Law Commons^™

What Occupational Licensing Requirements Protect The Public? Evidence From The Legal Profession, Kyle Rozema

Grantee Research

I investigate the types of occupational licensing requirements that protect the public. To do so, I employ professional discipline as a measure of potential harm and exploit considerable state-level variation in distinctive licensing requirements for American lawyers. Using novel data from 34 states between 1984 and 2019, I find evidence suggesting that the only requirements that reduce harm are those that restrict entry for certain high-risk individuals. Even with these requirements, however, it takes over a decade following licensing for any noticeable reduction in harm to materialize, and the cumulative impact on harm reduction is small in absolute terms.

Competition Policy For Labour Markets, Herbert J. Hovenkamp

All Faculty Scholarship

Competition law in many jurisdictions defines its consumer welfare goal in terms of low consumer prices. For example, mergers are challenged when they threaten to cause a price increase from reduced competition in the post-merger market. While the consumer welfare principle is under attack in some circles, it remains the most widely expressed goal of antitrust policy.

We would do better, however, to define consumer welfare in terms of output rather than price. Competition policy should strive to facilitate the highest output in any market that is consistent with sustainable competition. That goal is in most ways the same as …

Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn

All Faculty Scholarship

Public choice theory has long been the dominant lens through which economists and other scholars have viewed occupational licensing. According to the public choice account, practitioners favor licensing because they want to reduce competition and drive up their own wages. This essay argues that the public choice account has been overstated, and that it ironically has served to distract from some of the most important harms of licensing, as well as from potential solutions. We emphasize three specific drawbacks of this account. First, it is more dismissive of legitimate threats to public health and safety than the research warrants. Second, …

Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler

All Faculty Scholarship

Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.

Still, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing …

Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler

Articles

No abstract provided.

Occupational Licensing And The Limits Of Public Choice Theory, Ryan Nunn, Gabriel Scheffler

Articles

No abstract provided.

The Gendered Burdens Of Conviction And Collateral Consequences On Employment, Joni Hersch, Erin E. Meyers

Vanderbilt Law School Faculty Publications

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living. This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men. This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record. In addition, women have access to far fewer vocational programs while incarcerated. Further exacerbating this burden is that …

Razing The Patent Bar, William Hubbard

All Faculty Scholarship

Innovation is vital to economic prosperity, and lawmakers consequently strive to craft patent laws that efficiently promote the discovery and commercialization of new inventions. Commentators have long recognized that legal fees are a significant cost affecting innovation, but remarkably a crucial driver of these costs has largely escaped scrutiny: the Patent Bar. Every year innovators spend billions of dollars on legalfees for representation in the U.S. Patent and Trademark Office ("USPTO"), where inventors apply for patents and potential infringers seek to invalidate issued patents. Supply in this essential legal services market, however, is sharply limited because patent law requires innovators …

Foxes At The Henhouse: Occupational Licensing Boards Up Close, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

The dark side of occupational licensing-its tendency to raise prices to consumers with dubious effects on service quality, its enormous payout to licensees, and its ability to shut many willing workers out of the workforce-has begun to receive significant attention. But little has been said about the legal institutions that create and administer this web of professional entry and practice rules. State-level licensing boards regulate nearly one-third of American workers, yet, until now, there has been no systematic attempt to understand who serves on these boards and how they operate. This Article undertakes an ambitious and comprehensive study of all …

Antitrust Scrutiny For The Occupations: "North Carolina Dental" And Its Impact On U.S. Licensing Boards, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

The American system of occupational licensing is under attack. The current regime – which allows for almost total self-regulation – has weathered sustained criticism from consumer advocate groups, academics, politicians, and even the White House itself. But the recent U.S. Supreme Court opinion in North Carolina Board of Dental Examiners v. FTC,1 portends a sea change in how almost a third of American workers are regulated. The case has made it possible for aggrieved individuals and government enforcers to bring suits against most state licensing boards, challenging their restrictions as violating federal competition law. The case has prompted two responses: …

The Freedom To Pursue A Common Calling: Applying Intermediate Scrutiny To Occupational Licensing Statutes (Note), Alexandra L. Klein

Faculty Articles

After the devastation of Hurricane Katrina, the monks at St. Joseph Abbey in Louisiana sought a new source of income. They began producing simple wooden coffins priced at much lower rates than caskets sold in funeral homes. After the Abbey had made a large investment in its business, St. Joseph Woodworks, the Louisiana State Board of Embalmers and Funeral Directors ordered it to close. Although the monks did not provide funeral or embalming services, a Louisiana statute regulating the funeral industry prohibited the monks from selling coffins.

Under the statute, "funeral directing" included "any service whatsoever connected with... the purchase …

Licensing Health Care Professionals, State Action And Antitrust Policy, Roger D. Blair, Christine Piette Durrance

UF Law Faculty Publications

In this Essay, we raise some economic concerns about the wisdom of conferring antitrust immunity on professional licensing boards, which are often comprised of members of the profession and therefore apt to be motivated by self-interest rather than the public interest. In Part II, we examine the political economy of special interest legislation, which suggests that little public good results from replacing competitive market forces with self-regulation. In Part III, we employ a basic economic model to generate predictions of the economic effects of professional licensing. Part IV provides a survey of the empirical research in this area, which confirms …

Cartels By Another Name: Should Licensed Occupations Face Antitrust Scrutiny?, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

It has been over a hundred years since George Bernard Shaw wrote that “[a]ll professions are a conspiracy against the laity.” Since then, the number of occupations and the percentage of workers subject to occupational licensing have exploded; nearly one-third of the U.S. workforce is now licensed, up from five percent in the 1950s. Through occupational licensing boards, states endow cosmetologists, veterinary doctors, medical doctors, and florists with the authority to decide who may practice their art. It cannot surprise when licensing boards comprised of competitors regulate in ways designed to raise their profits. The result for consumers is higher …

The Constitution And Occupational Licensing In Massachusetts, Henry Paul Monaghan

Faculty Scholarship

Judges have long recognized that the right to earn a living in any of the common occupations is among those fundamental interests which a democratic society should protect. Justice Bradley characterized it as an "inalienable right," and Justice Douglas asserted that it is "the most precious liberty that man possesses." Indeed, Mr. Justice Field viewed protection of this right as one of the distinguishing features of our republican institutions. That the right to earn a living is generally within the protective mantle of the Fourteenth Amendment is now long settled constitutional doctrine. Writing for a unanimous court in 1915, Mr. …