Philosophy, Law and Politics

Is It Becoming a Meritocracy?

I attended the annual CBA-Roundtable Minority Summer Law Clerk Reception of the Cincinnati Bar Association, held this year in the Cincinnati headquarters of historic Taft Stettinius & Hollister LLP. Taft made a stupendous effort in welcoming law students far beyond the bounds of the traditional path of the “stocks and bonds” law firm. The large gathering included prominent Cincinnati attorneys and governing officials whose careers began much before the era of “discussions of Diversity and Inclusion.” Several first in the family college graduates and law students, whose summer private sector position was a continuation of their academic year law clerkship, expressed true and sincere appreciation for participation early in their careers. Many years ago, fear and resentment would have been evident, but less so in the era of the Clintons and the Obamas. Attorneys who are graduates of elite law schools are now a known entity.

My personal view toward issues of diversity and inclusion, as well as to most all subjects, does not go beyond one of academic diplomacy, based upon merit. I rarely, if ever, form an opinion which I would sternly support against another. Perhaps, doing so would be necessary if the law in Cincinnati and Ohio, state and federal, were more competitive as to client interests. It seems, rather, you may draft beyond reasonably anticipated future challenges.

Fundamentally, the issue of diversity and inclusion in the Cincinnati remains a question, even in light of the true expression of grace at this year’s Minority Law Clerk Reception, of revisionism in the interpretation of local history. Diversity and inclusion are, together, of the many questions asking the manner in which Ohio, and, specifically, Cincinnati, reach the accomplishments reached long ago by many cities and states in America. In some respect, modern issues of inclusive and diverse public and private policies require historical due diligence. This diligence would ask as to the possibly causative and still existing precursors to our issues of, as is our lengthy litany: “affirmative action;” “ending separate-but-equal or defacto segregation;” “integration;” “lack of discrimination;” and “transcending segregation.”

As a Sole Practitioner admitted into practice in the States of Ohio and New York, I have returned to my primary legal subject of administrative law, state and federal, after years in researching and writing on topics of federal litigation. Before, I was not permitted to present arguments found in the judicial opinions of courts beyond the Sixth Circuit, nor in scholarly secondary legal sources.

In solo general private practice, I have given comment on a variety of proposed Ohio Administrative Code provisions, as well as proposed regulations of the U.S. Securities and Exchange Commission and the U.S. Department Health and Human Services. With interpretative reliance upon the founding principles of American government and traditional legal methods of research and argument, one may readily suggest improvements in our governing law.

One belief I do hold is that, in America, private legal practice, even mine, is the source of American common law. For, our common law is actualized from custom unto law by courts and commercial contractual dealings.

From this, questions arise as to how we might garner acceptance of all law school graduates, equally, by all employers. Have we asked how we do this without great disregard for personhood as to any? For, justice is not thereby accomplished. In asking that the least graduated are accepted first by the traditionally reclusive within the legal community, as is being done in both the private and public legal sectors, how will accreditation bullying be dissuaded if it is accorded profit and merit by being paid first?

In the last 25 years or so, Cincinnati has dramatically experienced major economic growth and prosperity. The local universities are more noteworthy than ever before for notable faculty and truly more expansive research programs and centers. Yet, the law in Ohio, has not similarly kept pace.

The Ohio Administrative Procedure Act, in its present form, dates from the mid-1950’s. The Ohio Revised Code has not been revised to encourage economic advance, no less to permit the successful management and retention of the material success Ohio, and Cincinnati, have enjoyed. Most developing cities and states have managed both law and money.

Cincinnati does not live under the aura of national institutions of higher education that benefit Ohio’s northern cities. And, Ohio law has also not developed as has our international commerce has developed. To an even greater extent, the agenda of pending maters before the weekly meeting of the Ohio Joint Committee on Agency Rule Review, indicates that Ohio’s administrative law is scarcely worthy of being deemed “final agency action” in 2018 by state and or federal standards.

Relative to the laws written by attorneys in the State of New York and within the federal government, the laws of Ohio are truly a cruelty. Even if the cruelty does not result from enforcement of obsolete legal standards, the cruelty occurs when those who have chosen to reside and make commitments to neighbors and institutions are then finding themselves under an anvil of suppressive statutes and administrative rules lacking the modern reasoning and logic of the material goods, services and technologies imported into the State of Ohio in interstate commerce to which they commit their funds. Funds and services these arcane statutes profess to govern.

If our laws lack clarity and reasoning, no one can self-govern, regardless of partisanship or opinion. How do clients, attorneys and law students know the source of anxiety in professionalism and in consummating legal services? Without, a best-efforts approach to legal services and best-efforts selection of attorneys and law clerks how will any meritocracy ever be accepted or regarded? To what does our democracy then devolve?

As citizens, as well as attorneys, we have no publicly shared actualizing dialectic, Hegelian or otherwise. Our American government and economy, private and public, are defined as a natural, meritocratic system of profit-based competition, permitting the creation and ownership of value with respect for liberty and privacy.

In Cincinnati, the concern is that the majority of residents do not inform themselves and do not form opinions. They seem mentally transient, as I seem to believe I have heard others say. They seem without a sense of Hohfeldian right, or even privilege, to mentally consider information readily available to the public, no less form an opinion. There is a sense of self-imposed mental repression.

Perhaps the two major political parties gave for too long and without due meritocratic review opportunity to hold government office to those from a variety of social strata not ever before officeholders in America. These are those in the nation who were not among those graduated from elite academic American institutions of higher education. These are those not from the moneyed classes.

Yet, delegating the power to draft and or effectuate legislation and imprison citizens to those for centuries deemed scarcely qualified to hold office is neither democracy nor justice unless the officials demonstrate equal or superior merit. These not yet officeholders were long denied candidacy for office, in part, because they were not of the rich and powerful aristocracy in America, among other reasons. This is the basis for the argument that the absence of participation as representatives was unjust. It is not an expression of unfairness that one is denied nomination because another candidate is of a greater college board ranking than thou. Such a denial is not violative of the thought of Edmund Burke, nor Jack Randolph, nor T.J. Such a denial or exclusion similarly comports with meritocratic selection of attorneys and legal arguments.

My thoughts on “what is wrong” in Cincinnati and Ohio, as the once Chair of Democrat Ward 7 John Albert “Socko” Wiethe, as the immediate predecessor to my father Charles Nuckolls, as Chair, used to say, are derived from the phrase: “Let history be our guide.”

Lori Gayle Nuckolls, Esq.

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