement that was doing well in the polls will now be associated with a the actions of a geriatric Supreme Court.

Already in this area there's been a proposal that Supreme Court justices should be made to stand for retention.  Maybe they really ought to, or be subject to some sort of oversight short of impeachment.  Other concepts that are not far from the surface would be to impose a mandatory retirement age on the Federal bench, which frankly I'd be in favor of, as I can't grasp why nine people from some generation that the majority of Americans are not, should hold such power.  Justices could be selected by some other process as well, and I wonder if that will come about.  There's no reason that they couldn't be rotated out of the Circuit Courts on an annual basis, thereby eliminating the need for a standing Supreme Court at all.  Or the process could require input from the states.  Or, frighteningly, Congress could act simply to deprive the Supreme Court of appellate review of the laws which it passes or even specific laws, or just things it doesn't want the Supreme Court to review, as, while little realized, this is within the power of Congress.

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Quite clearly, while this Court would be likely to attempt to attack it and say it isn't so, Congress could in fact pass laws and provide that the Supreme Court had no appellate review.  If the Court determined that it did, and it would be likely to hold that it did, then what? The only reason that this hasn't happened to date in our country's history, is that Congress has tended to respect the court, and the court's been careful not to provoke Congress. They've done that now.

None of this appears likely right now, but any time the Court makes a decision like this, they start to be in varying degrees.  Indeed, this opinion aside, it ought to be apparent that a Federal judiciary made up of life time appointments is more than a little bizarre.The thought that lawyers who formed their views decades ago and who are in the age in which mental deterioration is the norm should have absolute power over the affairs of the nation makes no sense whatsoever.

In the meantime, Americans in general ought to be worried.  Our politics have descended over the past twenty years to where our legislatures, including the national one, are not functioning as well as they should be.  The Democratic and Republican parties are increasingly at odds with each other, and increasingly more extreme (although here, as with some other social issues, they tended to be heading towards each other). The Supreme Court has now issued a decision that strays badly from the law, as the law would have been understood in any former area, and now sets itself up as an un-appealable legislature of social change.  That's outright scary.

And because it's scary, this is appearing on the July 4 weekend.  On that date, the Continental Congress, in rebellion against the Crown, declared the nation to be independent basically because the English Parliament had seemed to usurp the power of the sovereign colonies by taking acts without consulting the assemblies of those colonies.  The "intolerable acts" were varied, but that was the gist of it.  Quite frankly, if you look back and read them, a lot of the things they were doing that seemed intolerable were not all that bad, including taxing the colonies to help pay for a war in which the Crown defended them.  But the not consulting part was pretty bad.  Now, nine, or rather five, lawyers in a body that has been appointed for life has essentially done the same thing.  When Chief Justice John Marshall crafted the early court to have judicial review of acts of Congress, he was careful not to anger it, as he knew that was dicey.  These justices have perhaps assumed too much if they've assumed that they can now act so far that Marshall would be horrified, and I'd be surprised if, long term, this decision doesn't either mark the beginning of a Cesarian court and a retreat of American democracy, or the point at which the roles of the Court began to massively erode in favor of a more Athenian democracy.

Either result is really scary.

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Equal Justice Under Law

The motto of the United States Supreme Court.  

Interestingly, on the "Temple" of Justice, where the United States Supreme Court sits, these words appear immediately above a statute. . . of a Roman Centurion.

  

Sportsman criticizes, challenges contribution

Sportsman criticizes, challenges contribution

Now, this is interesting.

The opposition to the concept that the Federal government ought to transfer the public lands to the states is really gaining opposition, as well it should.  And, I should note, not only in the West, it's gaining attention in the east as well.

Anyhow, recently the Natrona County Commissioners gave $1,000 of tax money (they have no other kind) to the American Lands Council, a Utah based group backing this concept. That squarely places the Commission behind this ill begotten idea, and with public money too.  A local sportsmen was reported taking them to task, and apparently effectively, on that.

One thing to note here is that the Wyoming Constitution expressly disavows any claims to Federal land, and its an open question if Wyoming could really accept any legally, should the offer be forthcoming.  Forever disavowing, as we purported to do, is forever disavowing.  In keeping with that, and in recognition of the growing opposition, the Legislature, which was looking at funding a bill to study taking the land instead changed it into one to study simply managing it. Even that has been sufficiently poorly thought of that at least one of the legislators backing that idea, from my district, didn't note it in his recent mail to his constituents. We will remember it, however, as I'm sure he's probably reluctantly aware.

Several months ago this same body was presented by a resolution, by one of the members who voted to spend the $1,000 in this fashion, seeking to instruct the County Clerk not to issue same gender marriage licenses to applicants after the Federal Court here found Wyoming's statute defining marriage the way its been defined forever unconstitutional.  This post doesn't seek to discuss that topic in any fashion, I'm merely noting it (a post discussing the United States Supreme Court's action will appear here tomorrow, about this time).  That measure failed as the other commissioners noted that they couldn't instruct the Clerk to act against the Federal law.

So why can the commission spend money to study something that may run contrary to the Wyoming Constitution?

Dressed for Battle

Dressed for Battle

Mid Week At Work: Adult Education.

Casper, Wyoming 1940 (Silent film)

Casper Wyoming in the 30's

Holscher's Hub: Boyce MotoMeter

Holscher's Hub: Boyce MotoMeter

Holscher's Hub: Images of flight

Holscher's Hub: Images of flight: Model A radiator cap.

The old and the new. A passenger jet passes in front of a Ford Trimotor

Thanks, but no thanks, and oh, why even bother. Wyoming rolls over on the UBE.

Two years I wrote this item about the unfortunate move by the Wyoming State Bar adopting the Uniform Bar Exam:

Lex Anteinternet: Wyoming Adopts the Uniform Bar Exam, and why that'...:     Wyoming Supreme Court in  Cheyenne. Students of legal minutia know that the phrase "to pass the bar", or "to be ca...

I made some predictions at that time, including that the net effect of the UBE would be to increasingly pass off Wyoming's legal work to lawyers in big cities in neighboring states, and that has become true.  Now both defense and plaintiff's work, in the civil arena, has become something in which out of state firms are increasingly involved in.  So litigants who have cases in Wyoming are increasingly, in some instances, using non Wyoming lawyers, and in some instances defendants are being defended by non Wyoming lawyers.  It isn't that these attorneys are better than Wyoming's lawyers.  They aren't.  It's that they are from large cities in some instances.  In my view, Wyoming is being hurt by this as lawyers who know Wyoming's law and live in the state aren't handling as much of this work as they should.

When the UBE was adopted by the Wyoming Supreme Court, a Wyoming component was added in the form of a CLE that new admittees had to take. The concept was that, in the course of a day, they'd be exposed to Wyoming's law. That was always a fairly absurd concept, as it takes years to pick up the nuances of Wyoming's law, and no CLE with topics ripping by in fifteen minute increments is going to do that.

In saying that, I should note that I was part of the process.  While I'm opposed to the UBE and particularly opposed to the reciprocity aspects of it, my very opposition to it ended up causing me to be asked to write for one of the CLE topics.  I agreed to do it, after being approached, as I felt I had little choice.  Having been asked to do it, I could hardly decline, particularly as those who asked me were well aware of my opposition to the entire process.

Due to that, in the most recent issue of the state bar's publication I see that I, along with the other authors of written material for the UBE, have been thanked.  The reason is that the Bar Examiners have now concluded that the CLE requirement isn't worthwhile, so we're just going to admit new members without a state component, other than an expanded introductory pathways requirement.  Those who wasted their time on the written CLE requirement programs, such as myself, have had the futility of their efforts publicly applauded.

Well. . ., thanks but no thanks.  The entire Uniform Bar Exam process is misbegotten and ought to be dumped, and it was always a poorly through.   All this is serving to do is to export Wyoming's legal work to the detriment of Wyomingites.  It's not too late to salvage the situation, but it will become so as fewer and fewer Wyoming lawyers handle substantial cases.  I can easily envision a near future when even the judges will be out of state lawyers who apply for those positions are deemed to be the only ones experienced enough in the topics to handle the tasks.

The Board of Law Examiners, by the way, dumped the CLE requirement as it was ineffective.  That should have been self evident from the get go, as it was quite evident to me, as one of the drafters of a section of it, that the time element of it was so short as to be nonsensical.  There was no way that anyone was going to learn much in that sort of CLE, and there was no test as a part of it.  It was just something a person had to endure.

In its place, the BLE is going to expand the Pathways to Professionalism, a mandatory professionalism course which will be expanded.  Well, quite frankly, programs on professionalism do not  enhance professionalism one iota.

In making this decision, according to the article I read, the BLE was conceding that the law of most states is all the same, and a person can just look it up on the Internet.  Oh really. Well, that's baloney, and anyone who has had the experience of out of state lawyers practicing in a complicated Wyoming case knows better.  Of course, if we persist in this path, it will become very similar to Colorado's law, as that's where the majority of out of state "Wyoming" practitioners live.

Indeed, recently I was in a case which had one such practitioner on the defense side and two out of state lawyers on the plaintiff's side.  The lawyer on the defense side had a practice heavily based on out of state work, and he commented that "he couldn't believe" that Wyoming allowed such simple CLE admission and that he'd think that Wyoming lawyers would resent it.  So, something that's pretty self evident to out of state lawyers practicing in the state apparently isn't to those who are supposed to be manning the gate here.

This entire situation has been a terrible shame.  The concept that Wyoming's bar exam was somehow fatally flawed was poorly thought out, and the Wyoming Supreme Court really bought a line of baloney in adopting the UBE sales pitch.  There's no excuse for it, and the situation should be reversed before the damage, which will take years to undo, becomes any worse.  It would be simple to repair.  Simply require that any applicant to the Wyoming bar take a test on Wyoming's law.

Wyoming has a lot of really good lawyers, still.  And we have a law school, still.  We can craft a Wyoming component and test those who wish to practice here on Wyoming's law.  We should.

If we don't, our current pathway will have a logical development.  Within a decade nearly all serious litigation will be handled by out of state lawyers, and Wyoming's lawyers will reduce in number and be reduced to minor matters and criminal matters.  The judges will start to come from out of state too, and our law will start to resemble Colorado's, whether we want it to or not. The law school of which so many Wyoming lawyers are graduates, will go by the end of the next decade, as the uniqueness of Wyoming's law will decline, and there will be no reason to have an institution that serves no state specific purpose.

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