Classical liberals and libertarians tend to hold a dimmer view of occupational licensing laws than the general public. Do we really need official state certifications standing as barriers to so many potentially productive careers? George Will once described a particularly heartbreaking example the effects of such licensing had on a woman named Sandy Meadows:
Meadows was a Baton Rouge widow who had little education and no resources but was skillful at creating flower arrangements, which a grocery store hired her to do. Then Louisiana’s Horticulture Commission pounced.
It threatened to close the store as punishment for hiring an unlicensed flower arranger. Meadows failed to get a license, which required a written test and the making of four flower arrangements in four hours, arrangements judged by licensed florists functioning as gatekeepers to their own profession, restricting the entry of competitors. Meadows, denied reentry into the profession from which the government had expelled her, died in poverty, but Louisianans were protected by their government from the menace of unlicensed flower arrangers.
But maybe I’m making things too easy on myself with this example? I mean, maybe it should be okay for people to arrange and sell flowers to willing buyers without anyone being branded a criminal in the process, but how far can we take that lesson? Surely, you ask, I wouldn’t go so far as to suggest people be allowed to practice law without proper certification?
I’m glad you asked, because yes I would! And a recent article in Slate magazine (very far from a bastion of free market ideology, to say the least) makes several excellent points about why. The authors start off by noting how legal assistance is, to use a technical phrase, absurdly expensive. They point out a key reason for this is “restrictive rules governing the provision of legal services.” As they put it:
Sweeping rules in almost every state give lawyers a powerful monopoly by mandating that only lawyers can do legal work or own law firms. These rules ostensibly protect consumers by ensuring a lawyer exercises independent judgment, untainted by commercial considerations. But like other restraints on trade, they also predictably constrain the supply of legal help, limit outside investment in law firms, shut out non-lawyer expertise, and drive up the cost of services. Innovative, lower-cost delivery models, whether via nurse-practitioner-like “paraprofessionals” or software, are literally forbidden.
But perhaps that’s a necessary cost? After all, nobody would be crazy enough to cut back on these rules and let anyone less than full fledged lawyers practice law, would they? Well, it turns out, two states have done just that. The authors of this article seem genuinely puzzled that the states that have loosened these regulations “are an unlikely red-and-purple-state duo: Utah and Arizona.” They can’t quite understand why progressive blue states would side with wealthy law firms, to the detriment of poor people, while right-leaning states are making services more available to the poor instead of protecting wealthy interests. And the reforms really do seem to be working as hoped:
When first announced, these bold reforms drew criticism from both knee-jerk protectionists and good-faith skeptics worried about consumer harm. But the returns, so far, are quite promising…Perhaps most important of all, the reforms do not appear to pose a risk of consumer harm. Data reported by Utah and Arizona indicate that newly authorized entities do not draw a higher number of consumer complaints as compared to regular lawyers.
Their article focuses on regulations restricting the practice of law, but the lesson behind it has much wider implications. Towards the end, they make the following observation:
Moreover, it is important when evaluating outcomes to recognize that the choice for many Americans is not between a “real” lawyer and some kind of lawyer lite. It is between some measure of professional assistance and no help at all.
Indeed. But this lesson goes well beyond lawyers.
It applies to minimum wage laws. For many Americans, the choice isn’t between a low paying job and a high paying job. It’s between a low paying job and no job at all.
It applies to price controls. For many Americans the choice isn’t between paying a high price for some good or paying a low price. It’s between paying a high cost for that good, or not being able to acquire it at any price.
It applies to regulations requiring dwellings to be a minimum size. For many Americans, the choice isn’t between a tiny dwelling or a spacious one. It’s between a tiny dwelling and having nowhere to live.
Anytime you take an option away, for some people, it will have been the best option they had available to them. Take that choice away, and they don’t substitute it with whatever you thought was better for them. It just leaves them with nothing. Would-be social reformers would do well to ponder Thomas Sowell’s words in his magnificent book Knowledge and Decisions:
Freedom is not simply the right of intellectuals to circulate their merchandise. It is, above all, the right of ordinary people to find elbow room for themselves and a refuge from the rampaging presumptions of their “betters.”
Kevin Corcoran is a Marine Corps veteran and a consultant in healthcare economics and analytics and holds a Bachelor of Science in Economics from George Mason University.
READER COMMENTS
David Henderson
Jan 2 2023 at 10:39am
Very nice post.
JdL
Jan 3 2023 at 6:23am
Well stated. You focus mainly on the practical effects of greater freedom. In my mind, even if a plausible case could be made that getting rid of licensing laws causes real societal harms, they should still be jettisoned, just because people are rightfully free, and no one has a right to impose arbitrary rules on how they may interact with each other. It is legitimate, of course, for government (or someone) to intervene if force or fraud are engaged in, but otherwise the government should do the one thing it can’t stand doing: nothing.
JK Brown
Jan 3 2023 at 9:09pm
In the wake of this last pandemic, it is worth considering impacts of the 14th century Black Death in England on customs that lasted well into the 1980s America. That is the 1349 Statute of Laborers law which capped wages for workers which were increasing rapidly due to the population decline. It also required the acceptance of work offered and at harvest even non-noble women were required to work in the fields. As expected subsequent modifications added the mayors fixing the prices of necessities as they fixed the wages.
This might be an interesting medieval aside except that the Statute of Laborers (and intervening mods) weren’t repealed in England until 1869. Although it is considered the wage caps were mooted by population recovery by the time of Elizabeth I.
But consider this modification that gave us the now custom of letters of recommendation when changing employers.
And we should remember that Apple, Google and a few others in Silicon Valley were caught in an agreement not to hire each others “servants” without the permission of their current employer.
All of human history is a struggle against those who seek to control the labor of others and to infringe on their liberty to keep and use what they earn. And yet it was just more than a century ago, that the right to work for how much pay and how many hours was considered a fundamental liberty by Americans. At least for men, Mueller v Oregon (1907) was a landmark labor decision concerning the hours washerwomen could work and essentially place women as “wards of the state”. Sadly, men are no also considered wards of the state.
David Seltzer
Jan 4 2023 at 5:57pm
Kevin, Hospital Corpsman attend “A” school for 19 weeks. E6 and above attend “C” school for one year. “C” training is rigorous…tantamount to two years of medical school. Their skills are as effective in Vietnam as in Coronado. No license is required from either location or any military location where they are assigned. In country, Corpsman with years of triage experience have guided young O2 and O3 physicians through some of the most difficult surgeries. In civilian life things change. Maintaining a national certification in the service, veteran Corpsmen can transition easily to a civilian career, Some states accept national certification. Others, require a license.
nobody.really
Jan 6 2023 at 2:53am
1: I think of law licenses as akin to driver’s licenses: The alleged purpose is to document that a person has demonstrated some minimum competence–but the REAL purpose is to have a practical way to punish bad actors through revocation.
We face an externality problem. My understanding is that most complaints against lawyers come from dissatisfied clients. So if a lawyer serves her clients zealously–say, by lying, cheating, and stealing on the client’s behalf–then that lawyer may not draw a lot of complaints from her clients. But she’ll cause a lot of needless delay and expense to everyone else.
Or consider trusts and estates: Frequently a lawyer is long dead before anyone learns that the documents he drafted were garbage. Naturally no one files complaints against a dead lawyer (although I’m sure there’s a joke about that somewhere), but that doesn’t mean that the lawyer’s incompetence didn’t cause harm.
Now, perhaps there are cheaper ways to police bad lawyers than to require licensure for the entire profession. Maybe courts and ethics boards could simply issue injunctions/restraining orders against people who have demonstrated their incompetence/maleficence. I will be interested to see how Arizona and Utah manage this problem.
2: For what it’s worth, Adam Smith supported professional licensure.
Smith believed that education was one of the primary social tools against the threat of “enthusiasm and superstition” a/k/a religion. But Smith concluded that putting teachers on a salary would not provide them with sufficient incentive to keep them diligent in teaching. Accordingly, Smith recommended that government promote –
Adam Smith, Wealth of Nations, Chap. I, Pt. II, Art. III. (1776) (emphasis added).
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