Contrary to conventional wisdom, occupational licensing restrictions do not serve a primary purpose of protecting consumers. They instead wage war on the market economy. This reality is unsurprising when one considers the makeup of a typical licensing board, which consists primarily of active market participants. These industry incumbents scheme to keep potential competitors out. Entrance exams for florists and onerous educational requirements for interior designers—absurd as they seem—become the rule rather than the exception. Despite their propensity for anticompetitive conduct, licensing boards elude review under the Sherman Act, the nation’s chief law regulating anticompetitive conduct. Licensing boards need not defend their self-interested conduct thanks to a line of Supreme Court cases that establish relatively sweeping immunity.
Rather than rework an entire body of case law, this Note recommends a statutory solution to confront crooked licensing boards. States should look to the federal revolving-door statute for inspiration. Though the revolving-door statute addresses a slightly different subject in imposing lobbying bans on former executive branch officials, similar concerns of corruption predominate among licensing boards. Accordingly, states should craft their own revolving-door statutes and bar active market participants from occupying a majority of any licensing board’s membership.
Correcting Crooked Licensing Boards with a Revolving-Door Statute,
Ga. St. U. L. Rev.
Available at: https://readingroom.law.gsu.edu/gsulr/vol39/iss3/13