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Interior Designers Have the Right to Call Themselves "Interior Designers,"

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.

cboldt (mail):
See, e.g., "engineers."
.
But don't try this game with "lawyer," "doctor," or "surveyor."
4.23.2009 8:00pm
MCM (mail):
Well, according to Black's Law Dictionary, a "lawyer" is someone with a "legal education". So you could call yourself a lawyer as soon as you finished law school, but you still couldn't practice law until you passed the relevant jurisdiction's bar. I think this actually came up in an ethics class when I was in law school.
4.23.2009 8:18pm
Steve:
Seriously, can you call yourself a lawyer if you're in that line of business, but you just happen not to have a law license? Somehow I don't foresee the courts deciding that one!

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.
4.23.2009 8:18pm
Tammy Cravit (mail):
How about "paralegal" and "legal assistant"? California presently requires statutory minimum educational and MCLE requirements for those wishing to use either of these titles (See Calif. Bus. &Prof. Code section 6450 et seq.) The intent of that law seems to be primarily to make it slightly harder for paralegals to represent themselves as attorneys and engage in the unauthorized practice of law. Notably, however, paralegals who work only for attorneys (as opposed to those who work as "legal document preparers" etc.) do not require licensure in California, and no attempt by the State is made to ensure compliance with the statutory requirements. Would the Fifth Circuit's reasoning apply equally to that situation?
4.23.2009 8:23pm
DG:
The issue with engineers is a tricky one. Most engineers are graduate engineers (i.e. we have degrees in engineering from ABET accredited schools), but do not hold professional engineering licenses because its not required for most positions in today's workforce (as opposed to 50 years ago). There are also non-graduates who are posing as engineers, many of whom have flimsy IT certificates.
4.23.2009 8:25pm
neurodoc:
MCM: Well, according to Black's Law Dictionary, a "lawyer" is someone with a "legal education". So you could call yourself a lawyer as soon as you finished law school, but you still couldn't practice law until you passed the relevant jurisdiction's bar. I think this actually came up in an ethics class when I was in law school.
You can call yourself anything you want, can't you, the rub being whether you can hold yourself out to do business as such without violating a licensing requirement or committing fraud.

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?
4.23.2009 8:36pm
neurodoc:
Serious, or at least semi-serious question: What will this decision mean for the field of interior design in the Lone Star state? Will a significantly greater number of people now offer themselves as "interior designers" than before? Will the quality of "interior designer" services decline, stay the same, or even increase? Will the pricing of "interior design" services decrease, increase, or stay the same? What has been the experience elsewhere when licensing barriers of various sorts have fallen for barbers and beauticians, masseuses, and various and assorted other endeavors?
4.23.2009 8:41pm
Gabriel McCall (mail):
There are also non-graduates who are posing as engineers, many of whom have flimsy IT certificates.

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.
4.23.2009 8:46pm
AndrewK (mail):
Does anyone know how LONG the Texas regime had been in place? It's bizarre that I can't find the date of the licensing regime anywhere in the opinion. If I were the State, the first piece of evidence I would use in arguing the "confusion" bit is that due to the length of time at issue, "interior designer" has come to mean "someone with a license." Otherwise I see no way to get out of the circularity problem.
4.23.2009 8:46pm
Oren:
I had hoped this would be another "rational-basis but for real" (alternatively "rational basis with teeth" or "searching rational basis") wherein we are treated to an analysis of all the theories under which the licensing of interior designers can be said to be rationally related to a legitimate State interest (non-clashing decor, perhaps?).
4.23.2009 8:58pm
cboldt (mail):
-- 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. --
.
LOL
4.23.2009 8:59pm
rosetta's stones:

"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."


ahhhhhhhhh SHAD-DAPPPP!
4.23.2009 9:05pm
rosetta's stones:
This may be urban legend, but a lawyer once told me that you could practice law, as long as you've never attended a law school. But one day in the classroom and you're out. Seems strange.

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.
4.23.2009 9:10pm
DG:
{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.}

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.
4.23.2009 9:13pm
ReaderY:
But what if the public thinks a person who plays a doctor or lawyer -- or a judge -- on TV is really a doctor or lawyer or a judge? If the decisive test for whether one practices a profession is whether the public thinks one is practicing the profession, there are plenty of cases where one could demonstrate that this is what the public thinks. Presumably the state of Texas would have no right to prevent such unlicensed doctors and lawyers -- or uncommissioned judges -- from practicing and from calling themselves doctors, lawyers, and judges?

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.
4.23.2009 9:16pm
Putting Two and Two...:

What will this decision mean for the field of interior design in the Lone Star state?


I predict more man caves and the main-streaming of plastic slipcovers.
4.23.2009 9:27pm
Gabriel McCall (mail):
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.

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.
4.23.2009 9:32pm
ChrisIowa (mail):
Oren

I had hoped this would be another "rational-basis but for real" (alternatively "rational basis with teeth" or "searching rational basis") wherein we are treated to an analysis of all the theories under which the licensing of interior designers can be said to be rationally related to a legitimate State interest (non-clashing decor, perhaps?).

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.
4.23.2009 9:34pm
ChrisIowa (mail):
DG

The issue with engineers is a tricky one. Most engineers are graduate engineers (i.e. we have degrees in engineering from ABET accredited schools), but do not hold professional engineering licenses because its not required for most positions in today's workforce (as opposed to 50 years ago). There are also non-graduates who are posing as engineers, many of whom have flimsy IT certificates.

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.
4.23.2009 9:46pm
Gabriel McCall (mail):
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.
4.23.2009 9:53pm
cboldt (mail):
-- Voluntary certification standards work just fine. See Underwriters Laboratories, for example. --
.
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."
4.23.2009 10:08pm
rosetta's stones:
Chris, your PE exam was only 4-hours? I assume you took an 8-hour EIT, at least?

Licenses are sort of a scam, but a necessary evil, I suppose.
4.23.2009 10:12pm
cboldt (mail):
-- Chris, your PE exam was only 4-hours? --
.
He noted "afternoon session" being completed in 45 minutes.
4.23.2009 10:17pm
ChrisIowa (mail):

Chris, your PE exam was only 4-hours? I assume you took an 8-hour EIT, at least?

Licenses are sort of a scam, but a necessary evil, I suppose.

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.
4.23.2009 10:38pm
rosetta's stones:
Never had to look at seismic, but everything else sounds the same, except no essay questions, all problem solving as I recall. I wasn't smart enough to get out in 45 minutes in the afternoon, but I think it was less than 2 hours. They let us pick our 4, and I scoured that test and found a birdsnest on the ground, a simple hydraulics problem that they had to screw up putting on there, because it took about 15 seconds to work. The EIT was more stressful I agree.
4.23.2009 10:47pm
tvk:
Surprisingly weak opinion from someone who is normally a good judge. I take it no one can dispute that the state can forbid unlicensed interior designers from calling themselves that if it banned them from working altogether. So the state is a little more generous--you can work in interior design, but you can't call yourself an interior designer. Usually the greater power (banning unlicensed interior designers from working and calling themselves such) includes the lesser power (just banning calling themselves such). Not a hard-and-fast rule, but certainly something that should have been considered in more detail.
4.23.2009 11:02pm
cboldt (mail):
-- Surprisingly weak opinion --
.
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.
.
I'm LOL at the lament, "My interior designer is a phony!"
4.23.2009 11:08pm
rosetta's stones:
I'll make the case for a technically proficient interior design, when it comes to the proper and safe use of space, and if that's what the licensed guys are doing. Me personally, I'd hire an archite... er.. an arrrchi... cough... gasp... wheeze... you know, one of those guys that draws pretty pictures and stuff of buildings, if I wanted to make proper use of my space. Now whether the state needs to be getting into this is another question.
4.23.2009 11:17pm
Mike G in Corvallis (mail):
Back when Jerry Brown was Governor of California, he endorsed a bill in the state legislature to license astrologers.

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 ...)
4.23.2009 11:51pm
Cornellian (mail):
Seriously, can you call yourself a lawyer if you're in that line of business, but you just happen not to have a law license? Somehow I don't foresee the courts deciding that one!

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.
4.24.2009 12:01am
Cornellian (mail):
Now, as a libertarian, I am very conflicted.

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."
4.24.2009 12:05am
Cornellian (mail):
Back when Jerry Brown was Governor of California, he endorsed a bill in the state legislature to license astrologers.

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.
4.24.2009 12:06am
Malvolio:
Back when Jerry Brown was Governor of California, he endorsed a bill in the state legislature to license astrologers.
It was St. Petersburg, Florida in 1940 (I can't prove a negative -- that it never happened in California -- but a proposed local ordinance 70 years ago I found easily, whereas a comparatively recent statewide attempt, if it happened, left no trail.)
4.24.2009 12:29am
unhyphenatedconservative (mail):
Am I the only one amused that on a blog claiming to have libertarian values, there are celebrations of these sorts of licensing restrictions falling yet the elephant in the room is never addressed.

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 education hazing?
4.24.2009 12:29am
Tony Tutins (mail):
I can call myself an attorney in fact I am.
4.24.2009 12:30am
John Moore (www):

There are also non-graduates who are posing as engineers, many of whom have flimsy IT certificates.

And there are also plenty of graduates posing as engineers - the sheep-skin is not that useful as certification.
4.24.2009 12:42am
Mike G in Corvallis (mail):
(I can't prove a negative -- that it never happened in California -- but a proposed local ordinance 70 years ago I found easily, whereas a comparatively recent statewide attempt, if it happened, left no trail.)

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.
4.24.2009 12:47am
wooga:
Sweet. I now will refer to myself as a "Contractor," since I enter into contracts.

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.
4.24.2009 12:49am
DG:
{And there are also plenty of graduates posing as engineers - the sheep-skin is not that useful as certification.}

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.
4.24.2009 12:59am
neurodoc:
One more try..."lawyer" vs "attorney," any difference or one and the same? (Might have said something about a rose by any other name smelling just as sweet, but don't want to open that door.)

"Doctor" can pertain to those with many different backgrounds, whereas "physician" pertains only to doctors of medicine, whether allopathic (MD) or osteopathic (DO).
4.24.2009 1:10am
Ken Arromdee:
When will the libertarian lawyers call for the abolition of the Bar.

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.
4.24.2009 1:29am
unhyphenatedconservative (mail):
Ken Arromde,
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?
4.24.2009 1:45am
Perseus (mail):
The state can't regulate titles that lack a serious risk. Of course interior decorators will object

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.
4.24.2009 3:53am
BGates:
you can work in interior design, but you can't call yourself an interior designer.

That seems like a field where people are itching for a little title inflation anyway.

Aesthetic feng shui coordinator?

Living space harmonizer?
4.24.2009 4:09am
yet another lawyer:
i don't know how anyone can compare the practice of law or engineering to interior design. having both an engineering and law degree, i actually laugh out loud just thinking about it.

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.
4.24.2009 6:12am
thatguy (mail):
yet another lawyer:

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.
4.24.2009 8:37am
Smooth, Like a Rhapsody (mail):
There is no difference legally or any other way between "lawyer" and "attorney".
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.
4.24.2009 8:40am
geokstr (mail):
I passed the CPA exam thirty years ago and fulfilled the two year public accounting (or equivalent) experience requirement, so even though I have not kept my license current, I can still call myself a CPA. However, I can't sign financial audit reports anymore, which is the only thing a CPA can do that a non-CPA can't, until I bring my license up to date. (The certification privileges certainly didn't do Enron's or Madoff's investors much good.)

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.

:-)
4.24.2009 8:41am
ReaderY:

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.


The 5th Circuit Court of Appeals is a Federal court. Federal courts are not part of a state.
4.24.2009 8:53am
ReaderY:

To whatever extent one can speak a state as an entity capable of making choices


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.
4.24.2009 8:55am
ReaderY:

I had hoped this would be another "rational-basis but for real" (alternatively "rational basis with teeth" or "searching rational basis")


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.
4.24.2009 9:08am
ReaderY:
typo - "before acting". Sorry.
4.24.2009 9:09am
Kenvee:
On the "attorney vs. lawyer" question, attorney is really just another word for agent. If you have "power of attorney," you're authorized to act in the place of another, regardless of whether you're a lawyer. When you're an "attorney at law," you're authorized to act for someone on legal matters.

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. ;)
4.24.2009 9:15am
Ken Arromdee:
Really? A private attorney repping a client is "inherently a government related function?" Even if it's purely transactional, no one stepping into Court?

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.
4.24.2009 9:27am
Oren:

A private attorney repping a client is "inherently a government related function?" Even if it's purely transactional, no one stepping into Court?

The ultimate source for the binding power of a contractual agreement is enforcement by a court.


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.

I would expand "go to court" to include drafting of documents that might, at some point, require a court for their effect.



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.

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.
4.24.2009 10:32am
Connecticut Lawyer:
full disclosure: I am lawyer married to a (liensed) interior designer.

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.
4.24.2009 10:34am
Spartacus (www):
Before this, unlicensed Texas "interior designers" had to refer to themselves as "interior decorators." Note that Texas does still license "comsetologists."

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.
4.24.2009 10:58am
Jay Bilas:
4.24.2009 11:01am
Oren:

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.


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...
4.24.2009 11:25am
rosetta's stones:

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.
4.24.2009 11:38am
trad and anon (mail):
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.

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.
4.24.2009 11:42am
Oren:
RS, My point was no charge is the arguments you present are not frivolous. There's no sense penalizing an attorney because he took a case requiring a lot of witness / cross/ etc ...
4.24.2009 11:42am
Nibbles:
The discussion here just shows how stupid this ruling is. Most of you are very confused about the difference between interior design and interior decoration.

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.
4.24.2009 11:57am
DarArch (mail):
I'm surprised a licensed architect hasn't piped up yet, but here's my take. (Can't legally call myself an architect yet; I'm in the middle of my NINE EXAM professional licensing process, having just completed my 3-year mandatory internship, and 7 years of required education.)

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.
4.24.2009 11:59am
Spartacus (www):
I suppose, in lieu of bar certification, you could make attorneys post a bond paying for the court's time...

I believe this has been done in certain repeat pro se prisoner litigant cases, like the notorious Motion to Kiss my Ass
4.24.2009 12:01pm
rosetta's stones:
Spartacus, that court is simply out of control... they dismissed that motion with prejudice!
4.24.2009 12:12pm
Oren:

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!


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.

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.
4.24.2009 12:13pm
Bill Dyer (mail) (www):
You might have mentioned in your post, Professor Volokh, that this very interesting -- and pro-First Amendment -- opinion was written by Chief Judge Edith Jones, one of the left's favorite targets when they're listing supposedly anti-civil liberties appointees of Republican presidents.
4.24.2009 12:17pm
rosetta's stones:
Here's what the court told the kiss my ass guy:


This Court is quite sure that, if the villagers who heard the boy cry "wolf" one time too many had some form of reassurance that the boy's last cry was sincere, they would *1401. have responded appropriately and he would be alive instead of being dinner for the ravenous canine. If anything, that story teaches that repetitious tomfoolery can result in disaster for the knave. This Court will not turn a deaf ear to Plaintiff's future cries. However, it will require Plaintiff to structure his pleas for help in a more sincere manner so that the energies of the villagers are not wasted on the repeated runs up the grassy hill atop which the mischievous boy sits laughing.

SO ORDERED.


That's a nice piece of work there, and they still left the door open for the guy.
4.24.2009 12:24pm
CJColucci:
There may be good reasons for the state to set requirements for the practice of interior design, making a license a requirement of practising interior design, and then forbidding anyone else from calling himself or herself an "interior designer." (There also may not be good reasons for any of that, but that's not the issue here.) But as long as the state leaves unlicensed people free to do what the world recognizes as "interior design," there is no good reason for preventing people who are doing it to identify themselves in a way the world recognizes.
4.24.2009 12:57pm
Jim Rose (mail) (www):
How about they call themselves interior desecrators ?
4.24.2009 4:18pm
unhyphenatedconservative (mail):
Oren, if your argument is that agreements being enforced by the Court makes the drafters governmental or quasi-governmental actors, then anything we do as private citizens could hold that same logic.

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
4.24.2009 5:02pm
neurodoc:
...Jack Ford...
Didn't he practice law for awhile before getting into the TV commentary stuff? Are you sure he is not licensed in any jurisdiction?

And kenvee, thanks for your response regarding "lawyer" vs "attorney." You have convinced me that there is no real difference.
4.24.2009 5:33pm
ReaderY:
The issue is not what we think government should do. The issue is whether what we think government should do will matter. If judges take away all our power to have our own say by deciding everything themselves based only on what they think government should do, than our power to control our own lives is radically diminished.

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.
4.24.2009 6:15pm
Anon424:
A fairer way of determining who is allowed to practice law would be to allow anybody who passed the bar exam to practice. This would eliminate the need to go to law school and would eliminate people being judged morally unfit to practice, as many states have the option of doing.
4.24.2009 7:02pm
Larry Fafarman (mail) (www):

A lot of commenters here (though not all) are missing the following very important point stated in the decision's opinion (shown in bold) --

In this commercial speech case, the appellants would prevent Texas from enforcing its interior design "titling" law, which prohibits unlicensed practitioners from using the term "interior designer" or "interior design" to describe their trade and the services they provide but does not limit who may practice interior design. (emphasis added)

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.
4.25.2009 4:02am
Larry Fafarman (mail) (www):
In my previous comment, I said,
This differs from licensure laws where unlicensed individuals are prohibited from either using the occupational title or practicing the occupation.

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.
4.25.2009 12:39pm

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