Supreme Court Anti-trust Decision May Impact Family Courts

May 13, 2015
By Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

For years now, state bar associations have lobbied legislatures on all manner of bills. Among those have been initiatives and proposed legislation on shared parenting. In the case of mandatory bar associations (those that an attorney is required to join if they wish to practice law in their state), that lobbying is clearly illegal according to multiple decisions by the U.S. Supreme Court. Readers of the NPO blog are well aware of this.

A new decision by the nation’s highest court may also impact not only bar associations, but the multitude of professionals whose opinions impact child custody decisions. This National Law Journal article (May 11, 2015) explains.

“The justices’ Feb. 25 decision in North Carolina Board of Dental Examiners v. Federal Trade Commission held that the doctrine of state-action immunity did not shield the board from Sherman Act antitrust regulation. The doctrine extends immunity to bodies acting in their sovereign capacity.”

"Active market participants cannot be allowed to regulate their own markets free from antitrust accountability," Justice Anthony Kennedy wrote for a 6-3 court. "When a state empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest. If a state wants to rely on active market participants as regulators, it must provide active supervision."

In other words, the days of wink-and-a-nod “regulation” by state bar associations is over. Now they’ll have to be able to prove that they actually enforce rigorous standards of professional competency on their members who, after all, form a monopoly in the provision of legal services.

The chances are good that the decision applies to judges as well. Would that require state bars to train family court judges in the science applicable to child well-being? It may well. It almost certainly establishes a cause of action for individual litigants to bring suit against bar associations that supposedly train judges, but fail to do so in accordance with established science.

Does the decision affect the behavior of other professional monopolies that provide services to family courts? Almost certainly.  Those include mental health professionals, guardians ad litem, friends of the court and the like. Many of those have proven the bane of parents’ existence in family courts. Reports of the shoddiest and most biased decision-making by those professionals are rife. Indeed, in Connecticut, the U.S. Department of Justice is now investigating court practices, including those of family courts, for allegations of corruption.

This latest Supreme Court case provides yet another arrow in the quiver of family court reform advocates.