The Wild West of Self Regulation

Quenby Wilcox Having It All


They say that power corrupts, and absolute power corrupts absolutely. -- Unfortunately, this appears to be the state of affairs in countries across the globe – with all too little being done to address the underlying problems.

My blog, Empowering Women to Empower Themselves, brought up the issue of self-regulation (or rather the lack thereof) in the judiciary. The failure of 'self-regulation' in the legal profession, for decades on end, has created a 'Wild West' in the courts, where it is the outlaws and bandits who 'rule the roost'; and where women and children are nothing more than commodities, sold to the highest bidder.

This situation continues to thrive and flourish, for the simple reason that government officials are so busy promoting 'let them eat cake' rhetoric and propaganda – which they actually ended up believing – that they have little time left (outside a meeting and speech, or two). The situation is so dire and dramatic, that as Karen Winner in Divorced from Justice points out, it has become a "danger [to] our democratic processes."

The Journal of the Legal Profession in Lawyer's Duty to Report Ethical Violations states that "[t]he legal profession is perhaps the last remaining profession governed exclusively by a system of self-regulation. In practice, however, this concept of lawyers regulating other lawyers is probably more theoretical than factual. In 1970, the Special Committee on Evaluation of Disciplinary Enforcement issued the Clark Report outlining the state of the legal profession at that time. The Committee found that, more often than not, lawyers failed to report violations of the Code of Professional Responsibility committed by other lawyers to the appropriate disciplinary authorities and even when such violations were reported, the disciplinary agencies would not take action against those attorneys with whom they may be acquainted". After three years of studying lawyer discipline throughout the country, this Committee must report the existence of a scandalous situation that requires the immediate attention of the profession..."

Studies since the Clark report have shown little real improvement to the situation – leaving the legal profession after decades and decades of no transparency and accountability in truly dire straits. The situation for women has been further complicated by the backlash to feminism, which has dominated the political scene since the '80s. One of the consequences of the backlash, has been the accessibility of policy-makers and their acquiescence to demands of patriarchal rights groups over the years, which in turn has promoted favoritism for fathers in the courts. The effects that these supremacy groups have made on US policy is particular evident in regards to US Department of State's policies on international child abduction. Not only are the actions, and omissions of actions, of State Department officials discriminatory in their own regard, but their attitudes are consistent with the gender-bias attitudes found in family courts – see Family Courts in Crisis Newsletter, Oct., 2013.

As Phyliss Chesler notes in Mothers on Trial, "Although mothers still received no wages for their work at home and far less than equal pay for work outside the home, and although fathers had yet to assume an equal share of home and child care, divorce fathers began to campaign for equal rights to sole custody, alimony, and child-support and for mandatory joint custody.

Fathers' rights activists – both men and women – picketed my lectures, threatened lawsuits, and shouted at me on television. "Admit it. Ex-wives destroy men economically. They deprive fathers of visitation and brainwash the children against them. Fathers should have rights to alimony and child support. Joint custody should be mandatory. We've already convinced legislators, lawyers, judges, and social workers, psychiatrists and journalist to see it our way." (1987)

Unfortunately, the campaigns from the father's supremacy groups over the past decades have not been effectively counter-attacked by the women's rights, or domestic violence groups. The lack of any resistance by interest groups, has left an "open door policy" to greed, corruption, negligence, misconduct, stupidity...The list of grievance is long and wide.

However, as Susan Faludi explains in Backlash, "The backlash is not a conspiracy, with a council dispatching agents from some central control room, nor are the people who serve its ends often aware of their role; some even consider themselves feminists. For the most part, its workings are encoded and internalized, diffuse and chameleonic... Although the backlash is not an organized movement, that doesn't make it any less destructive. In fact, the lack of orchestration, the absence of a single string-puller, only makes it harder to see – and perhaps more effective. A backlash against women's rights succeeds to the degree that it appears not to be political, that it appears not to be a struggle at all."

While governments are continually denying any responsibility for the discrimination against women in their courts, or the damage and havoc it is creating, Rebecca Cook in Gender-stereotyping explains the State's obligation to end gender-stereotyping in its courts. "State Parties are as responsible under international law for human rights violations committed by their courts as for the misconduct of other branches of government. Judges are obligated to implement international human rights law, even when they enjoy personal immunity from liability within certain national legal systems. Court decisions can be a means of perpetuating gender stereotyping. Such decisions not only deny the rights of the individual woman who is before the court, but also degrade similarly situated women by perpetuating wrongful gender stereotypes of the subgroup of women to which they belong. Stereotypes of this nature this create individual and collective harm and defeat the judicial commitment to justice."

So, the legal profession, even if under its own volition fails to argue for, and implement, gender-equality laws in the courts, the State has an obligation to assure that they take 'positive action' in reversing gender-stereotyping and discrimination in the courts. The most direct and effective way of "taking positive action" is by thoroughly investigating allegations of misconduct by judicial actors, and strictly sanctioning any action, or omission of actions, that results in discrimination against women.

Bar and Judge associations have an important role in assuring that States fulfill their international obligations. And, it is high time that they fulfill that role, and be held accountable when they fail to do so.