Wednesday, February 13, 2008

kanBARoo Court. 29A Installment. Why didn't Bill Clinton argue federal preemption?

Clinton filed no Arkansas brief. To argue preemption, Clinton would have to appeal the decision. Here a difference between many other systems and California's comes into focus. California has created the most "advanced" State Bar establishment in the world, having set up a separate court system with its own Bar law. Other jurisdictions, such as Arkansas, have different rules for Bar cases, much like California's, but no separate State Bar system, which means primarily that they lack the equivalent of California's Review Department and a separate legal reporter for State Bar cases.

In Arkansa after a decision is rendered by a committee appointed by the state's Supreme Court, the latter court usually approves the disbarment. Thus there is no procedural room to appeal a disbarment decision, whereas in California an appeal can be taken to the Review Department and subsequently to the California Supreme Court. To raise the preemption defense, Clinton would have had to appeal to nothing less than the U. S. Supreme Court. A challenge to State Bar procedure can be initiated in federal district court, but the U.S. Supreme Court has exclusive jurisdiction over a challenge to a state's disciplinary decision concerning only an individual. (John Doe v. E.E. Pringle (10th Cir. 1976) 550 F.2d 596 ["[F]ederal courts do exercise jurisdiction over many constitutional claims which attack the state's power to license attorneys involving challenges to either the rule-making authority or the administration of the rules [citations] such is not true where review of a state court's adjudication of a particular application is sought."])

While practical politics might explain Clinton's failure to appeal, to my knowledge, no legal commentator raised the federal preemption issue. One consequence of the dearth of significant controversies in State Bar court is that commentators have little interest in the decisions. Considering the critical role the State Bar or Bar-equivalents play in regulating the practice of law, the commentators are misguided in their apathy.

Best to understand this blog:

* Read the 1st, 2nd, 7th, 8th, and 14th Installments, first; or
* Make liberal use of hyperlinks; and then
* Follow your interests; or
* Follow the case.

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