The Bar Sinister

As Nevada’s Supreme Court careens from one self-inflicted embarrassment to another, a question always recurs.

Why does this panel of presumably bright lawyer-politicians so often demonstrate contempt for both the letter and spirit of constitutional law?

Virtually every recent decision raises this issue anew. In the Pappas takings case the court again deferred to a lawless city redevelopment agency. This week it refused to repudiate its botched July attempt to deep-six the state constitution’s two-thirds Gibbons tax rule. Regularly eviscerating the U.S. and Nevada constitutions, the court seems set on leaving every property owner in the state defenseless against voracious special interests and their purchased politicians.

One explanation of the recurring malfeasance on the court would no doubt be inertia. Misbehavior on Nevada’s high court has been going on for so long that it has become routine—part of the state’s unique cultural tradition, along with stand-up Mob guys who win B’nai B’rith awards and heart-of-gold hookers hustling Interstate 80 truckers via CB radio.

The issue of Nevada’s untrustworthy judicial system has been addressed by NPRI many times.

Spotlighted in recent weeks were the Supreme Court’s years of scamming state taxpayers so that justices could reap salaries higher than those the state constitution entitles them to. But years earlier the Institute detailed systemic statewide problems in Nevada’s district, justice court and municipal courts—where revenue issues put judges in gross, yet institutionalized, conflicts of interest, virtually guaranteeing the corruption of justice. That particular Nevada Journal article, “A Law Unto Themselves: Nevada's Judge Roy Bean Justice System,” is on the Web at http://nj.npri.org/. It’s the April 1999 cover story.

Given the Silver State’s statewide problems with the integrity of justice, naïve sorts might expect the state bar association to be vigorously leading a statewide fight in behalf of its professed ideals. After all, bar associations around the world publicly justify their existence by proclaiming improvements in the administration of justice their paramount goal.

Unfortunately, saying does not make it so. As even the Encyclopedia Britannica notes, bar associations in general are concerned primarily with furthering the interests of lawyers—defined almost exclusively in pecuniary terms.

Bar associations, however, are not merely indifferent to reform. By and large they have become self-reinforcing engines for the resistance to reform.

This effect flows inexorably out of the cupidity that, necessarily, is the lowest common denominator of membership. Bruce Fein, a nationally respected constitutional lawyer, is an inveterate champion of the bar, which he deeply cherishes. But even Fein confesses that

The ethical pieties lawyers preach to brighten their bleak image are as hypocritical as Elmer Gantry sermonizing for abstinence. Bar associations labor day and night to erect barriers to entry and to inflate the cost of legal services. And lawyers sleeplessly celebrate judicial activism because their value to clients climbs commensurately with the law-making importance of the courtroom.

Dickens identified the wellspring of state bar corruption 150 years ago: “The one great principle of the … law is to make business for itself.”

It was in regard to this “principle” that in the 1920s state bar associations all across America implicitly sold their souls.

As always, many lawyers at the time were complaining that “excessive competition” was keeping them from charging the level of fees they desired. The American Bar Association responded with a nationwide program to raise prices by restricting supply.

It did this by destroying the paths into the practice of law that Thomas Jefferson, Abraham Lincoln, Clarence Darrow and thousands of others had traveled—private study and apprenticeship. Required instead was graduation from expensive three-year ABA-approved law schools. When most state legislatures rubberstamped the restrictive legislation, the ABA achieved an effective chokehold over the annual crop of new lawyers admitted to the bar. Later, desiring even a tighter cartel, the ABA got states to prohibit people not in the bar from the “unauthorized practice of law.”

Here in the Silver State, in 1928, the Nevada bar association got itself converted into a government-sanctioned monopoly. Part of the arrangement, however, put the new State Bar of Nevada, by law, under “the exclusive jurisdiction and control of the Supreme Court of Nevada.”

Consequently, today—no matter how bizarre the antics on the high court—you don’t hear public criticism from members of the Nevada bar.

It’s part of the package deal: The state bar cartel got permission to operate as a venal statewide combination in restraint of trade.

But every Nevada attorney lives today with the Supreme Court thumb on his windpipe.

Steven B. Miller is policy director of the Nevada Policy Research Institute.