Different view of freedom

J. Clark Kelso characterizes three big state Supreme Court rulings as protecting freedom, freedom, freedom (September). That’s one way of looking at it.

Freedom to marry: OK I will grant him that.

But what he calls “freedom to work” is a violation of Article I, Section 10 — the Contracts Clause. Apparently in California, an employer and employee (or entrepreneur and independent contractor) are not free to enter into an agreement whereby the employer teaches the employee all about the business and pays good money at the same time, in exchange for a promise that the employee will — for a reasonable time within a reasonable distance — not go into direct competition against the hand that fed him. This is just like California, to deprive people of the autonomy of contract, i.e., of their freedom. We did not become the greatest economy in world history by depriving adults of the freedom to bind themselves to their promises, but apparently it’s time to fix what ain’t broke.

And what he calls “freedom of speech at the mall” is just another attack on private property. A shopping mall is privately owned and not “equivalent” to government property; the owners who invested millions of dollars in bringing commerce and jobs to the area should not lose their freedoms under the guise of “freedom to trespass.” California’s right to free speech may be stronger than that guaranteed by the U.S. Constitution, but its right to hold and control private property cannot be weaker than the federal right.

Kurtiss Jacobs
Concord

Political victories

J. Clark Kelso’s definition of “freedom” is akin to that of MTV’s — a narcissistic demand for “free stuff,” as a matter of right and a childish revolt against convention for the hell of it.

To say that everyone has a “right” to receive a marriage license is akin to saying that the homeless have a “right” to encamp in Kelso’s spare bedroom and raid his refrigerator as a means of effectuating Roosevelt’s goal of freedom from want.

The sum total of “freedom” was certainly not enhanced through any of the examples that Kelso mentions, as in each instance, the losing party sacrificed its own freedom to the winning party. These are all examples of competing factional interests taking their fight to the courts — and nothing more than that. Rather than simply assert that his factions won their respective fights, Kelso decorates what amounts to a series of political victories with the pretentious claim that these were struggles for “freedom.”

Mark Siegel
Fresno

Principled approach?

The State Bar of California is now asserting my privacy rights against disclosure to a researcher, Richard Sander, who wants exam data. Yet, the article in the September 2008 issue states “the bar released student data in 1992 to the Law School Admission Council after obtaining authorization from the Supreme Court.” The obvious question is, why did the bar seek such authorization from the Supreme Court in the first instance? Indeed, the bar opposes Professor Sander’s suit claiming, among other things that “applicants provided information to the bar with assurances that it would be . . . used only to ensure the exam’s testing validity.”

Are we to suppose the release of student data to the Law School Admission Council was for the purpose of ensuring the exam’s testing validity? Somehow, the name of that entity causes me to doubt it’s their purpose to ensure the exam’s testing validity. 

If protecting the applicants’ personal and private information is the underlying principle that is at stake here then I cannot discern how the bar’s actions comport with a principled approach.

Ron Chen
Longmont, Colo.

• The LSAC sought bar exam data (not gender or ethnic information) and obtained releases directly from applicants after the Supreme Court encouraged the bar to cooperate with the LSAC.

Kudos to Bleich

Jeff Bleich’s piece in the September Bar Journal was excellent. It was inspiring and beautifully written.

Donna Ferebee
Sacramento

Victim name released

I was disappointed to see that the California Bar Journal published the victim’s name relating to the conviction and subsequent suspension of David Jones (#166794). The victim had requested that her name not be a matter of public record and pursuant to a court order the victim’s name was sealed. 

The California Bar Journal was aware of this sealing order and used other sources (“woman identified elsewhere”) to establish the victim’s identity and then published it.

In the same issue that the Bar Journal releases confidential victim information it reports how our State Bar is protecting the “personal and private information of bar applicants.” It is a shame that the California Bar Journal does not feel that same obligation to protect a victim’s identity. I expect better from my California State Bar Journal. 

Robert Morgester
Deputy Attorney General
Sacramento

• Through inadvertence, the Bar Journal was not aware of the sealing order.