Wednesdays on the Steps – Scalia: where is the prohibition of stupid laws in the Constitution?

With the economy in its current state many of our practices may have to become familiar with the Bankruptcy Abuse Prevention and Consumer Protection Act. One provision of the act prohibits lawyers from counseling clients to incur more debt. This statute is being addressed by the Supreme Court which must weigh whether or not it interferes with an attorney's First Amendment rights.

A small Minnesota law firm was at the court Tuesday, asking the justices to declare unconstitutional a 2005 federal law that was meant to prevent bankruptcy abuse. One of its provisions forbids lawyers from advising clients to "incur more debt" if the clients are contemplating filing for bankruptcy.

For one thing, the firm's lawyer G. Eric Brunstad Jr. told the justices, that might sometimes be a legitimate thing to do. But more important, he said, the law interferes with the First Amendment and a lawyer's responsibility to give "unfettered, candid advice."

The law "proscribes truthful information about entirely lawful activity, it whipsaws the attorneys who are trying to apply it, it creates an impossible situation for them, and it harms the client," said Brunstad, who is representing protesting lawyers in the Edina, Minn., firm of Milavetz, Gallop & Milavetz.

To which Justice Antonin Scalia replied: So?

"That's why it's a stupid law," Scalia said. But before Brunstad could make another point, he added: "Now, where is the prohibition of stupid laws in the Constitution?"

See the full article here. Lawyers aren't the only one's concerned about their First Amendment rights; check out this lawsuit filed by yoga instructors yesterday.