office interior designer in noida

we're very excited and, and honored to haveuh the acting chairman of the federal trade commission here with us today. she's a good friend to the organization, alsoa good personal friend. i've known her for years. she served at the commission for 11 years,that was sort of mentioned or alluded, alluded to by senator cruz, and became a commissionerin 2012 before being designated to serve in her current position in january of this year. chairman olhausen is an expert in privacyand trade law and before working for the commission she was an adjunct faculty at antonin scalialaw school at george mason university where

she taught about privacy and unfair tradepractices and wrote a number of articles on antitrust uh competition law. there she was also senior editor of the antitrustlaw journal and a member of the aba's task force on competition and public policy. she later worked at wilkinson barker knauerthe law firm here in washington, d.c. where she became partner specializing in ftc issues. i mentioned at the outset she's a great friendof the organization, she's also a good personal friend. please join me in welcoming acting chairmanof the ftc commission, maureen ohlhausen.

(applause) uh well thank you to dean and to the federalistsociety for hosting me today. i'm thrilled to be here with so many friendsand colleagues uh who've worked on these issues with me over the years and who i know caredeeply about them as i do. um, i'm also so pleased to follow my formerboss and old friend senator ted cruz. you can see what an inspiring boss he musthave been uh when he was leading the ftc's office of policy planning. um and i'm really delighted to say that evenall these years later uh, we are both uh continuing to work hard to advance the economic libertyof american people and i'm honored to build

on his thoughtful remarks. i'm also having getting my ... there we go. my little stand on to the, the podium. um so my ongoing fight for economic libertyis fueled by my personal belief in the power and the benefits of free markets. now we sometimes take free markets uh andcompetition for granted. and we treat these institutions as if they'vealways existed. or if they just sprung you know forth fullyformed. uh but these important institutions existonly where individuals are free to exercise

their economic liberties. so, the liberty to own, to exchange, to compete. and the most relevant for today's topic, theliberty to pursue work at a job of one's own choosing. these individual economic liberties exerciseden masse, foster free markets. and the benefits of free markets include innovation. uh new business models. economic opportunity, jobs put simply, andfinancial growth and greater access for consumers to more and better products at lower prices.

and these benefits and more come from freemarkets, and free markets are only possible because of economic liberty. now because i believe economic liberty isso important, indeed fundamental to our american way of life, i've spent much of my careerworking to advance it. and i'm particularly proud of the work, myrole in the work started in 2001 by chairman tim muris as senator cruz mentioned. uh which uh along with our advocacy, we alsoworked to limit antitrust immunity for any competitive private actions under the colorstate authority. uh and that works at the foundation for our,some of our recent successes.

most notably the ftc supreme court victoryin the north carolina dental case. but despite such important court wins, fartoo many job seeking american's still face a sea of government red tape between themand the job that they want to do. and the ftc's mission is to protect consumers. and sometimes as in occupational licensing,that may mean protecting consumers from excessive government regulation. and today i'd like to tell you a little bitmore about how as acting chairman of the ftc i will carry out my commitment to economicliberty with a particular focus today on occupational licensing.

so, the most durable restrictions on competitiontypically flow from government. government over reach diminishes economicopportunities, and such overreach can also happen at the behest of market participants. so, where an innovator needs permission fromthe government to enter a market, i call it the mother may i problem. but there's also a brother may i problem. and that problem occurs when a competitorcontrols market entry, often through some kind of regulatory permission. and in either case, such regulations can endurefor decades.

so, some occupational licensing is essentialto protect our public health and safety, but when abused, unnecessary or excessive licensingthreatens our economic liberty. and the trend here is not good. in the 1950s less than five percent of jobsrequired a license and today nearly 30% of jobs require one. and some studies suggest that the result hasbeen over 250 million fewer jobs and billions of dollars in costs to consumers. and today licensing requirements go far beyonddoctors and nurses and electricians and school bus drivers.

and now they extent to auctioneers, interiordesigners, florists, makeup artists, hair braiders and numerous other occupations. the public safety and health rationale forregulating many of these occupations ranges from the dubious to ridiculous. sumers, consumers can easily evaluate thequality of interior designers, makeup artists, hair braiders, florists and others, and consumersalready do. market dynamics naturally weed out bad serviceproviders without placing consumers in harm’s way. for many other occupations added regulationlimits the number of providers and drives

up prices. and these costs often dwarf any public healthor safety need and ultimately harm consumers by limiting their access to better and newservices. now other evidence suggests that such regulationsare unnecessary or overly strict. so, studies by the institute of justice, i'mdelighted that clark is here today, his organization has done a fantastic job in this space. so ij and other organizations have found thatdifferent states regulate different occupations. so, all states have licensing requirementsfor about 60 occupations such as doctors and school bus drivers and truck drivers.

but more than 1,000 jobs are licensed in onestate, that are licensed in one state remain completely unlicensed in another. and moreover, states impose very differentlicensing requirements such as the number of months of training required, even for theexact same occupation. and this uneven licensing of the same occupationand different requirements for the same license across states strongly suggest that many occupationallicenses don't advance public health safety or other legitimate public health protections. now the growth of unnecessary and over broadoccupational licensing hurts many average americans who want to enter these occupations.

and as senator cruz already mentioned, lowerand middle income americans are especially impacted but as are military families andveterans. for example, because military families movea lot, occupational licensing uh, uh, blocks jobs opportunities for what we call the trailingspouse. the one who goes along with them. and a new state may have additional or differentlicensing requirements that that trailing spouse must fulfill simply, simply to practiceher, his or her profession in that state. and occupational licensing also blocks veteransseeking to return to civilian employment. and these folks deserve better.

so, if such regulations aren't protectingconsumers, why do they exist? so often such regulations reflect regulatorycapture, replacement or over reach. indeed, as in the ftcs north carolina dentalcase, it's often not the state government acting, but self-interested active marketparticipants imposing occupational licensing requirements to prevent competition. now public choice theory recognizes that regulatorsare most likely to grant private uh, excuse, grant private economic gain to special interestswhen the cost of that concentrated benefit can be spread among many consumers. a bunch of consumers paying a little bit umof a extra cost, uh but a concentrated benefit

to the practitioners. and unfortunately, occupational licensingis really the poster child for that uh phenomena. by protecting themselves from competitionincumbents in an industry can often limit choices and raise their prices, gaining atthe expense of everyone else. so, this brother may i problem is preciselywhat i would like to work with interested parties including the states to prevent andeliminate. now often state and local legislators areonly hearing from one side of the store, uh one side of the story, from the party whowill receive the concentrated benefit. and they often don't hear about how such regulationswill impose costs on the very constituents

they wish to protect. and state and local legislators must hearboth sides of the story. so, to be clear, i believe in federalism andthe important principles that embodies. and i am a member of the federalist societyafter all and have been for a long time. if politically accountable state actors clearlyarticulate a policy and decide to displace competition with state regulation and thenactively supervise it if they need to, we at the federal level must and should respectthat decision and their constituents will hold them accountable. often, however, such regulation reflects notthe expressed will of the people through the

political process, but rather regulatory captureby a narrow group of special interests. it often lacks accountability to the state'slegislators and voters and imposes high costs on consumers. and this is especially true when a state delegatesregulatory authority to a licensing board controlled by the profession itself. and studies suggest that in some states marketparticipants control more than 90% of the licensing boards. and when market participants control stateboards that impose regulations on competitors, self-interest may well supersede consumerwelfare.

so, what can the ftc do? a lot, and we're doing it. so, i've created an economic liberty taskforce within the ftc to advance economic liberty with a particular focus on reducing occupationallicensing regulations. and i've been thrilled with the receptionthat this task force has received so far. people are very interested in this and we'veheard, or i've heard, from state legislators, governors, consumers’ organizations, newsoutlets and individuals across the country who are interested in what we're doing andlooking to team up to bring back economic opportunity.

and the task force has already started coordinatingthe use of the ftcs tools to increase economic liberty. so, we have two primary tools, advocacy, andenforcement. senator cruz talked about our advocacy work. so, since the 1970s, the commission has issueshundreds of advocacy comments and amicus briefs to state boards and self-regulative, self-regulatedentities. so as a first step, my economic liberty taskforce has collected the materials on these past advocacy efforts into a special areaof the ftc website focused on economic liberty. and this portal which you all can find atftc.gov/econliberty highlights the ftcs important

work on competition advocacy and occupationallicensing. and it also gathers the many existing ftcresources into a central repository for other stakeholders and it showcases select state-basedoccupational licensing reform efforts. and we're continuing to expand resources atthis site and we welcome your suggestions. so, you can email suggestions to the taskforce at econlibertytaskforce@ftc.gov. now as the next step, the task force is seekinginput from an array of parties and trying to build partnerships. now, fortunately, many people, including stateleaders want to expand economic opportunity. and this is a time of change and many americansare demanding less regulation and more economic

and i hope to create a new level of partnershipwith governors and state ags and state legislative leaders and other state and local official,officials. so, i've got good reason for optimism in developingthese partnerships. and governors and legislators in many statesare already identifying problematic occupational licenses. so earlier, this here is just one example. earlier this year governor pete rickets ofnebraska launched an occupational licensing reform initiative and things are moving prettyquickly there. and in fact, the ftcs office of policy planningjust submitted comments on four nebraska reform

bills. and building on this effort, last week theftc hosted a twitter chat with me and governor rickets office. and i was very heartened by the enthusiasticresponse that we received. so, through partnerships, the task force willcontinue the ftcs efforts to help states include competition analysis when reviewing new andexisting regulations. so, by combining the ftcs expertise and stakeholder'sknowledge and partnership with state actors, i believe we can help improve competition,help americans seeking jobs, allow innovation to flourish, and enhance consumer choice.

now of course in some instances enforcementmay be an appropriate tool, consistent with the supreme court's ruling in the north carolinadental case and other state action cases. but the primary work of the ftcs economicliberty task force will be advocacy and partnership. so, to just to wrap up here and get to ourwonderful panel discussion. the late jack kemp said, "there are no limitsto our future if we don't put limits on our people." limits on economic liberty not only hurt theeconomy and the free market system, they also hurt american consumers and workers in theireveryday lives. and as the country struggles to revitalizeit, economic opportunity for everyone, we

have a unique chance to challenge unnecessaryoccupational licensing. so together with the many excellent reformorganizations and with state and local and federal partners, we can remove longstandingbarriers to economic, uh to competition and therefore expand economic liberty. so, thank you and i look forward to the discussion. so, oops, is this working? the table mic. oh, table mic, excellent thank you. could we get your name tag maureen?

there we go. i think you should know who i, who i am. exactly. excellent. so, to my left is larry spiwack, presidentof the phoenix center for advanced legal & economic policy studies. uh it's a nonprofit uh center that studiesbroad public policy issues related to governance, social and economic conditions, with a particularemphasis on law and economics of the digital age.

to his left is dr. michelle connolly, professorof the pract - uh, eh, of the practice in the economics departments at duke university. i'm not sure i said that right. uh professor connolly's research in teachingfocuses on international trade, telecommunications policy, media policy, education, growth anddevelopment. uh and then last but not least we have clarkneily, uh who joined the institute for justice as a senior attorney in 2000. and actually, it was really um fun clark assenator cruz was talking about the, the casket issue, that's how i first met you right?

so, i helped draft an ftc brief on this ideathat you had to be a funeral director to, to sell caskets. and the people who were defending it saidwell the ftc has this rule. and so, i, we got to draft a brief that saysthat is not what that rule says and that is not what it means. um so each panelist will, will start off uhwith some opening remarks. so, larry? well thank you very much. um it's a delight to be here.

um i was trying to tell my liberal friendsthat i was going to be doing a federal society event and uh, i was trying to describe what,what we do here. and i don't know if you all read the wallstreet journal on friday, it was a lead editorial on uh, judge gorsuch but this quote's justtoo good. quote, (clears throat) excuse me, "you'd thinkthe federalist society is some secret society and dan brown novel. as far as we know their conferences are publicand no torture rituals are involved." am i at the right place? (laughter)

all right, just checking, okay. so, without question and, and i'm so gladthat, that maureen has highlighted this. it's such a big deal for, for the americaneconomy to get it moving and, and sort of the overreach of government and regulation. and without question that occupational licensingis, is just has a huge effect on our economy. even the obama administration, right beforethey left office they, they're council of economic advisors put out a piece said um,roughly one quarter of u.s. workers require occupational licensing. so, this is something that is very much inour economy.

so just to get the discussion started, let'sjust talk about for a moment sort of, what's the rationale for occupational licensing? and i, i thought about it a lot and i cameto the conclusion that it's what i like to call the holiday inn test. what do you mean by the holiday inn test? why you're about to perform brain surgeryon me, are you a doctor? why no, i stayed in a holiday inn express. right? that's the argument, right?

we don't want untrained people doing thingsthat could harm uh, consumers, right? and, and not only that because it is a licenseyou, the, the argument is that if there is some sort of malfeasance that you could thentake that license away and you'll never be able to practice in that field again and bebanished to eternity. so, that, that's the argument in favor ofthat. uh, and obvious examples you know doctor'sand let's face it folks we're all largely lawyers in this room and we all have an occupationallicense. um and you know there's a degree of techniqueand, and skill with that and we're officers of the court.

um however as maureen has pointed out, veryoften the public health and safety rationales or other rationales, i love this line, rangefrom the dubious to the ridiculous. and i, i think that really is true. so, i think when you start talking about occupationallicensing, i mean there's some hard questions involved right? because public safety is, there is some legitimatenut there to do this. um so, so what are we trying to achieve arguablywith occupational licensing? well are we trying to establish some sortof minimum certification? you know right, we all went to law schoolfor three years and took the bar and had to

take professional responsibility exam. um okay well that could be there but is thata government requirement? right and by way of example my wife is inthe makeup industry. uh she's run several counters, she runs theuh, plug the counter, the charlotte tilbury counter over at nordstrom's and tyson's. okay now to be, to get that job to run themakeup counter she had to get certified as a makeup artist because there are certainhealth issues involved with putting makeup on people's faces. but she didn't need a certification.

now if she wanted to be an esthetician whichinvolves quasi medical stuff then she does have to get a license. but you know clearly the market dictated whetheror not you're qualified or not. um if i want to be a mechanic, well i mighthave been you know, grew up on a farm. but you know, you know and i've worked ontractors my whole life and i'm, you know i can rebuild something with you know like awrench and blindfold. okay, i don't need certification but the marketcan determine whether or not you're a good mechanic or not. and you have a reputational aspect in that.

so again, a lot of these issues are you don'tneed that and the market can take care of that assuming that there's no public healthand safety. um, but so where, where, where then is therub? and i think for me a lot of occupational licensing,the reality what's driving this is, is, although i think what maureen raised with the brothermay i is a large degree, but i really think that it comes down to it is just a very convenientsource for local and state governments to extract rents in the form of a, another formof a tax. uh d.c. government tried that a couple yearsago, where in addition to our bar dues we're going to have to a pay a professional feeand it's just very easy just to attach - it's

one thing okay i'm going to pay 25 bucks buti mean i'm reading some of the literature just the outrageous, what the cost for annuallicense. and this is just a way of taxing. so, it's not even to me i think even a wayof, of, i don't think there's any shortage of lawyers out there um by way of example. but it's a way that the government can extracta tax if you want to do business. and when you tax something you get less ofit or surely less quality of it. um so again and we'll go for the bigger discussionof you know, what is that compelling license? then more importantly and i look forward tothe discussion, what is exactly that we do

about this? i think senator cruz had a very excellentpoint about sunshine is the best disinfectant and maybe that's a lot. um these are very entrenched interests umand then you couple that with revenue to a state. sometimes shame is your best policy althoughsome administrations have no shame. um you know, do we do some sort of preemption? i mean you run into a 10th amendment issue. um do we have an antitrust concern?

and to talk about the north carolina dentist. um and then you even have a due process concernand, and we'll talk about this when we start talking about some of the law, but i did apiece, it just reminded me listening to maureen's speech. i do a lot of work on dealing with municipalbroadband works. the government um fighting uh the privatesector and that's never a good idea. and there was actually a case last year outof the d.c. circuit dealing with railroads. and um, and they sued amtrak and it turnsout the d.c. circuit ruled the amtrak's statute unconstitutional, it violates due processbecause in that case what the court found

was that essentially you can't be both a competitorand a regulator at the same time. even if you are nominally the government. that just violates all basic things. so, these are all avenues in how we pursuethat but i think that's the way to just start the discussion about a very complicated issue. so, i'll turn that over to my good friendmichelle. thank you. (clears throat) thank you. um so as the only economist on the stage andunlicensed because there is no license ... um

but i think we haven't really had to arguefor that because it doesn't seem that droves of people are running to uh get econ degreesso i think we're safe. um so as larry was mentioning there are manylegitimate health and safety concerns, issues about asymmetric information that, that justifythe use of licenses in certain professions. uh a couple things to note though is thatthe market is changing rapidly and certainly the internet is something that is very quicklychanging the issue about asymmetric information. and certainly, helps uh with issues of rogueactors. um also it's not clear to me or at least ihaven't seen any studies that really demonstrate even in cases of health or safety recurrent,uh, considerations, that the outcomes in states

with more stringent or more onerous uh licensingrequirements, if they actually have demonstratively better health uh, outcomes, health or safetyoutcomes. that seems something that might be worth considering. now this panel is really focusing on the caseswhere there are not so many legitimate reasons for uh arguing for occupational licenses. um i have stolen a lot of details from theuh, institute for justice so thank you for that and sorry if i preempt you. it's very obvious when we see that there arewidely varying requirements for the same type of license in different states.

if these requirements are so crucial, thenthat would argue they would need to be quite harmonized. um it's also very obvious when only a fewstates have licenses for particular occupations. um so the one that i really loved was uh forinterior designers. there are only three states that require itplus the district of columbia. so, you will all be happy to know that youare protected from, from bad designers and in d.c. in 2012, to get a license as an interiordesigner in d.c. you had to pay $925, have six years of combined education and experience,and pass an exam. i don't know what the exam looked like.

do you? oh yeah, it's a bar exam for interior designers. oh, it's excellent. you know, and then obvious other examplesare shampooing, florists, cosmetologists, tree trimmer, which i'll get back to later,teacher's assistant and sign language entrepreneur, interpreter, sorry. you need an interpreter for me as well. um, now clearly in economics we call thisa barrier to entry. um and this is the exclusion of new members.

uh this exclusion is promoted by either existingmembers or by potentially competing professions. uh the types of barriers are multiple. there are cost barriers. even a relatively small fee of a few hundreddollars can be an effective barrier for someone in a low-income situation. time is a very effective barrier. if you have many years of uh time when youare not able to earn a living because you have to satisfy this experience requirement,if you're from a low-income household again that's going to be a sufficient barrier foryou to not be able to join this occupation.

and then we have a ver - an even more extremecase of caps on the numbers of licenses. so the most well-known example are certaincities put total caps on the number of licenses for taxis. um as a consequence the license itself becomesa commodity. uh the uh medallions in new york city go forover a million dollars each. i don't find that the quality of my cab servicein new york city is worth a million dollars. i also thought i'd add a term that i haven'treally seen within this discussion but it's a term we use in economics. it's called dups.

directly unproductive profit seeking activities. and the definition of this is an activitythat uses real resources in rent seeking activities in order to, to increase profits, but it itselfproduces no output. um the key about dups and this can exist,this is clearly a situation when we have some of these unreasonable licenses. we also have it in trade policy and many othereconomic scenarios. but it's always promoted by organized groupsand as maureen was saying concentrated groups which makes it easy for them to organize andhave an incentive to get these concentrated benefits.

and it's at the cost in this case, of twogroups. it's the cost of potential entrants who areusually without much money and not organized, have no real means of organizing. and at the cost of consumers who also arenot easily organized to lobby against this. also, the consumers may have relatively smallcosts. as a social group, it's a huge cost but theindividual doesn't have the incentive to try to lobby against it. um and this makes regulatory capture veryeasy. unless we want to be more benevolent and saythis is regulatory over reach.

but the results of directly, of dups, i'llcall them dups because i like that term, is that it restricts production and employment. it raises prices and it harms both potentialmarket entrants and consumers. and one thing that i thought was very interestingabout what others have said is that the key about the harm to potential entrants and um,and what effects that has. so, i was looking at the institute for justicereport and the professions that were being hit by that. and the, if you look at the population thatis in those occupations, the average income is around thirty thousand dollars.

uh slightly more men than women. but what is very interesting is that men andminorities are over represented in this group relative to the general population. so, this is a exact socioeconomic, these aresocioeconomic groups that we observe in economics are having significant problems with longterm under employment or unemployment. so, these are exactly the occupations whereyou want to lower those barriers to help them and they're the people who are getting hitby it. and they're usually getting hit by it by otherprofessional groups who are making much more money and simply don't want lower cost competition.

um the, the second thing that i noticed frommaureen's statements is that because of the differences in the state licenses and lackof reciprocity across states, um this harms labor mobility at a national level. and the example of the military wives is illustrative,but more generally, when we look in economics at uh, any kind of shock. whether it's a technological shock, and industrialshock, a trade shock, it gets concentrated on certain industries. and those are usually geographically located. and if people who had a great deal of nationallabor mobility, then the workers are able

to move to other areas and the shock getsdissipated much more quickly. so much of the harm that our workers incurwhen there are these massive exterior shocks is because there is a lack of labor mobilityfor many reasons. but to the extent that we know that thesetypes of licenses are only increasing that, we know that that's only amplifying the negativeshocks to these workers. it's going to be important for spouses likemilitary spouses, but really for spouses of any dual income household where the primaryearner has a need either because of a shock or for a positive reason to move to anotherstate. so again, these licenses are hampering uhthe socioeconomic group that's having the

hardest time in terms of long term uh, underor unemployment. now just so i don't sound too, too againstcertain things, okay and no one will really be able to see this. i wanted to put this on a slide. but i'm going to provide a evidence that peoplecould use to argue you do need licenses for certain things. this is what i do on the weekends, which ismy chainsaw. my steel chainsaw. and people could argue that that is a youknow, social security issue.

but um, just to have something positive. thank you, michelle. uh clark? well i um, when you started talking aboutdups i was afraid you really had stolen my thunder because i'm here to talk about therole of judges, um in failing to protect economic fortunately, it was not, it was just an acronym. um i'd actually like to push back on thispremise that there are some jobs that justify i'll give you an analogy. i mean i've done nothing but occupational... not nothing, but i've done a lot of occupational

licensing litigation in the 17 years thati've been with the institute for justice. um i should give a shout out to my friendsjosh windham and rob johnson who are in the back. to paraphrase yogi berra, i'd rather fightfor economic liberty with you than with the best people in the world. (laughter) so, um imagine if, if you have a couple oftoddlers as i do at home and, and you have a problem with um, with rats. fortunately, we're in a rental house so it'snot actually my fault.

um we do. now um, one possible way of dealing with therats would bring, would be to bring in some timber wolves. and those are the regulators. and these particular timber wolves are wild,ravenous and maligned. now is that a rational way to deal with yourpest problem is to bring in some timber wolves? they're going to be real effective in goingafter the rats, unlike regulators going after incompetent practitioners. um what you discover very quickly is thatum, that when you create a regulatory body

with the idea of excluding incompetent practitionersand going after unethical licensees, they don't do any of that. they devote virtually all of their effortto keeping out non-licensees. that's what they do. it's called regulatory capture. it's a nobel prize winning theory, you canlook it up. um but occupational licensing, whatever uhhopes we might have for it, completely fails uh to pass the test uh of empirical analysis. there's virtually no uh economic uh data tosuggest that it does anything good, and abundant

economic data to show that it's absolutelydisastrous for productivity and for innovation. why is america the wealthiest, most prosperousnation the world has ever seen? well i think it's because we are a countryin which people have always felt that if you come here you will be able to reap the justrewards of your effort of your industry. and i emphasis, i'm going to put the emphasison just and come back to that in a moment. anybody know what the most patented devicein the history of america is? mousetrap? it's the mousetrap. 4400 patents.

95% of them to first time, amateur inventors. why do people keep on inventing mouse traps? is it for the fame of being the most recentof those 4400 mouse? no? is it for the sheer creative joy of venning- no. it's to make money. and either america is going to be a placethat encourages that kind of innovation or we're not and we are sliding, very quicklyin world rankings of economic liberty. why?

because we are abandoning the rule of law. it is no longer the case that america wouldstand head and shoulders above every other country in the world if you are an inventorand you had something amazing to bring to market and you got to pick any country inthe world. there was a time when it would be a no brainerand that time has passed. uh depending on what survey you look at we'resomething around 15 or 16 in world rankings of economic liberty and we're sinking. why are we abandoning the rule of law? because our judiciary is systematically failingto fulfill its roles as a truly independent

branch of government and to give any meaningfulsubstance to the supreme courts long standing recognition that each and every one of ushas a constitutional right to earn a living free from unreasonable government interference. they say it, and they have said it for overa century and for the past 65 years they haven't meant it. how do we know? because they protect this so called rightwith something called the rational basis test, which for those of you who don't practicelaw is a fraud and a charade invented by the supreme court to provide the appearance ofjudicial review with none of the substance.

if i sound a little exercised it's becausei've been litigating rational basis cases like captain ahab for the past 15 years. um but we're going to put a harpoon throughthe cold, black heart of the rational business test i'm sure. um here's why it's extraordinarily important. there are two reasons. i want to illustrate it with an actual case. um you know when you're, when you're in thebusiness of trying to vindicate economic liberty you have to look for the most ridiculous occupationallicensing laws you can find.

because so many people have a preconception,right? show me a picture of a chain saw, aaahh! surely some bureaucrat must be charge of whocan pick that thing up. uh my sister's a doctor in maine, virtuallyeverybody thinks she should be licensed. i used to by the way, but i've known too manyregulators in the time i've been working. oh and by the way let me add one thing towhat, to affirm a point senator cruz made. i wish i had a dollar for every time i'vebeen litigating an economic liberty case and we get to a break in a deposition or somethinglike that and uh, my opposing counsel if we still have a good relationship which is sometimes,um during a break will look at me and say,

"you know ah, you know clark i was on your,i was on your website last night and i was looking at some of your cases and i'm goingto tell you, i totally agree with you on all those other economic liberty cases. i mean not this one, this is one different,but all those other ones." uh it happens all the time. so craziest law we ever found. occupational licensing law. louisiana alone among the states requiresa license to be a florist. not making that up.

take two flowers, put them together in anaesthetically appealing way ... probably we're okay with the centerpieces because i onlysee one flower. but if you put another one in that vase umyou, that would be illegal to do in louisiana without a government issued license. at the time we challenged that law in 2003they had um a licensing exam that required would be florists to come and do four floralarrangements in four hours that they would then have to take up to a table um at whichwere sitting judges who were not theoretically disinterested bureaucrats. you got to hand it to louisiana, they neverdo anything halfway when it comes to this

kind of stuff. they would bring working florists in fromthe industry to judge your work and determine if you were good enough to compete with them. anybody want to guess what they usually said? 65% fail rate on the louisiana florist exam. it was actually harder to become a floristin louisiana than to become a lawyer. the bar exam had a 67% pass rate so go figure. all right, does anybody, does anybody reallywonder why the state of louisiana licenses florists?

do i sound like i'm acting, asking a rhetoricalquestion? i'm not. i've actually only ever met one person whohad some wonder, who actually did not know why this law was. i've, i've talked to people on airplanes,i've talked to little kids who just fell off the turnip truck. the only person i've ever met who had somequestion about why this law was enacted was wearing a robe. a federal judge upheld this law.

uh partly on the basis of the alleged buttotally false physical dangers of unlicensed floristry. which apparently include infected dirt andmisplaced corsage pins. it's written, you can look it up. all right so what are we going to do aboutthis? well i think what needs to happen is the judiciaryneeds to get back in the business of fulfilling its customary truth seeking role. i don't actually care that much whether theystrike down these laws or uphold these laws. what i care a lot about is that they stoplending their imprimatur to this kind of corruption.

and i'll say that again. this is corruption. when the state of louisiana requires a licenseto be a florist, that is a corrupt abuse of power and we've got to get the judiciary outof the business of rubber stamping it. again, i don't care that much whether youstrike it down or uphold it, but don't pretend to believe it. when the state of louisiana comes in and sayssomehow with a straight face, i don't know how he did it, my opposing counsel. that a possible explanation for licensingflorists is the physical dangers of unlicensed

that's not true and that shouldn't, that shouldn'tfly in a court of justice. again, whatever the standard of review mightbe. so, there are a variety of things we can doi think to move from here to there. um my colleague rob johnson has actually umuh, written a wonderful brochure um, tell them what the name of the brochure is rob? rob johnson: boards behaving badly. licensing boards behaving badly. you can look it up, and we have a whole suiteof suggestions and what it boils down to essentially is occupational licensing should not be apolicy of first resort as it is now.

it should be a policy of last resort. and we have this in, beautiful inverted pyramidto convey graphically that there's like a dozen different things you can do if you haveconcerns about chainsaw waving weekend warriors who happen to go out and i guess open a shingleas a arborist or whatever. by the way, that's a heavily regulated industryin case you didn't know. so, um that's the takeaway. two things. we need the judiciary to get back in the,in the business of at least not pretending to believe what no one would believe.

get back in their customary truth seekingrole and saying hey, you know what, i'm not telling you what to do but i am telling youyou're not licensing florists to protect the public. done. second, convince policy makers to flip theirapproach. do not go to occupational licensing as a policyof first resort. it is a policy of last resort. thanks clark and thank you for .... (applause). yes, i love your captain ahab reference there.

you're getting the full from hell's hearti stab at thee effect here so excellent. so, um everyone i think has done a fantasticjob of sort of touching on these different factors that play into why we have occupationallicensing, why we shouldn't have occupational um i think one of the, the interesting factorsas well is it's often seen as a binary yes or no thing rather than you know, should wehave certification. should this particular practice be licensed,that only a dentist can do it rather than dental therapist or some, something there. so, there's lots of complexities here. but i'm going to jump right to the last question,uh and, because i want to have time for audience

questions. is what else can we do or should we be doingto try to make a dent in this? you know the tools at the federal level aresomewhat limited. i often get that question, what are you goingto do? you know we, we did the north carolina dentalcase, we've tried to clean up the case law on state action immunity, i've tried to shinea spotlight on it, we've done our advocacy. what else are we missing? what else should we, can we be doing? so, i'll just sort of throw that open to thepanel.

well i'll start i guess, if i may. so, a couple things i think to get sort ofa little more specific. um, the supreme court has got to decide whereit stands on this question of occupational this was a, there's an extraordinary williamo. douglas quote um, and there's a case in which he says in dissent that, "i had alwaysthought that um the right to earn a living was the most precious right that man possesses." and then within a year he wrote the worstoccupational licensing decision in supreme court history, a case called williamson v.lee optical in uh, i think it was 1954 or 55.

and that to me illustrates the extraordinarycognitive dissidents on this point. um and if you actually look at any test thesupreme court has ever promulgated for determining what is a fundamental right, which is supremecourt speak for meaningful, um the the right to earn a living and put food on your family'stable undoubtedly qualifies. and so, this failure to step up and provideany meaningful protection for economic liberty um is not an act of judicial principal. um it's an act of judicial abdication. and so, point one is that the courts needto get back in the business of treating occupational freedom like the fundamental right that itis, and i think this would tend to provoke

a kind of an important dialogue where insteadof uh, another thing that senator cruz said that i agree very strongly with is the truthis important. and right now, we have the judiciary participatingin a truth hiding process with the other branches. take an antitrust case for example. they try to get at the truth in those cases,but in an economic liberty case? quite the opposite. they try to suppress the truth. so, i think if we could get the courts andthe legislature into an honest dialogue about what are the legitimate ends of governmentand are you exercising power legitimately

in this case, um we would begin to see positivemotion. it wouldn't be an overnight cure. there's no such thing, but this would beginto move us in the direction of an honest national dialogue about the abuse of this power whichwe are absolutely not having right now. so, michelle you are an unlicensed doctorsitting up here on the, on this stage with us, right? yes, you have a phd. no one cares about the health of duke students. right, yes so is there any sort of economictest that we should be applying here to say

whether this is you know a, a worthwhile typeof regulation or whether we're into the economic protectionism, dead weight loss world. i think a lot of studies could be done. labor economists could certainly work on this. and they're also many dimensions in ... withwhich to attack this. one are, you know there are positive claimsby those arguing this helps. so, does it? if there's no evidence of that, that lowersthe relevance of that claim. secondly, we could look at things like uh,uh, does it interfere with growth and productivity

and employment. and since we have state by state variationthat can help. we can also look at cross country variationin these things. so certainly, empirical studies i think giveyou tools and evidence that could be put forward and um, i think unfortunately many of thesethings are based on hypothesis or opinion or scare tactics. um and aren't based on any kind of empiricalevidence. uh unfortunately i was very surprised at howlittle the economics literature has done on this.

uh because it seems almost self-evident tothe economist. i was actually in the audience when the uh,north carolina dental case was being argued. because you know, it's an ftc case. and it was very interesting to me to see thepresumption uh, that a lot of the justices had, that if you had higher licensing standardit would create better outcomes for, for consumers. and a, a complete sort of um, blind spot asto the access issues, right? so, it's the idea yes wouldn't it all be greatif we all drove you know very expensive cars and they would be safer, but without payingattention to all the people that would walking, right?

and so, that's one of the, the issues thati think may be worth studying right. for example, in a state where you uh, uh didn'thave a license or you had a lower license for certain health care providers, do youactually have better outcomes because it has improved access. the ftc has actually filed comments to allownurse practitioners into the big box retailers right. to get the flu shot, the ear infection, thosekinds of things treated in a lower cost setting at hours that are convenient for people whodon't necessarily get to take a, you know an hour of sick leave to, to go do somethinglike that.

so, i love your, i love your suggestion. so, larry do you have any, your idea, yourinsight that a lot of this is basically a money generating activity for the state, umi think has some appeal to it but, but one of the problems that i see is that you maypay $200 license fee to the state but they may also require you to have you know 270hours of um, training to be a hair braider. mm-hmm (affirmative). the state isn't reaping that, that benefit. right, right. so, do you see any way to sort of make, makeprogress on that?

well i think it comes down to um, i, i justgo back to what senator cruz was saying. i mean sunlight is the best disinfectant. i mean when one does public policy um, i'vebeen doing this for a long time, one never has a giant eureka moment and go i am so sorryi was wrong. um you know, firms are not passive recipientsof regulation. uh they manipulate the system, that's theenvironment that we live in. um and so sunshine, i mean again there areat, at the 90,000-foot level there are some compelling reasons for occupational licensing. i don't think you can do that - i mean clark,i mean there was, i remember in high school

reading about the 1792 outbreak of uh tetanusfrom rusty um, uh corsage pins. that a lot of people don't know about. it's very dangerous and you have to be verycareful about this. i'd hate to have that happen again. um but i, i mean the fact that i think maureenthat you're bringing attention to this ... and again, your line that we go from the sublimeto the ridiculous. and each case is going to be different. again i'm, exception michelle, we're all lawyerson this panel, right? we all take, and i use that as a, as a personalexample but you know, i'm not interested in

the un, unlicensed practice of law. i'm - there is - i remember um years ago,i was watching um david bowie on mtv and he was, it was painting with david bowie. and they said david what is the definitionof art? and he said well art is obviously in the eyeof the beholder and anybody should be able to paint if they want to, but it also impliessome degree of expertise and technique if one’s going to be professional about it. so, you do have some compelling state interestsbut it's this excess. so again, going back to my, what i said earlier,the market may demand of qualifications.

and the market can decide whether or not itwants. again, i use the example of if you want torun uh, be a professional makeup artist there are some safety issues involved because youdon't want people touching with dirty brushes and so forth and so on. now maybe you grew up and you learned thisbut you know, the market may demand that. that's not going to mean that you couldn'topen up your own salon and then people are going to be i don't know if i want to go overthere, it's kind of dirty. but again, the market can govern that. so, the requirements i mean, it's interesting.

here's a great example. montgomery county is perfect, you just poppedin my head. the battle between volunteer fire fightersand the unions is huge in montgomery county, maryland. and the unions have done everything that theycan to drive people who are voluntarily willing to run into a burning building and save people. that's absolutely ridiculous. so, you see this all the time that we've had. so again, i got back to the point of publicpolicy making is an incremental process.

it's always you know, baby steps forwards. it's victory at the margins. so, the fact that you are calling attentionto this is phenomenal because nobody has done this before. i mean you know you've had the obama administrationkind of talked about it a little bit but now you actually have the acting chair of theftc going this is a major issue. if the goal is to get jobs, if the goal isto drive the economy, this is clearly a problem. it is a complex problem, but now we are focusingattention to it. and very often in public policy, when theyou know, the squeaky wheel gets uh greased,

that's what you do. because again you know, you highlighted earlier. i mean you have the brother may i problemadded on to the state's. and i think what's interesting just goingback to the law for a moment having reread the north carolina dentist's case before thisevent, i mean what was interesting about all the, with the exceptions of i think justiceroberts, the conservative wings, um alito and scalia and i think um thomas wrote inthe dissent. you know their view of illinois dentists wasin the parker v. brown immunity was no, the dentistry board was actually an action ofthe government.

so, it wasn't part of you know, you get intothe active state supervision and so forth and so on and whether or not dentistry includesteeth whitening. teeth whitening. so, but the point is that policy starts, andas you've done, senator cruz has, by bringing attention. that, that's how the process gets starts. and then as senator cruz said i think so brilliantly,when you start highlighting, you want to screw your consumers? be at it.

but you know, i'm on record and here's - whichthen goes and what michelle was talking about, a good analytical story. you know this, this is a very personal thingto a lot of people. and so, unless you have the good analyticalstory with the good data that all this doesn't mean anything, then you turn it into an ideologicalfight. and i think that is probably the most proconsumer thing that, one of, you know that you can do. so, i think we have a few minutes for questions? okay five.

is there a microphone to ...? okay, uh maybesteve delbianco first? thank you, steve delbianco of netchoice. and maureen, you put a restraint on thoseof us in the room who believe in federalism to say that this town can't really issue mandatesor preemption to the states, but there's an opening. the states have no such compunction aboutpreempting city and county governments. whereas michelle pointed out, occupationallicensing with respect to taxes is only the beginning of it. fairfax county where larry lives, occupationallicense on folks who do personal training

at the gym. and then turn it into another economic - i live in the people's republic of marylandso i'm sorry. but the economic liberty of people who havean asset like a home, they have property rights and they want to be able to rent a room ora home on airbnb or home away, again all of those regulations are city and county level. so, i think we can partner with state legislatorswho believe in economic liberty and property rights, for them to run bills that preemptlocal authority with statewide standards. we could have a full agenda of a year's worthof good legislation and solve a lot of the

problems without violating a federalist principal. great, thank you steve. this gentleman here? and i hope you'll file, send us an email withyour ideas to econliberty. for uh, certain health and safety occupationsi can understand the argument for licensing in favor of nothing at all. but if you just compare licensing to a systemof registration and requiring them to post a bond for any damages they cause, is thereany advantage for the licensing compared to that kind of system?

no. no the answer's no. can you hear me? the answer is no. but really quickly while i have the mic ifi could revise and extend my remarks about judges um, there are some really amazing onesout there. um, janice rogers brown and david sintel wrotea concurrence in a case involving federal milk regulation in which they applied rationalbasis review, which they were obliged to do, upheld the law which they were probably obligedto do and then judge brown went off on many

of the things we've been talking about andreally pulled the veil back uh on both the legality and the wisdom of putting in thehands of people who gave us the food pyramid to put them in charge of regulating occupations. these people told us the best things to eatare french fries, pop tarts and white rice. yeah let's put them in charge of occupationallicensing. great. oh, and uh, also my friend don willet downin texas wrote the most pro liberty economic uh, or the best economic liberty decisionever in a case involving eyebrow threaders. look it up.

it is a rousing, rousing defense of the mostfundamental right that americans possess, which is the right to put food on their family'stable. and i would also say sometimes we kind oflook at this kind of in a vacuum as if the um occupational licensing is the only bulwarkbetween you know, terrible outcomes for consumers. well you know we have market forces. it's very interesting that at a time whenconsumers have much, much more availability of information uh from you know the web, fromonline you know platforms and stuff like that, that licenses have gone, way, way up. because it has reduced that consumer informationasymmetry.

uh there's also that you know, you ask, isthere a demand for unlicensed brain surgeons. um, perhaps not. i mean that's ... right? so, that's, you know there are other elementsthat may play a role in how services get offered. right but at the same time, i mean you haveto pass the, the medical exams, right? i had to convince some professors to giveme my phd. and so, it's not as if you would go into adoctor and there wouldn't be evidence that they have training. so, in that sense it's not clear to me whatthe license is add, giving an added benefit.

i think it's more in the case where someoneis not highly trained that that, the informational asymmetry may, may be relevant. but i think that the web is doing a very goodjob of, of reducing that problem. could i, i just want to add one thing. is anybody in the room, i assume a lot ofus are lawyers. uh, oh by the way, todd zywicki back here,if you ever want to hear uh, uh public choice theory in 45 minutes, go and beg him to justgive you the 45-minute lecture. it's entertaining and informative. uh, has anybody ever had to go and find alawyer for friend or a family member?

because i had to do that a few times in thelast few years and i will tell you that whether that person was or was not licensed in a particularstate was of exactly zero relevance to me. what i care about is reputational uh, um,you know information. and if i can find somebody who's had experiencewith that person. and i'm concerned actually that occupationallicensing could lull people into a false sense of confidence. oh, oh, uh this guy's uh, uh, uh, uh licensedby the state of illinois. he must be great. and so, i think occupational licensing actuallymight be counterproductive in some professions

where you think it might help um for a varietyof reasons. one, one more? up here? uh carl zebo with netchoice. one of the things that we've been talkingabout is interstate work. it was mentioned about uh, insurance portabilityacross states and now with the internet i, as an attorney who's licensed to practicelaw in d.c., it would be great if i could practice law for my friend who lives in virginiabut i can't. what type of economic impact have you seento startup businesses?

like zenefits encountered this problem whereyou had to be licensed in every state. what type of impact on new businesses havebeen suppressed by the licensing on a state to state level that eliminates kind of theeconomies of scale model that the internet provides? well i can give you one concrete example. um there was a wave in, in the funeral industrywhere corporate funeral homes essentially started displacing mom and pop funeral homes. now mom and pop funeral homes turn out tohave a lot of economic inefficiencies. essentially what you have is a funeral directorwho reads the sports pages six hours a day

and then comes down to meet with familiesonce in a while. that's, there's some inefficiency in thatsystem. corporate funeral homes came along and squeezedout a lot of that, those inefficiencies. um maybe they brought some things that weren'tso great but at least you know, if you wanted to you could, you could deal, you could geta much lower cost uh funeral. um maryland actually is the only state inthe country i believe, maybe new hampshire but in maryland it is illegal for corporationsto own funeral homes. we challenged that law. um you probably can guess what happened incourt so i won't bore you.

um but, but in maryland ... oh and then thereare fifty, five zero grandfathered in corporations and guess what? they're, those, those, those, the abilityto, to operate a funeral home in maryland is very much like a taxi medallion. they sell, they're allowed to sell them. they're transferable and they sell for upto half a million bucks. because it's better to, to do - and so, here'sthe takeaway. it's very clear that that law was put on thebooks for one reason and one reason only and that is to keep out of state corporate funeralhomes from penetrating the maryland market.

and if you have any doubts about you knowwhy, is just go and ask a maryland funeral director and they will tell you why that lawis on the books. and many of them love it and i don't blamethem. i think ... okay. so, uh, i'm glad people have lots more questionsbut i think, i think we've run out of time so i just uh wanted to thank our panelistsfor an excellent discussion and let's all keep fighting for economic liberty.

Subscribe to receive free email updates: