This is My Blog and I Can Rant if I Want To…The Law is a Ass

First, on an unrelated technical point. I am not a bumbling illiterate idiot. The quote above is verbatim from Mr. Bumble in Oliver Twist. (Why Dickens did not use “an” I don’t know.) Now, on with the show.

My rant has nothing to do with promotions law, but it does have to do with the law (the aforementioned ass). Specifically, constitutional law. And statutory construction. And the right to practice law. I’m talking about the recent decision by the United States Second Circuit Court of Appeals’ decision in Schoenefeld v. Schneiderman.

The story starts with Ekaterina Schoenefeld, who according to her website, graduated from law school in 2005 and took a CLE course titled Starting Your Own Practice, where she learned about NY Judiciary Law § 470, enacted when Lincoln was president, which provides that a nonresident attorney must maintain an “office for the transaction of law business” in New York State in order to practice in its state courts.

As any newly-trained lawyer would do, she decided to bring a lawsuit against New York claiming that the law was unconstitutional, despite the fact that there were few and far-between instances when anyone even recognized that this law was on the books. She succeeded in the lower federal court. It was appealed. And the Second Circuit reversed the lower court.

In an analysis that would make Justice Roger B. Taney proud (he’s the guy that wrote the Dred Scott decision), the Court by Judge Reena Raggi held that the statute did not violate the U.S. Constitution’s Privileges and Immunities Clause because there was no “protectionist intent” by the legislature when the statute was enacted – meaning the NY legislature did not mean to curry favor with residents over nonresidents. You may recall that in Dred Scott, Justice Taney also interpreted the Privileges and Immunities Clause and came to the conclusion that Blacks could not be U.S. citizens because the drafters of the Constitution and the Privileges and Immunities Clause, in particular, were of the belief that at the time this Clause was drafted, all Blacks were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” Congratulations Justice Taney, by relying upon a completely disgusting view of original intent you penned the most racist decision ever issued by the U.S. Supreme Court.

Back to the Schoenefeld decision. The Court acknowledged that the original intent of the statute was to make sure that service of legal papers could be easily facilitated. Of course this was the intent, you couldn’t expect your horse to gallop 100 miles up the (as yet non-existent) Merritt Parkway so you can serve papers. The Court didn’t care that today (or any time after the light bulb was invented) service of papers is just a tad bit easier. The Court essentially admitted the law is a ass when Judge Raggi wrote “the office requirement is now largely vestigial as a means for ensuring service.” “Vestigial” means “forming a very small remnant of something that was once much larger or more noticeable” – I looked it up.

But who cares if the law is vestigial or not relevant to today’s society, because the “original intent” was not to scr*w attorneys who go to law school in New York, take the New York bar exam, meet with some weird lawyer in Queens to pass the “ethics” requirement, get admitted to the New York bar, pay a $375 biennial fee, take 25 hours of CLE courses every two years, practice for years in New York, and then move a mere 30 miles away to Connecticut.

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