even if they don't have a state license, the Fifth Circuit held yesterday in Byrum v. Landreth. Texas doesn't require interior designers to be licensed, but forbids unlicensed designers from calling themselves "interior designers." The Fifth Circuit held that this likely violated the interior designers' "commercial speech" rights (i.e., the lesser but still substantial First Amendment rights recognized by the Supreme Court as to commercial advertising), and thus ordered the district court to grant a preliminary injunction against enforcement of the law. In principle, the Fifth Circuit just made a preliminary finding of likelihood of success on the merits, but the reasoning of the case suggests that the same result would likely be reached on a motion for permanent injunction.
Here's an excerpt from the court's reasoning:
The State advances a circular argument that the speech inherently tends to mislead consumers. It runs: Texas created a licensing regime; therefore, unlicensed interior designers who refer to themselves as interior designers will confuse consumers who will expect them to be licensed. The descriptive terms “interior designer” and “interior design” are not, however, inherently misleading. They merely describe a person’s trade or business. The terms can be employed deceptively, for example if a person does not actually practice interior design, but the speech is neither actually nor inherently misleading. This argument also proves too much, as it would authorize legislatures to license speech and reduce its constitutional protection by means of the licensing alone.
The State next relies on two pieces of evidence to prove that unlicensed interior designers who use the title are engaged in misleading speech. The district court correctly rejected both proffers. The State offers a survey that asked irrelevant questions concerning the respondents’ general preferences for “licensed” professionals. The survey included five substantive questions and seventeen demographic questions. The only question even arguably relevant to whether the job title “interior designer” is misleading was, “if there were two professionals offering the same service, one with a license, and one without a license, do you think that it is deceptive or misleading or both that the licensed and unlicensed person can use the exact same professional title?” Unfortunately, because no definition of the qualifications of the “licensed” professional was included, no probative value can be attached to the responses. We are also unable to attribute probative value to a legislative report, prepared three years before the statutes here at issue were passed, finding that some people are confused about what type of services interior designers provide and marshalling comments for and against licensing these occupations. Significantly, the legislative committee that authored the report made no suggestions for legislation of any kind.
Both the survey and the legislative report expose the fallacy in the State’s effort to characterize certain interior designers’ professional practices as misleading. There is no fixed definition of the covered occupations. Interior designers may confine their work to harmonizing color schemes and selecting furnishings for private residences; or they may design the physical layout of commercial spaces, including aesthetic, functional and safety attributes; or they may furnish services on a wide spectrum between these alternatives. Where no fixed definition of the services exists, there can hardly be a claim that the public is being misled about particular individuals’ truthfully expressed level of expertise or services. The State has offered no evidence that the public has actually been misled about interior design services.
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But don't try this game with "lawyer," "doctor," or "surveyor."
I guess the state can bar unlicensed designers from working altogether, but it can't require them to refrain from calling themselves designers. That's kind of strange.
Now, is there a distinction between "lawyer" and "attorney"? Is the former anyone with a "legal education," while the latter goes further and requires admission to practice law somewhere? Or, may all "lawyers" represent themselves truthfully as "attorneys" no matter whether they are or ever have been admitted to practice law in any jurisdiction?
Posing? Strong words. A usage you personally do not prefer is not always objectively incorrect. There were engineers before there were engineering degrees.
Also, it's hard to claim the moral high ground on this one unless your branch of engineering has something to do with actual engines.
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LOL
ahhhhhhhhh SHAD-DAPPPP!
Also, one of my buddies used to practice before he was licensed, with legal aid. Couple judges he appeared in front of queried him and thought it curious, but he slid through somehow, and then he passed the bar later on.
Also, it's hard to claim the moral high ground on this one unless your branch of engineering has something to do with actual engines.}
Just as there were lawyers before law schools, there were engineers before engineering schools. Still, that doesn't make someone with 3 months of night study and a 2 hour exam an "engineer" any more than it makes a paralegal qualified to represent you in court.
And yes, my branch of engineering has something to do with actual engines (my undergrad is a BSME). So you can secure the snark.
With the exception of writers and the like, the state has the option of calling anything it wishes a profession and requiring licensing for entry if it thinks doing so furthers the public good. It may be wise, it may be unwise, but it's not the courts' business.
I predict more man caves and the main-streaming of plastic slipcovers.
You say that as if "the courts" are not an aspect of "the state". To whatever extent one can speak a state as an entity capable of making choices, the courts are certainly a part of that process.
As an Engineer, I learned long ago to specify "color selection to be made by Owner." This is one area where I will refuse to state an opinion of any sort.
With engineers the choice depends more on the field of practice. In those areas where the engineer can work for an industrial firm (usually this would be the case for a mechanical engineer, one who works with "real engines"), no license is needed. The engineer's work is covered as a part of the normal operations of the manufacturing corporation.
If you are an engineer working in Public Works for cities or offering yourself out for hire to work on other's projects, you'll have to get a license.
After I completed the 4 hour afternoon session of the PE exam in 45 minutes, I questioned the value of that piece of paper. Until I met some engineers who failed it multiple times. Now, as a libertarian, I am very conflicted.
There's nothing anti-liberty about certifications. There's something definitely anti-liberty about state interference in mutually agreeable service transactions. If you say "I won't hire you unless you're certified by X private standards body", that's just fine. If the state says "you can't hire him unless he's certified by Y state-mandated standards body" that's a whole different issue. If I've satisfied myself as to my contractor's level of competence, it's nobody else's business but mine (and possible my insurance company.)
Voluntary certification standards work just fine. See Underwriters Laboratories, for example.
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I urge UL and others to not rest on their laurels. Some of the "standard solutions" are deficient to the extent they will NOT prevent assignment of liability. IOW, there is lots of room for debate within the parameters of "work fine."
Licenses are sort of a scam, but a necessary evil, I suppose.
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He noted "afternoon session" being completed in 45 minutes.
The PE was two 4 hour sessions in 1978. Both sessions were a choice of 4 problems out of 11, with the solutions written in a little blue book. (No multiple choice) Since I took the test in CA, there was a required Survey problem and a required earthquake problem. Both of those were in the morning session. I spent 20 minutes and got two free choice done. If the survey problem was math, I would have been fine but it was essay specific to CA. Earthquake, my only background was a friend's notes I studied the night before. So the morning 4 hrs was spent writing BS about survey and earthquake.
In the afternoon I did 5 of the 11 problems in 45 minutes or so and had to decide which one was not to be scored.
The EIT in 1973 was 8 hours multiple choice and more difficult than the PE.
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Without making the value judgement, the opinion seems to track a value judgement on the subject of "interior design." The state can't regulate titles that lack a serious risk. Of course interior decorators will object ... so will astrologers and psychics.
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I'm LOL at the lament, "My interior designer is a phony!"
To protect the publc from the charlatans, of course.
(Alas, I can't find a reference to this on the Web. History didn't begin until 1990, you know. But I remember the incident quite well, since I was a grad student in astrophysics at the time. Oddly enough, nobody cared about licensing astronomers ...)
I suppose, strictly speaking, that anyone can call himself a lawyer since the relevant state statute typically prohibits the practice of law without a license, not calling oneself a lawyer without a license. So anyone can call himself a lawyer as long as he isn't actually practicing law.
There's nothing anti-liberty about certifications.
I believe the libertarian position is that certifications are good things - short hand for competence or a certain degree of quality. It's just that libertarians question the value of having the government do the certification, or perhaps the competence of the government to handle that project, or both. I don't think any libertarian objects to the idea, for example, of a private trade association getting together and coming up with a set of standards that people have to meet if they want to refer to themselves by the trademarked term "Linux certified by the XYZ network software standards association."
I wasn't around the first time he ran for governor, but if he runs again (and it seems that he will at least if DiFi doesn't enter the race) then this would be a good reason to vote against him.
When will the libertarian lawyers call for the abolition of the Bar. Or is the public really threatened by those who haven't been through the proper
educationhazing?And there are also plenty of graduates posing as engineers - the sheep-skin is not that useful as certification.
I have a clear memory of reading about the issue in the L.A. Times. If I am mistaken (and perhaps I am) then I apologize to all concerned, including Mr. Brown. And also, if I am mistaken, then this is an interesting datum about how memory works -- and doesn't work -- over three decades.
I can't imagine the chaos this sort of ruling would have if it occurred in California, what with our "no license = no money" laws (B&PC 143). Seriously - if you want a free house, go hire an unlicensed contractor and stiff him on the bill.
While I've encountered plenty of useless college grads, the vast majority of ABET engineering school graduates have a basic level of competence that I find reassuring. I would prefer if FE exam passing was mandatory for graduation, though.
Having taken the FE, I'm not totally sure how a non-engineering graduate could pass, but if they can, I'd be pretty impressed with them.
"Doctor" can pertain to those with many different backgrounds, whereas "physician" pertains only to doctors of medicine, whether allopathic (MD) or osteopathic (DO).
Being a lawyer is inherently a government-related function, and moreover is one of the few government-related functions that even strict libertarians agree is proper.
Really? A private attorney repping a client is "inherently a government related function?" Even if it's purely transactional, no one stepping into Court?
Really?
I'm not an interior designer, but my guess is that interior designers would argue that they frequently oversee expensive renovation projects, so there is at least significant monetary risk. I don't know what, if any, responsibility they bear with respect to the safety of the renovations.
That seems like a field where people are itching for a little title inflation anyway.
Aesthetic feng shui coordinator?
Living space harmonizer?
interior designers are not retained for their studious background or meticulous calculations. they're retained for their subjective outlook that others happen to find pleasing. if the interior designer makes a mistake, no one goes to jail for life, and no one gets their arms blown off. all that happens is that you have to change the curtains. big deal. maybe you need a couple more grand in redecoration expenses to centralize your chi.
and it's not as if interior design is a job (like contracting) where injury on the job is likely, so the worker(s) need insurance. first amendment grounds aside, there is very little risk to life and limb for unlicensed practice of interior design so due process / equal protection might even win on rational basis grounds.
THANK YOU. That is the real point, there can (maybe) be a legitimate reason for state licencing of engineers, or doctors, or some other profession where a person who is faking it can cause real physical harm to the state. Bridge collapses, improper surgery, whatever, maybe even the practice of law, but interior deisgn? There is no harm that can come from this, ugly carpets never killed anyone.
I can not imagine any (legal or otherwise) objection to, say famous people in other walks of life who have law degrees but are not licensed (e.g., Tony La Russa, Chris Collinsworth, Jay Bilas, Jack Ford) calling themselves "lawyers", as long as they do not sign a pleading for someone.
I had occasion to work with Don Altfeld, who wrote "Little Old Lady from Pasadena", on a barter deal a long time ago. He was a medical doctor who had given up the practice many years earlier to become a song writer. His cards still said "MD" on them.
And my old man wanted me to be an engineer, but I never liked trains.
:-)
The 5th Circuit Court of Appeals is a Federal court. Federal courts are not part of a state.
The U.S. Constitution guarantees that it is to the full extent not specifically delegated. U.S. Const Amendments 9, 10. The power to establish and regulate professions is a 10th Amendment power.
A rational basis is easily shown: simply registering people makes taxing and regulation easier, and it's rational to believe that standards or requirements improve quality.
If by "searching rationale basis" you seem to mean you "whether the judge thinks it's a good idea".
We have no basis for knowing "reality" on political matters. The real world simply does not behave in the rational way our minds want it to: it continuously surprises us and presents us with the unexpected. We often think our own deeply-held beliefs and emotions are "real" because they are near to us and we may feel them deeply. But "reality" depends on the future. And we rarely know what the future will hold anywhere near as well as we think we do. When "rational" means conforming to our own personal set of ideological principles, we have to understand that the world will not necessarily conform to those principles.
THat is, the world is often not rational, and laws have to take its non-rationality into account. Solutions derived by "rational" means -- that is, by logical inferences from a set of believed absolutely true axioms or principles -- often collide with unexpected complexities and fail. The fundamental belief of our constitution is that democratically elected legislatures able to deliberate for long periods of time and hear from multiple constituencies before axioms are capable of arriving at solutions better equipped to deal with these complexities than unelected judges who hear an hour of arguments and read a few dozen pages of briefs by two lawyers before making a decision affecting people's lives forever.
So by the technical definitions, you can be a "lawyer" (someone with legal training) or an "attorney" (someone acting in place of another) without actually being licensed by the Bar or authorized to practice law. I personally wouldn't recommend using those on my business cards unless I had a law license, but that's a different story. ;)
It isn't really a government related function--but on the other hand, I don't think you'll have trouble getting a lot of libertarians to say it ought to be allowed.
More to the point, you've just cleared libertarians of the accusation of hypocrisy. If they think anyone should be allowed to be a lawyer for the purposes of private research, but also that governments should continue to license lawyers who go to court, it's perfectly consistent.
The ultimate source for the binding power of a contractual agreement is enforcement by a court.
I would expand "go to court" to include drafting of documents that might, at some point, require a court for their effect.
Absolutely. That would be sufficient if improving the quality of our interior decor is a legitimate government function.
The test isn't just rational basis, it's rational basis related to a legitimate government purpose.
I thought the Texas approach was reasonable. Let anyone do what they want but if you don't pass a test covering building codes, fire codes, design principles, etc. (which are covered on the Conn. test, I don't know about Texas), don't call yourself an "interior designer," instead, call yourself an "interior decorator" or whatever.
Is there a real world difference? Well, decorators pick finishes, fabrics and furniture; interior designers do that as well as interior architecture, including space planning, designing built in cabinets and custom furniture, and managing big renovation and construction projects. At major interior design firms (the ones that design all the big law firm and bank offices, for example), architects and interior designers work side by side and all have degrees in their field.
That said, if it were up to me I'd do away with bar licensing requirements altogether and let caveat emptor.
As libertarian Texas attorney, I am definitely for abolishing mandatory bar admittance to practice law. Private firms should be free to hire only admitted attorneys, but anyone who wants to should be able to stand up in front of court and represent themselves or another. Of course, the Court should (and is) free to hold in contempt or exercise other remedies for e.g. frivolous pleadings, and malpractice suits are a remedy for those taken advantage of by unscrupulous, unlicsensed practitioners.
What you ultimately get is unlicensed lawyers undercutting the licensed ones in the marketplace by low pricing. We already see this envelope being pushed with e.g., wills kits, tax accountants giving tax law advice, realtors (that's REALTORS (tm) in Texas! Another exclusionary racket) giving legal advice, etc.
As a practical matter, this will lead to a lot of wasted time both with initial frivolous pleading and then adjudicating the resulting sanctions, remedies and malpractice suits. As a taxpayers, I'm not keen on expanding the court's costs in such a fashion.
I suppose, in lieu of bar certification, you could make attorneys post a bond paying for the court's time...
We should do that anyway.
I'd give every lawyer a swipe card... first 100 hours in that court he pays "X" dollars per hour. Next 100 hours he pays 1.25X. Next 100 hours 2.0X.
Of course, that might just mean these guys start commuting to other courts.
Interior designers do indeed undertake extensive renovation projects. It's not just repainting the kitchen walls—they'd expand the windows, turn an interior wall into a bar, and move the stove across he room. Doing this kind of thing safely requires a lot of familiarity with the internals of a house. Can you cut out more of the exterior wall without imperiling the structural soundness of the house? Is the interior wall supporting? Can you safely move the gas line to the other side of the room? Will the resulting design be complaint with the various building codes?
You need to know quite a lot to create a safe design and oversee its construction. If you screw it up your client could be injured or killed.
The one deals with building code and occupant saftey related issues, the other is purely asthetic.
If you get rid of interior design related licensure, it doesn't mean that interior decorators will be able to do interior design. Instead that work will have to be done by licensed architects or engineers.
Like Connecticut Lawyer said, basically there are "interior decorators" and "interior designers". Most of the commentors thus far have picked up on what interior decorators do (fabrics, furniture, art, fluffy frou frou stuff). Interior architecture and space planning is a totally different, nebulous area that architects and interior designers are forever stepping on each others' toes about.
ASID, the interior design lobby, pushes for the licensing requirement because it gives interior designers a larger claim on work that would (should) otherwise be performed by an architect. The theory is that a licensed interior designer is proven to understand the complex codes and associated life safety issues that are required of the work performed. (Theory and practice are two different things, but my youthful experience has already made me biased.)
Removing the licensing requirement will make it difficult for consumers to differentiate which "interior designers" really are qualified to do the work. This is bad for consumers (especially novice clients), but probably good for architects in the long run.
I believe this has been done in certain repeat pro se prisoner litigant cases, like the notorious Motion to Kiss my Ass
LMAO at that -- thank!
Read: someone to come up with some bullshit reason why putting a desk here and a cubicle there is better than the cubicle here and the desk there.
It's not rocket science to take an empty floor plan and figure out how to arrange stuff inside it. The fact that serious people continue to insist that one ought to get a license to do that is somewhat mind-boggling.
That's a nice piece of work there, and they still left the door open for the guy.
For example, would someone be able to claim First Amendment rights because of state action to remove them from my home ( ie calling the cops)if they make rude or offensive statements?
Lawyering, whether in Court or transactonally outside the Court, is not some governmental act giving rise to a State interest in licensing.
In the end, we lawyers have to accept the fact that we're Teamsters in suit and just have an ultra bad-ass union in the for
And kenvee, thanks for your response regarding "lawyer" vs "attorney." You have convinced me that there is no real difference.
Inherent in a pluralistic democratic society is the idea that people will disagree about virtually everything -- for any proposed law, some people will think it's a good idea, some people will think it's a bad idea.
I would urge libertarians not to foist libertarianism on people against their will by appealing over their heads to judges -- or for that matter to the military. If libertarianism is to be adapted, it should be with the people's consent, not against it.
A lot of commenters here (though not all) are missing the following very important point stated in the decision's opinion (shown in bold) --
This differs from licensure laws where unlicensed individuals are prohibited from either using the occupational title or practicing the occupation.
Here is an article about the lawsuit -- interestingly, Connecticut had a similar restriction on the use of the term "interior designer." And here is a related article on Timothy Sandefur's Freespace blog.
To elaborate upon that a little --
If you are not allowed to practice the occupation, the issue of whether or not you are allowed to use the occupational title is moot.
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