This article suggests that the state judicial branches in the 1930’s and 1940’s may have overreached by holding that state legislatures did not have the constitutional power to define the practice of law. These holdings arose from the efforts of the organized bar, which may have been more motivated by fears of competing lobbying groups than by legitimate constitutional constraints on the legislatures' power. This development put the legal profession on a trajectory that may not ultimately be in the best interest of consumers of legal services. Part I is a brief overview of the early development of the separation of powers doctrine in the first state constitutions and how the early state constitutions allocated the power to regulate the legal profession. Part II examines the development of the inherent powers doctrine with respect to the regulation of the legal profession around the turn of the nineteenth century. Part III traces how the organized bar shifted its strategy from lobbying for legislation to define the practice of law in the 1920s, to litigating in the 1930s and arguing that it is unwise to try to define the practice of law and, furthermore, unconstitutional for the legislatures to do so. Part IV examines the conclusion that the judicial departments must have the power to define the practice of law in order to maintain their status as an independent branch of government. Lastly, Part V briefly looks at the modern implications of delegating the power to define the practice of law to the judicial branches of state governments. This section suggests that modern legal reform efforts should consider challenging precedents that have held there is a constitutional basis for the judiciary to claim the exclusive power to define the practice of law.
Rigertas, Laurel A., "Lobbying and Litigating Against "Legal Bootleggers"- The Role of the Organized Bar in the Expansion of the Courts' Inherent Powers in the Early Twentieth Century" (2009). Faculty Peer-Reviewed Publications. 622.
College of Law