Russ Roberts

Dick Carpenter on Bottleneckers

EconTalk Episode with Dick Carpenter
Hosted by Russ Roberts
PRINT
One of these Days, Alice...... Bill James on Baseball, Facts,...

Bottleneckers.jpg Dick Carpenter of the Institute for Justice and author of Bottleneckers talks with EconTalk host Russ Roberts about his book--a look at how occupational licensing and other regulations protect existing job holders from competition.

Size:34.5 MB
Right-click or Option-click, and select "Save Link/Target As MP3.

Readings and Links related to this podcast episode

Related Readings
HIDE READINGS
This week's guest: This week's focus: Additional ideas and people mentioned in this podcast episode: A few more readings and background resources: A few more EconTalk podcast episodes:

Highlights

Time
Podcast Episode Highlights
HIDE HIGHLIGHTS
0:33

Intro. [Recording date: December 19, 2017.]

Russ Roberts: Before introducing today's guest, I want to encourage listeners to vote for your favorite episodes of 2017, as well as telling us about yourself and your listening experience at EconTalk. Go to EconTalk.org; and in the upper left-hand corner you'll find a link to the survey. Thank you for a great year. And I hope to make 2018 better.

0:54

Russ Roberts: My guest is Dick Carpenter... He is the author, with William Mellor, of Bottleneckers: Gaming the Government for Power and Private Profit. It's a book about occupational licensing and related issues, topics that we've talked about recently here at EconTalk; and that's going to be the topic of today's conversation.... What is a bottlenecker?

Dick Carpenter: A bottlenecker as we define it in the book is someone who advocates for the creation or perpetuation of a government regulation, particularly an occupational license, that restricts the free flow of workers so that those who are in the occupation can enjoy an economic benefit.

Russ Roberts: So, what would be an example?

Dick Carpenter: Well, if we think about it in occupational licensing terms, most of us are aware that doctors and lawyers have licenses; and generally people understand that barbers and cosmetologists have licenses as well. But, today, there are lots of occupations that heretofore never required a license, now do require a license. That's often very surprising for people. So, auctioneers and locksmiths, sign-language interpreters, furniture upholsterers; florists in Louisiana, I think interior designers--all of these are occupations that now require a license. Which is essentially a government permission-slip to work. You have to go to the government to get permission in order to work. That's how a license operates.

Russ Roberts: And most people don't know anything about it. And that, of course, would include me to some extent, although I'm interested in it and have been for a little bit of time. I think most people's attitude is, 'Well, that seems reasonable. To be representing yourself as a florist, you have to have some knowledge of'--I want to say 'floristry'; I don't know if that's a word. We'll say, 'flowers,' just to play it safe. And so, 'A license--what do you have to do? Maybe, like take a test?' But, of course, the range of things you have to do to get that license varies quite dramatically. Give us some examples of that.

Dick Carpenter: Perhaps[?] So, we actually published a report just about a month ago--we at IJ [Institute for Justice], my co-authors and I--examining licensing requirements of 102 different low-to-moderate-income occupations--very much like the ones I just mentioned: auctioneer, locksmiths, and so forth. And so, we examine the requirements for these particular occupations, and we found, as you said, that they are often very disparate. On average, one has to complete about a year of education or experience, complete an examination, and pay about $267 in fees to the state. These were amongst the 5 types of requirements that we collected. The other two were minimum age levels and minimum grade levels. And there are other requirements as well to earn these licenses: there's CPR [Cardiopulmonary resuscitation] training, bonding and insurance, character references, etc., etc. But we examined just those 5 that were most common. So, on average it takes about a year. Which, to many people may not sound like much. So much, so if you have a college education or you have multiple degrees, maybe a year doesn't sound like much. But for somebody who wants to work as cosmetologist, for instance, and may come from a disadvantaged or low-income background, spending a year on education and experience is a long time, and a lot of resources spent earning a license rather than earning a living. So, it can be a significant hurdle to enter that particular occupation. But these requirements are often very disparate as well. So, if you want to work as an auctioneer, 30 states license auctioneers. If you want to work as an auctioneer, 4 of those states require a year or more of education or experience. But, Louisiana only requires 7 days; and in Vermont, it's only 9 days. Eleven of the states that license auctioneers have no education or experience requirements at all. So, we see these very disparate requirements. Locksmith is another great example, where, in most states that license locksmiths, there are very small or minor education and experience requirements. But, in New Jersey, for some strange reason, they require more than a year of education and experience to work as a locksmith. So, these requirements are often very disparate. To do the exact same job, that's just one type of disparate funny[?]. We often found that in one occupation, we'll find that some states license and other states don't license, or, if you compare the licensing requirements of one occupation to another vis-a-vis the safety risks, you see some very irrational requirements. So, we found that on average, cosmetologists will spend about 12 times as much time in education and experience as compared to EMTs [Emergency Medical Technicians], who spend about a month in education or experience. So, there are these really disparate requirements that undermine this rationale of licensing. The rationale is: We need to protect public health and safety. Well, if that's the case, then why is it that only 10 states license furniture upholsterers? If it were really a dangerous epidemic, we expect more states to license it.

6:34

Russ Roberts: Well, it could be those other 40 are just playing into the fire. They've got all the really bad armchairs and couches, and they just don't know any better. So it's hard to know. I mean, the thing that's striking to me is--first of all, before we go further: IJ is Institute for Justice, that you mentioned earlier. Why don't you tell us what they are, actually?

Dick Carpenter: Sure. IJ is a non-profit public-interest law firm that represents individuals whose most basic rights are violated by government. So, IJ represents all clients for free. IJ specializes in suing the government, when the government infringes on basically rights of individuals. We take no government money of any kind. Except one. That is, attorneys' fees when we win. Otherwise, we take no government money. And we're supported entirely by donations, by individuals. And so, we represent individuals in the sphere of economic liberty, people who want to work but are prohibited from doing so by irrational government licenses.

Russ Roberts: You do other stuff, as well, though. This is an important area of what IJ does, is trying to break down licensing requirements that are not related to public health and safety, right?

Dick Carpenter: That's right. So, we also litigate in the areas of private property rights, free speech, and educational choice.

Russ Roberts: So, the other thing I want to clarify is: A cosmetologist--that's not an astronomer, right? Thank you for laughing. That was a joke. Thank you for appreciating that. But, I'm pretty sure it's not an astronomer; but it has something to do with cosmetics, and looking good. But, what is it, in some level or precision? Because it's a term that licensers use. It's not a term--not many people say, 'I need a cosmetology appointment today.'

Dick Carpenter: Well, sure. So, the cosmetologist is somebody who is going to work on your hair, or sometimes work on facial features, occasionally on nails although that's typically done by a manicurist. So, the cosmetologist is somebody you are going to see when you go into your salon for--it's usually the term that's, it's associated with women and women's services, or a barber or something that's associated with men receiving hair styling.

Russ Roberts: So, what's wrong with having cosmetologists--say, the woman who cuts my wife's hair--have a license to make sure that she has a good job?

Dick Carpenter: So, licensing purports to protect public health and safety. But, in fact, there is little evidence that it actually accomplishes that. But, there's plenty of evidence that it comes with significant costs. And these costs have been quantified by economists now for a number of years, which include increased consumer costs. And I should back up and say the mechanism for the cost is this: The occupational license--occupational licensing is one of the rare public policies that does exactly what it's designed to do. It keeps people out. We talk about unintended consequences of public policy. This is an intended consequence of licensing. It keeps people out of the occupation. And so, that means, the licensing acts as a [?] as we describe in the book--that restricts the flow of workers into the occupation; and those who are in the occupation can therefore artificially inflate prices and wages as a result. So, that's the mechanism by which these costs are created. So, the first cost in increased cost to consumers. These artificially inflated prices and wages are passed on to consumers in the form of higher prices. But it also restricts job opportunities, as well. So, Morris Kleiner, who I would call the dean of occupational licensing research, has studied this very extensively and found that licensing actually results in more than 2 million fewer jobs on an annual basis, across the country. Licensing also restricts interesting mobility migration--it makes it harder for people to move from state to state. So, picture somebody who works in the state, has worked in the state maybe for a decade in a particular occupation; they are not licensed, but for whatever reason, either need or have to move to a different state. And then they discover that prospective new state has a license. And so then, now, they are going to think twice about moving to that state. Instead may look at moving somewhere else, as a result. So, there's this reduction in inter-state mobility immigration. So, and there are other costs we can talk about as well, but these are kind of the three that have been most prominent in recent years. So, what you get, then, is this public policy that, that, that purports to protect public health and safety, and evidence shows that it rarely accomplishes that. Also, it rarely accomplishes another stated goal of increasing quality of service over and above, kind of, market regulation. But, at the same time, it comes with these significant costs, as well. So, those are kind of the economic arguments about it. But then, of course, there is the right-face[?] argument associated with it, as well: That licensing, it infringes upon the right to earn an honest living unnecessarily. That is, there is no need for the license, and therefore it infringes upon the right to earn an honest living unnecessarily.

12:09

Russ Roberts: Now, what the book chronicles are, in a number of, really often tragic cases where people's opportunities to make a living have been stopped--and it's an empirical question, was whether it should be stopped. You say the goal is to keep people out. Well, you could say, 'That's a good thing,' if it's people who are not going to do a good job or who are going to hurt people. And, it's a really bad thing if it's people who are going to be helpful and therefore they are not going to be able to contribute to helping other people through the skill that they've acquired or would like to acquire or would like to use and learn about. I want to put it in a little bit of context, for long-term EconTalk listeners and even maybe some newer ones. A concept we've talked about on the program is the Bootlegger and Baptist theory of regulation from Bruce Yandle--EconTalk guest in the past and whose view of regulation really changed the way I think about it. And, in the Bootlegger and Baptist story, there are sort of, two parts of a coalition in favor of more regulation. There are the Baptists, who have high-minded ideals in mind--and this would be, in the case--the reason it's called Bootleggers and Baptists is that Bruce was talking about people who wanted to ban liquor sales on Sunday. So, the Baptists don't want liquor sales on Sunday because it's the Lord's Day. The Bootleggers--the people who sell liquor out of the back of their car or in a quiet corner or town or out of their house--those Bootleggers, they love banning liquor sales on Sunday because it creates a demand for their product. And so, the politician uses the cover of the Baptists--they say, 'Well, it's the Lord's Day. How can we have liquor sales?' But, also, is taking money typically from the Bootleggers, who are self-interested in the regulation, and who contribute to the politician. The politician isn't going to say, 'I'm in favor of banning liquor sales on Sunday because I take a lot of money from people who have stills in their backyard.' They, instead, say, 'It's the Lord's Day.' So, they use the ideal of the high-minded argument, and it's a cover: a mask for their self-interested rewarding of a goodie to a special interest group. And the same thing happens over and over again in your book. And is--what I want to go into in some depth, which is: The idea of defending public health and safety is lovely. Keeping out competition for the Bootleggers is not so lovely. And, of course, the Bootleggers--as almost as always is the case, there are a couple of different kinds. There are the people who are in the occupation, who benefit from the restraint on the supply of people into it that thereby would otherwise lower the wages and the income. But there's also the people who do the training, sometimes, as required. So, they also strangely enough, think that the training is really an important requirement. So, talk about some of the examples of the training that's required and whether it's related to public health and safety.

Dick Carpenter: Sure. So, one of my favorite ongoing examples is music therapy. So, there is an occupation called music therapists. And, this has been something that has been freely practiced without government regulation for many, many years. But, in recent years, the industry representatives--American Music Therapy Association Certification Board for Music Therapists--have been going state by state advocating for the creation of a license. And this is--this is an embodiment of what we talk about in the book, Bottleneckers. And the story here in the book is that licenses are not created by harmed consumers and concerned citizens going to the legislature and beating down the doors asking for protection. These licenses are overwhelmingly created by these industries going to the legislature and asking for the license. So, for the Music Therapist, as the example: They go now; they have state-based task forces; and they go state by state asking for a license. And the licensing requirements are often very severe. So, Georgia created a license for Music Therapists. So, now, in Georgia, if you want to work as a Music Therapist--to earn the license to work as a Music Therapist--you are going to have to--these are all the requirements: You are going to have to obtain a Bachelor's Degree or higher in Music Therapy; and your Music Therapy Program has to be approved by the Music Therapy Association. That is the very entity that lobbied for the license in the first place. Then, you have to successfully complete 1200 hours of clinical training. You have to pass an examination--which is offered only by the Music Therapy Association--that costs $325 to take. You'll pay various fees to the state. You have to be 18 years of age or older. And then you have to pass a criminal background check. So, these are fairly high hurdles to work in a job that heretofore had any form of government regulation. And now, all of a sudden, has very severe requirements associated with that license. And that story is told again and again and again. And, so, in the book, one chapter after another, we describe how that happens: the process by which that happens. And, it's interesting--you note that those who are involved in the training are often very interested in that. So, in the process of creating it, you have an industry going and asking for the license. But they will often martial the support of not only industry members but also members of higher education or post-secondary institutions that provide training. So, it's very common that you'll see a Professor of Music Therapy or a Professor of Interior Design or whatever the discipline happens to be, where the professor will be there who will also say, 'Yeah; this is very important. Training is very important.' But not saying, of course, explicitly that his institution or her institution will benefit significantly from the government requiring all of this training. So, these [?] training often will be part of this process to create these licenses.

Russ Roberts: Well, it's just interesting to me that in the case, say, of the financial sector most of us are uneasy with the idea that there is a lot of communication between financial regulators and the financial sector. The financial sector will defend that, as will government officials and politicians, saying, 'Well, they have all this expertise in the financial sector that we are using to help figure out what is good regulation and what isn't.' And we say--most of us kind of say,' Well, you know, I think there's kind of a conflict of interest there.' In this case, though, because the person on the boards say, or the person who is testifying as a professor--which we have a generally positive attitude toward as opposed to a banker--we sort of think, 'Well, that person is going to make sure that the therapy is done correctly.' Or, that the Interior Design person is well trained. But, of course, the economic interests--the self-interest and the conflict of interest there is the same in all those cases.

Dick Carpenter: Sure it is. And you mentioned the Board, or somebody who is going in and asking for the license, would be somebody from the Industry. But, once the license is created, a Board is created to oversee that license. And that Board is immediately captured. By that, I mean, let's say there are 9 members on the Board overseeing a new license. Eight of those seats are going to be captured by member of the industry and sometimes one of those individuals will be somebody who is a faculty member or somebody who provides training from a post-secondary institution, and so forth. And even if it's not, sometimes these Boards will have these kinds of subcommittees that have different areas of focus and responsibility. And so, those who are providing the training will be intimately involved in the decisions that are being made. They are--as you said, they are the experts, and so there is some deference given to these experts in the process of overseeing this license. And interestingly enough, when you look at the legislation that creates the licenses, often the legislation will defer the creation of the requirements to the Boards. So, sometimes the legislation will explicitly say, 'You have to have this much education, pay this much in fees,' etc., etc. But other times the enabling legislation will actually say, 'We're going to create this license, but the requirements to earn the license are going to be established by the Board.' Well, the Board has now been captured by members of the industry who then set the requirements. And, as you said, there is a serious conflict of interest, because they have the ability to keep their competitors out by setting requirements.

20:53

Russ Roberts: Now, I'm trying to be a good Devil's Advocate here, Dick, which is not easy for me, because this happens to be an issue I care really--I care a lot about. I think it's really--I think it's an enormously depressing thing that so many unskilled people trying to get a foothold in an occupation can't get started, and are therefore forced to find something else, which may not be easy for them to do. Or, they are passionate about it. They are passionate about braiding hair. And let's talk about that, as an example. Because I think--my Devil's Advocate part of me and being a good host of the program--wants to say, 'Well, training's a good idea. There's nothing wrong with requiring training. There's nothing wrong with having a Board that would understand what training would be necessary to be a Musical Therapist, because I have no idea. And, as a consumer I might not have any idea even if I care to hire one. So, it's nice to know that maybe that's been taken care of by people who have more expertise than I do. And, a lot of people would say that's a good thing. Now, my natural tendency, of course, is to let the market sort that out, and if people can provide something of value and create a brand name for themselves, it's probably going to be fine. Don't need that formal piece of paper. But, the problem is, once you read in the book about what some of the examples are, you realize it's kind of a--the Bootlegger part is kind of dominating the Baptist part. So, let's talk about hair braiding. Which is--again--it's kind of a small thing. But it's not for the people who are involved in it. So, tell us what happened there and what has happened with the courts and that situation.

Dick Carpenter: Certainly.

Russ Roberts: Tell us what hair braiding is, because my hair has never been braided. Although, I had a pony tail in college. Just for the record.

Dick Carpenter: Mine has never been, either. And I don't think it's probably even possible. But, hair braiding is the many, many-years-, centuries'-old practice of--basically, the name tells you everything you need to know: braiding hair. This is short for African hair braiding. And so this is something that women have been doing in Africa and passing down to their daughters for eons, this idea of braiding hair. So, there's an entire culture built up around hair braiding in Africa that came over to America and has been practiced in the United States for many years. And so, here in the United States, the same thing happens, that a mother will often teach her daughter, and that daughter will teach her daughter. Or, friends will teach each other how to braid hair. So, this is something that has been done culturally within the African-American community forever. But, cosmetologists have seen this as a threat to their industry. And so, they have seen fit to impose cosmetology requirements on African hair braiders. But let's be really clear: Hair braiding is not cosmetology. Hair braiding is braiding. I spent a week in Tupelo, Mississippi: I was writing a study, doing a study on entrepreneurship. The subject of my study was an African hair-braider, Melony Armstrong. It's less than a week down in Tupelo, basically living in Melanie's salon. And so, what I observed was: It is braiding. There's no coloring; there's no chemical; there's no cutting. It's just braiding hair. But, cosmetologists think, 'Well, that's somehow related to the work that we do, and so therefore it needs to be regulated.' But, to work as a cosmetologist, you are going to have to go to school for a year or more. And then you will end up spending between $15,000 and $25,000 in tuition to earn this cosmetology license. And it turns out that there's nothing that one will learn in cosmetology school that applies to African hairbraiding. So, you are forcing a braider to spend enormous amounts of time and money to earn a license that is irrelevant to their work.

Russ Roberts: I'm going to interrupt for a sec, because--for, people who don't know much about hair-braiding. A lot of people may have braided somebody's hair once in their life. This is an advanced form of hair braiding we are talking about. This isn't like somebody stops in for 5 minutes in that salon, gets a braid, walks out and pays $5. Give us a range of what kind of things are done in the salon and what they are able to charge for that service--what the value is.

Dick Carpenter: Sure. So, a typical braid, kind of a basic braid, could take an hour or more to do. And so, these are very intricate braiding and weaving of hair. So, sometimes you'll hear people refer to corn rows--that could be an example of braiding. Or, sometimes the braiding will include kind of little beads or other bling, if you will, that's braided into the hair. Sometimes hair extensions are braided in. There is a form of braid called Sisterlocks that was created by one of IJ's clients a number of years ago that uses a particular type of tool and creates these really delicate locks that are absolutely beautiful when it's all completely. And the Sisterlocks process can take many hours. Some of these braiding processes will take not one day but could take up to two days.

Russ Roberts: What does Melony charge for that? Roughly?

Dick Carpenter: So, yeah. You could probably expect to pay in multiple hundreds of dollars for some of these braiding procedures.

26:48

Russ Roberts: So, it raised the question: If nothing in the cosmetology training helps Melony do her job better; and, since, probably in the mainstream salons of Tupelo and elsewhere in the state of Mississippi and elsewhere, there's not a lot of braiding going on--there's just cutting or dying or straightening or curling--why are they so--where is the zeal coming from to keep Melony from making a living? I have a thought; I'm curious what your thought is.

Dick Carpenter: Well, in the book we describe the concept as license creep. So, the notion is that, a license is created--a cosmetology license is created. A Board them oversees it. And then over time, the Board will attempt to push its authority out, push its fence out, and sweep in operations that operate at the fringe. And the zeal is, again, couched in this idea that we need to protect public health and safety: 'Well, those people are touching hair, and they might threat public health and safety by passing on some sort of disease,' or something like that. And so therefore they need to go through all these requirements. So, that's what they will say publically. But, it's also a threat economically as well, because those people are offering it--hair braiders are offering a service that might draw people away from cosmetology. In fact, here's an anecdote. I was in Tupelo, sitting in Melony's salon. She said, she suggested to me, 'Why don't you walk down'--her salon is in a strip mall--'Why don't you walk down the end of the strip mall, take a right, and go into a traditional cosmetology salon, and watch what happens down there? And you can see a contrast.' And so I did. I went down there. I sat in a traditional cosmetology salon. And a woman was giving a perm to a young African American woman. And a perm, for white people, for Caucasian people, a perm means, of course, curling your hair. It's the opposite: for African Americans a perm is to straighten the hair. And it's done with chemicals. So, I was watching this: This cosmetologist was putting these chemicals on this girl's hair, and she was, the young woman was becoming increasingly agitated because the chemicals were actually, were actually, kind of causing some sort of chemical reaction in her hair. So, she was anxious because she wanted to get it washed out. Whereas, in a hair-braiding salon, that doesn't happen. It's all done naturally. And so, the fear might be, 'Well, if people realize that if you go and have their hair done in a very aesthetically pleasing way that doesn't involve these chemicals, that might be a threat to my business.'

Russ Roberts: Well, I think it is. I just like that as an example because it, first, it shows you the range of competition that actually exists in the real world--that hair braiding is a competitor to a perm or any kind of fancier haircut--some kind of haircut that would make your hair look nice. It reminds of when people say that unions like the minimum wage. Unions like the minimum wage, and you think, 'Well, most, in fact, almost all union workers earn more than the minimum wage. So, it must be out of care and concern for low-wage workers.' But that forgets the reality that low-wage workers are competitors for higher-wage workers. You can substitute a lot of lower-skilled workers in some settings for a few higher-skilled workers. So, they like--unions benefit materially[?], financially. I'm not going to suggest they don't have any good-hearted motive. Maybe they do. But there is a financial motive in there as well. And that's certainly the case here. Can you give us a picture for the hair [?] legal environment nationwide? So, I live in Maryland. Listeners are all over the country. Maybe they are outside the United States. If a person listening wants to just start a hair-braiding operation--learns the skill from a friend and suddenly finds that it's satisfying and they're good at it--can they--what are the odds they can just start a hair-braiding business? Does it depend on where they live? And how has that changed? And I know IJ has been involved--the Institute for Justice has been involved--in opening up that opportunity for people. So, give us a little bit of that history and where we are right now.

Dick Carpenter: Sure. So--

Russ Roberts: Because, and I ask because, almost all the regulation you talk about is local. It's either state- or city-wide. Which means that it's very hard to--you have to go state by state, city by city, to fight this.

Dick Carpenter: That's right. Licensing is primarily a state function. And we're now involved in a project looking at city-level licensing, as well. There is some licensing at the Federal level, but it is predominantly at the state level and certainly at the city level. So, you are right: When one wants to reform licensing, it is a state-by-state effort, much like those who advocate for licenses have to by state by state in order to create the license. So, for many years, braiders had to earn a cosmetology license in numerous states. And we have been representing braiders in challenging those laws. And we've been successful in having these laws overturned, or successful in having legislatures create exemptions where they will say, 'The cosmetology license will exist as it is; however, braiders are exempted from this.' Or, 'They don't have to earn a cosmetology license, but they have to register with the state'--which is now a case in Mississippi, as a result of the work of Melony Armstrong, who launched this reform effort in her own state. So, through either legislative change or through success in the courts, we have been able to make changes in some states. There are still states that require the cosmetology license, or in other states where it's not entirely clear if it's required. So, I talk about in the book, just, Clayton [Jestina Clayton], in Utah, who learned braiding as a young woman growing up in Africa; immigrated to the United States; married; moved to Utah. She was in a family situation where she needed to earn some extra money. Her husband was in school. She was in school. Etc. So, she began braiding hair. Now, she actually contacted the Cosmetology Board at the time to ask if she needed a license. And was told she didn't. And so she went forward and began braiding hair, making extra money. But then, she received an email out of the blue saying, 'You're doing the work of cosmetology, and you have to have--a cosmetologist--and you have to have a license.' And so, she thought: 'This is crazy; I already asked about this.' And she went back and double-checked. And now for some strategic reason, when she checked a second time, several years later, they said, 'Oh, oh, you have to have a license.' She was gobsmacked. She was told that she didn't have to have this license. And so, she went to the Board, and she said, 'I don't understand--why do I need this.' She gave a presentation, a PowerPoint presentation, about why this license is not necessary for hairbraiding. But they were completely intractable. They were unmoved. They said, 'You have to have this license in order to braid hair.' So, we represented her. That is, I do, represented her. And succeeded in having that law changed, in Utah. So, that's the process that is often required in these states--that you'll either have to go to the legislature and try to get an exemption, or you have to sue the state in order to have these changes made through the courts.

34:31

Russ Roberts: There's a whole bunch of different examples in the book of different professions where this is the case. And, you know, I'm sympathetic to your viewpoint. And, you obviously work for the Institute for Justice, so you are more--it's probably a little more likely that you are going to see this as a self-interested, Bootlegger problem rather than an idealistic, protect-public-health-and-safety Baptist kind of legislation in various places. But, you go through a lot of different cases--selling caskets being an example. Being a tour guide. Selling liquor across state lines through the mail--through, across the country. And, in a lot of these cases, it's pretty clear to me--unless you've misrepresented; and I doubt you did that--there's not much of a justification here, except to keep people out. So, talk for a little bit about the challenge of going after this state by state, or city by city--and the case may be of city taxicabs, or limousines, another example. You are going state by state. All this stuff seems to me to be unconstitutional. It just seems to be--it's the kind of thing where if I told my kids, when they were young, like 12, they'd say, 'Well, that's not--that can't happen in America.' Because they have some romance about freedom and that we're a relatively free country. But, it turns out it's a big problem. And it's a huge--it's actually a very common, increasingly common use of government power to keep people out of these jobs. Shouldn't this, all of this, just be unconstitutional? Government can't just win.

Dick Carpenter: Yes. Well, that's certainly the position that we take. The challenge here--there are a couple of challenges. Number one: There are different views of the Constitution. So, there's a well-known law professor, Randy Barnett, at Georgetown, who talks about two competing visions of what the Constitution says. One is the presumption of liberty, the presumption of freedom. That is, not surprisingly, our view of the Constitution, and that says that people should be free--in the case that we're talking about right now--people should be free to pursue the occupation of their choice without unnecessary government intervention, unless and until it is shown that there is a reason--a need--for government intervention to protect the public. That's one view. The other view is that, the government should have the ability to intervene, unless and until the person who wants to work freely shows that what the government is doing is unconstitutional. So, you have these two competing visions at work. And so, these two competing visions play out on a day-to-day basis in courts--certainly somewhat in legislatures, but certainly in courts--where there are, for many years now--really since the late 1930s and certainly since the 1950s, this idea that there is a proper, necessary role of government to regulate here. And so this idea of the presumption of constitutionality of government intervention has prevailed for a number of years. Which was different from many, many years before that. At the Founding and up until the late 1930s, the opposite prevailed. That is, the notion of the presumption of freedom--people were free to choose and to work in the occupation of their choice without unnecessary government intervention. So, we've had these competing visions of the Constitution going back and forth. And so, we're obviously in court trying to advocate and push courts toward this presumption of freedom, and this presumption of liberty. But, on the other side, the licensing proponents are--they are the concentrated interest, whether in the legislature or in the court. They are the power of the concentrated interest. So, in the legislature, for instance, they go and they advocate for the creation of the license. But, then, when the license is challenged--so, if there is a reform effort like Melony Armstrong attempted in Mississippi or Justina[?] did in Utah, if there is an effort to reform in the legislature, the power of the concentrated interest comes into play. And so the amount of campaign in order to protect that license--they'll have industry data, capital; they'll bring many members of the industry and they'll hold a rally on the steps of the Capitol. They'll do personal lobbying in the State Legislators' offices. They'll make strategic campaign contributions. They'll give special awards to legislators. They'll invite legislators to the workplace. They'll groom these relationships. And they'll get testimony in committee rooms: why these licenses are so necessary. And they'll fill the rooms up with members of the industry. This is what I mean by campaign. And that's the power of the concentrated interest: bringing to bear that influence on state legislators who don't hear from the other side. The consumer--you and I--we are not represented in the room when these decisions are being made.

Russ Roberts: And why not?

Dick Carpenter: Because, number one, we don't know. These are things that are happening in some state capital somewhere. Where, most of us are busy doing our lives. We're busy working, raising our families. And so we don't even know that these things are happening. We are--somewhat innocently--relying on our elected officials to represent our interests. But, as Public Choice theory tells us, the elected official has his or her own interests. Which aren't necessarily the public's interests. Their interests are being re-elected. And so, there's an implicit quid-pro-quo that happens. The person--the elected official will grant the license to this group, the special interest group. And the group then, implicitly will support this elected official at the next election--just as an example. So, the person who is elected representative is not always necessarily doing so.

40:41

Russ Roberts: Well, the key also is our stake in it is relatively small. I might want to get my hair braided, but that's one of a--it's a small part of my life. If I'm a cosmetologist, it's a big part of life. It's my livelihood. So, I'm going to be vigilant and zealous in keeping out competition. And, of course, the people who might benefit from the repeal of the license might not even know that this is something they are interested in right now. They might not think about being a hair braider. But they might, down the road. And then it's too late; they might have missed the hearing because that wasn't on their radar screen at the time. There were only a few of them in the actual practice of the occupation. What's interesting to me, in the chronicle of the book of what often happens: It's usually a complicated process. There's some hurdle, some bottleneck put in place that has no relationship to public health and safety. There's not a very good case to be made for the license, say, or the terms of the license. There could be some--there are terms of the license that might make sense. But the actual terms turn out to be clearly restrictive without any benefit of public health and safety, let's say. And so what happens is that you--IJ--or somebody bring suit, saying, 'This is a bad law. This is a bad legislation. This is a bad license restriction requirement.' And the judge will often say, at least in some of these cases, 'Yeah, but the legislature voted on it. And therefore I'm not going to interfere with it.' And that's where I brought up the constitutionality part. And we had Clint Bolick on the program, a long, long time ago, talking about: What's the appropriate role for a judge in that setting? But, my personal preference would be that the judge represents the Constitution, and say, 'Well, it seems like this is a bad law.' Of course, what ultimately happens is it gets challenged, is appealed, if you have the money; and if IJ has the time and the resources it will get appealed and eventually [?] can get to a very high level. I would just hope that some of those higher level decisions might influence some judges down the road to be more willing to strike down some of these licenses that are not productive. Is there any evidence for that?

Dick Carpenter: Yeah. That's certainly the goal. Legal change generally is made one case at a time, one decision at a time, setting precedent that can build upon itself in future decisions. So, we talk about caskets as an example in the book. So, in many years, in many states if you wanted to sell a casket you had to be a licensed funeral director. Now, let's be clear on this. A casket--

Russ Roberts: is a box--

Dick Carpenter: is a box. There's nothing mystical or magical about a casket. In fact, right now, anyone listening could take their phone and order a casket from Costco and have it delivered to your house.

Russ Roberts: Now, there's an exciting opportunity. Thanks for letting us know, Dick. That's the kind of service that EconTalk listeners expect from this program and from our guests. Why do you mention that?

Dick Carpenter: Well, you said you wanted to make EconTalk better in 2018.

Russ Roberts: That's true. We're doing it. We're doing it. And, why do you mention that I can order one from Costco?

Dick Carpenter: Well, because the funeral establishment will tell you that you have to have all of this specialized knowledge to sell a casket. That there's something really specialized that requires all of this training to be a licensed funeral director in order to sell a casket. When, in fact, there isn't anything specialized that you need to know in order to sell a casket. But, for many years funeral directors prevailed; and so, if you wanted to sell a casket you had to be a licensed funeral director. So, we challenged that in court, and had a great victory in Tennessee in what was called the Craigmiles Decision--pastor Nathaniel Craigmiles was our client. And so that decision, although it was a number of years ago, has now been very instrumental in challenging subsequent casket laws. And also other laws as well, in that that decision was talking about, 'Well, there's no real, rational reason why this law is necessary. Why do you need all this law in order to sell a casket?' That's kind of at the core of that particular decision. And so, with that decision, IJ attorneys can then use it again and again to say, 'Look, a judge, this judge, has already said this is irrational, all these requirements. And so you, Judge, now the case before you at this time, you should apply the same type of standard in this type of occupation--whether it's caskets, like we did in Louisiana with monks who wanted to sell caskets there, or other types of similar occupational licensing cases.' So, build one case after another. Build a precedent to try to encourage judges to do real judging, to actually look at the circumstances and make a decision.

Russ Roberts: And as a result, Costco could sell caskets. It sounds like 'she sells seashells by the sea shore.' It could be a good brand--a tongue twister--'Costco--'; I can't do it. I'm in trouble already. But, Costco can sell caskets. And, has the price gone down?

Dick Carpenter: Yes. Competition works. So, in the funeral industry, the price of caskets actually was marked up anywhere from 250% to 600%. And even in industry publications--when I was doing research for the book--I found industry--by 'industry,' I mean, like funeral establishments, funeral publications and so forth, magazines--where authors would say, just say, to themselves, to other funeral establishment readers: 'We all know this is where we make our money. The casket is where the money is made.' And so,--

Russ Roberts: Leveraging often the guilt of the surviving loved one.

Dick Carpenter: Sure. Sure. Yeah. And so, this 250-600% markup was a significant increase, but with the introduction of competition, now you see casket sales are much lower. The example we talk about in the book with Pastor Craigmiles was, when he had to bury his mother-in-law, he paid a significant amount--$2000 or $3000--for a particular casket for his mother-in-law. And then, after that, while traveling in New York he found the exact same casket for something like $800. New York was unregulated--you could sell caskets without a funeral director's license. And so, competition definitely does, as in technology and many other sectors, it definitely drives down prices.

47:16

Russ Roberts: I want to look at wine sales. It's not a licensing example but it's an example of a bottleneck--literally. This is the bottle of wine; and it's also just another example of where the existing industry tries to use the power of the state to restrict competition. And it's also a beautiful bootlegger and Baptist example because it's about alcohol, so I kind of was drawn to it. I was shocked in reading about this--'shocked' is too strong, but I was intrigued and surprised--by Rockefeller's role in Prohibition and the removal of Prohibition and how that ended up affecting the beer and wine market going forward. So, try to tell some of that story. It's a complicated story, but it's a very interesting story.

Dick Carpenter: Right. So, the movement, the Temperance Movement that eventually resulted in Prohibition was a long one. And there were many who owned businesses--industrialists like Rockefeller and others--who, throughout this kind of growing temperance movement came to believe that alcohol was a significant problem: it had many social ills. And so, Rockefeller and others pushed strongly for Prohibition as a way to solve this social problem, to solve the social ill. Well, as it turns out, it came with its own other problems. And that was: it created a sense of lawlessness, as it created this black market for alcohol. And so, although Prohibition--

Russ Roberts: And alcohol--excuse me. Rockefeller was a bootlegger and a baptist. He had a financial motive: He thought workers would be more productive if they were less drunken. But he also was a lifelong teetotaler--meaning, he didn't drink. Correct?

Dick Carpenter: Yes. [?] also right.

Russ Roberts: Which is also interesting. I just thought that was kind of cool. Keep going.

Dick Carpenter: Yes; he was both economic- and principle-based in his objection. That's right. And so, he was instrumental in funding and pushing for Prohibition, but didn't really think through--I don't know that people even had the language at the time that we do, today, when talking about unexpected consequences. Certainly people didn't think about the unintended consequences of primarily the lawlessness that was created as a result of it. And so, after a while, as Prohibition kind of ground on, Rockefeller and others became--began to realize, they came to understand that it wasn't really solving the problem as they had hoped it would. And was creating all of these other problems that they had not intended. And so, here's this man who was instrumental in the creation of Prohibition and eventually kind of threw in the towel and realized: This isn't accomplishing what we wanted, and is creating these other problems. And so, he gave up his support for Prohibition and led an effort to repeal. So, with the repeal of Prohibition, he and some colleagues of his--they did this study toward liquor control that looked at how we might regulate the industry. And so, his two colleagues recommended two different approaches. One approach was that states would control the sale of alcohol: that, if you wanted to buy alcohol you had to go to a state-owned or state-sanctioned firm--retail firm. A second approach was called the three tier system. And the idea was that they were going to create this separation within the alcohol industry. So, the alcohol industry that's Producers; then they have Retailers who are selling the alcohol; and then the third tier is the Distributer. So, this three-tier system is created, with this Producer, Distributor, Retailer. And the idea was that they would, by law, say that the Distributor had to be between the Producer and the Retailer; and that no one could have a financial interest in multiple of those three tiers. You couldn't be both a producer and a distributor. You couldn't be both a producer and a retailer. And the thought here, was, that they would be solving a problem that existed before Prohibition. Before Prohibition, you could be both a producer and a retailer. Or a producer and a distributor. And then, the belief was, that because of that, that the producer and the retailer, who could be one, they were out there pushing alcohol too much. That they were instrumental in the over-consumption of alcohol. And so, by creating these distinctions, these legal distinctions, where one could not be the other--you could be a producer but not a retailer, a distributor but not a retailer--that it would reduce overconsumption of alcohol. That was the logic. It's debatable, but that was the logic, nonetheless. And so, the Distributor, by law, is put in between the Producer and the Retailer. And, as a result, by law, what they are doing is essentially injecting a bottleneck into that process. And so, the Distributor enjoys the ability to mark up the cost of the product as much as 30%. They serve no particular function reducing the overall consumption of alcohol.

Russ Roberts: Well, they do a little bit. Because they make it more expensive, potentially, which keeps consumption down, right?

Dick Carpenter: Yes, of course.

Russ Roberts: I'm not sure that was the literal intention of that system, but it does have that effect.

Dick Carpenter: Right. I suppose, arguably, that could be true. But, they've inserted the Distributor in here, created this bottleneck, and increased costs. And so, these are the two forms of regulation now that we see, that predominate. The 3-tier system is more common across the states. More than 30 states have it. But the state-owned or state-regulated or state-monitored system is also true in some states, like Virginia, as well. And so, this is how alcohol is regulated. Many people don't realize that this is how it's regulated, and that the price of their wine, for instance, is going to be significantly greater by as much as 30% as a result of this type of regulation. And so, wineries would particularly[?] sell to retail stores; but they would have to go through a Distributor by law, in 3-tier states. They couldn't sell directly to a retailer. They would have to go through a Distributor. That wasn't a significant problem. But a second problem was: As the wine industry and consumers of wine became interested in going to wineries and buying directly from the [manufacturer?]--the producer--rather than from a retailer, there was this new, burgeoning market. These producers could actually sell directly to consumers. And people would travel. So, our client, Juanita Swedenberg, she had winery in Virginia. She had clients who would drive down to Virginia from New York. Or from Michigan. Or from Maine. Or from other places. And they would love the wine that Juanita sold, and so they would want to buy directly from her. They couldn't get her wine in New York. No distributor would sell her wine in New York, or would provide, retailers would provide her wine, in New York.

Russ Roberts: It's important to mention--because she was just small. She's a boutique.

Dick Carpenter: Yeah, that's exactly right. Yeah. The Distributor has an interest in representing people who are big players. Because they want to move as much product as possible. So, they don't want to represent some small winery in the middle of Virginia. They want to sell products that are going to move a lot of volume. And so they are not going to represent people like Juanita or Dave--our other client, David. So it was hard for those consumers in New York or other places to get wine from Juanita. And so they could buy directly from her. She could ship her wine directly to them; but then she discovered that that was illegal. Because she wasn't going through a Distributor in order to do so. So, that was the--those were the facts of the case, that she was saying, 'This is ridiculous. Why do I need to have a Distributor just to sell directly to a consumer in New York? Or anywhere else?'

Russ Roberts: And of course, normally it wouldn't matter much. Because it's hard to find out about every little niche winery. But, with the Internet starting to grow in the 1990s you had the opportunity to get the word out, to spread information, to have these smaller both custom breweries and wineries finding a market for their product that their Distributor might not be willing to deal with it, because the return is smaller to the fixed costs of adding a client. And the--the great thing about this example is that, you need an excuse to explain why you shouldn't be able to buy wine where you want. So, if you are in New York State, why shouldn't you be able to import a bottle? You can drive down to Virginia and carry the wine home. Why can't you have the winery ship it to you? And of course the answer is, 'It's dangerous.' Explain.

Dick Carpenter: Well, the argument, for the Distributors, the argument is, 'Well, it's dangerous because, who knows who is buying that wine? That could be a 13-year-old boy ordering that wine and having it delivered. And that 13-year-old boy is going to buy this boutique wine from a vineyard in Virginia and get drunk, drinking a $50 bottle of wine.' This is the argument.

Russ Roberts: 56:55 Well, it's a good argument. Because we know that, 'Thirteen-year-old boys without this would never get access to alcohol. There's no teenage drinking anywhere in America up until this happened. And you can just be alert or why.' It's such an absurd argument. Of course, the 3-Tier system doesn't protect teenagers, either. So--

Dick Carpenter: Well, not, yeah, let me interrupt this to say, not only is it absurd because it's not like they can't get alcohol from other places; but what 13-year-old boy is getting drunk on $50-bottles of wine?

Russ Roberts: One who has access to his parents' credit card. And--you know, I guess it's conceivable. We're laughing about it, but it's possible that a kid could use mail order to get alcohol. That kid might have trouble generating a fake ID [identification] or having a older brother, or friends who might be able to do that and get access to alcohol. So, having it delivered to your house is a lovely idea as long as your parents don't check the credit card bill, and aren't home when the delivery comes. And say, 'Jimmy, what's in that box?' And he says, 'Comic books.' 'That's awfully heavy for comic books.' And you open it, and there's $50-$100 bottles, four $50-$100 bottles of wine to save on the shipping.

Dick Carpenter: Well, there's an easy--I should say, there's an easy fix for that.

Russ Roberts: Yeah. Explain.

Dick Carpenter: And that is: and the easy fix is that the shipper, whether it's UPS [United Postal Service] or FedEx, or whatever--the shipper just has to, cannot deliver the goods, cannot deliver the box, unless it is a). signed for, and b). signed for by someone is of a certain age.

Russ Roberts: Right.

58:33

Russ Roberts: So, that's just a great example of how a lot of times we might have sympathy for the thrust of a particular regulation; but the way that it actually gets implemented is done to protect someone who is not the one we are claiming it protects. So, that kind of regulation would be okay. It might be expensive: UPS doesn't want to have to check the age and prove or have an ID or all that for the person who signs for it to prove that they are over 21. But, you could argue that's problematic. But, certainly it's problematic just to say, 'No wine sells across the United States lest a teenage, poor girl, has access to alcohol.' And, of course, it's ultimately an empirical question. [More to come, 59:12]

Comments and Sharing



TWITTER: Follow Russ Roberts @EconTalker


COMMENTS (26 to date)
Szymon Moldenhawer writes:

Amen. Right on the Money pun intended :)
As a member holding clinical license of profession that has recently(40 years ago) got licensed I have seen how “Baptists” of my profession has increasingly bottle necked my field. I graduated from approved Bachelor degree and 3 months clinical training . Now it takes 6 year Ph.D. approved with year non paid “residency” . The only result is hundred thousands more debt for the new entrants and decreased quality of service since education is pushing research not actual techniques resulting in lower quality care.
I remember that during my education how academic professors were agitated us the students to aggressively lobby for stricter licenses and we were openly told if we want higher wages we need decrease access of unqualified or similar profession into our field.
Depressing how this neo - medieval guild like mentality seems to be reinfecting the the post industrial service economy and this a world wide phenomenon.
US seems to be only country were at least there are institution trying to hold it back.
Presumption of freedom is almost absent in European Union or developed areas of Asia.

Jakob writes:

Interesting discussion.

One other aspect of licensing that you did not bring up is the air of legitimacy it brings to a field. Especially in "alternative" (i.e. non-scientifically-proven non-effective) medicine, licensing is something hotly sought after by practioners as a way to look more legit and more like real doctors and nurses. Fortunately, here there is rather often opposition from more sane forces. There are also sometimes some small benefits like mandatory insurance policies that do potentially help customers. In the end, it does come down to "earn more money", but maybe not so much by bottlenecking as by status enhancement.

I wonder about the international outlook on trends towards or away from licensing? I know that in Scandinavia the trend is very clearly away, and has been since guilds were abolished back in the 1860s... In the EU, there is a lot of work on making the real licenses that matter portable and translatable (i.e., healthcare) to avoid the "cross the state line" issue. So I am not sure the "presumtion of freedom" is all that US an idea - other countries are far more inclined towards free trade as an ideology.

Finally, it seems that there is a pattern in recent Econtalk episodes where it seems that a problem is pinned on "the government" - and the solution is presumed to be less government. When it really sounds like it should be better government and a government strong enough not to be in the pockets of economic interests. A weak government is not necessarily better for economic and individual freedom, rather often a strong and well-run government can be the guarantor of such freedoms.

It can go either way - but it is rare to see good freedom for everyone with a weak government as that tends to make it possible for strong individuals to impose themselves on other people. "robber baron capitalism" is worse than regulated capitalism as I see it.

Kevin Ryan writes:

So, having listened to this I am unsure whether I should conclude that, in the spirit of Jakob’s last comment, I should think that what is needed is ‘better government’ which would aim to only have occupational licensing etc where it is justified and to make the standards appropriate and consistent in these cases.

However my sense from what was said was that this was not really the approach in which Carpenter and IJ were interested, as they seemed to be advocates for the removal of all licensing. I did not get the impression that there was any case where IJ would actually support retention of licensing.

And so the alternative I should consider falling in behind is to support removal of licensing in all cases, trusting that the other controls, whether market-based or otherwise, will produce an outcome that is no worse.

Behrang Amini writes:

Very nice episode, and I agreed with a lot of what was said. The example of the hair-braiding perfectly captured the ridiculousness of licensing and the issue of licensing creep.

I do think the opposition side was not charitably represented.

For example, it can be argued that the main point of licensing is not that it prevents incompetent people from getting in, but allows (in theory) bad people to be disciplined or kicked out. For example, a hairdresser (sorry, cosmetologist) that doesn't put the combs in the blue liquid or one that reused disposable blades. A doctor who acts unprofessionally, etc. Ratings only go so far.

Another example: not allowing ex-cons to hold occupational licenses. I agree that this is a horrible injustice, but imagine what would happen if a licensed repairman who is an ex-con comes into your house and robs you (or worse). Or a doctor with a history of sexual assault. The boards that licensed these folks will be under a lot of pressure from the public to stop allowing ex convicts to hold licenses.

The free-market rating/reputation takes a while to build up. For sensitive occupations (again, maybe not the straw man of hair-braiding), it matters that the people are pre-selected to be in, rather than post-selected to be kicked out.


Also, the rating your doctor's visit is not because people go on Yelp! or Google (even though they do), but because it's mandated by the government, and reimbursements depend on these ratings. This, of course, has its own unintended consequences. For example, you decline to prescribe narcotics or a heavily advertised drug and your rating goes down.

Will writes:
"I agree that this is a horrible injustice, but imagine what would happen if a licensed repairman who is an ex-con comes into your house and robs you (or worse)."

This is a very poor argument for licensing. Imagine a licensed repairman who isn't an ex-con who comes into your house and robs you. This happens all the time at rates not much higher than for ex-cons. Is the "horrible injustice" you inflict on the ex-cons worth a very small improvement?

Fredrik writes:

Another example: I live in Sweden with a Japanese wife. She is a licensed kindergarten teacher in Japan (with working experience there). In Sweden, license for kindergarten teacher is also required, but the Japanese license, evaluated by authorities here, have close to zero value - she would have to do 80% of the three year college degree + half a year of internship to obtain it.

The articulated goal of Swedish ministry of Education is that all employees at daycares and kindergartens in Sweden are licensed teachers. However, the job is attractive mostly to people that don't like another three years in a classroom. So in practice, licensees are scarce - people like my wife are employed anyway, considerably less paid and with no other benefits like job security.

I don't say that the present condition is necessarily wrong, I just wanted to provide another example how licenses may exclude skilled labour force. It is also far from clear that the licensed teachers are more competent (though I am obviously biased).

A side point is that the public school system is quite politicised, so educated teachers are taught to promote ideas that are controversial and even worrisome for many parents. People like my wife provides a diversity of ideas and experience to kids that educated teachers may lack.


Kevin Ryan writes:

On the subject of customer ratings, I might say that I was very optimistic about the power of these. But I am now less so as I observe Goodhart’s Law kicking in to undermine their value by potentially having these inflated in some cases.

A couple of examples from my own experience:-

When looking for a climbing machine last year I found there was a problem of bogus ratings being given, which then led to attempts by others to adjust the raw ratings to estimate a genuine one.

As an avid listener of podcasts I often hear pleas for ‘please rate and review our podcast, 5 star ratings only’

PS Grateful if the duplicates of my earlier post could be removed

Jakob writes:

There seem to be three issues here that are linked...

* Licensing

* Regulation in other ways

* Consumer choice as regulation, based on "ratings"

It would seem that consumer choice can definitely help police a market to some extent... but even with Internet ratings I feel that the providers tend to have the upper hand here. I rarely see many useful reviews or ratings when I search for services... you need a lot a volume for them to make sense, and a small hairdresser in a small town just won't get all that much.

I much prefer "issue-based" regulation over licensing. Better to lay out what is prohibited/mandatory in laws, and then punish practitioners who break such laws and regulations. Including maybe forbidding a person from doing a certain job after they prove themselves dangerous. You do not need licensing for that, and you do want to have it apply to all fields, not just those with licenses that can be revoked.

Overall, I agree that licensing makes little sense in most cases. For Law it just sounds like a tradition, but for medicine it might be more useful... but even that really needs to be proven.

In most cases, a university degree or other educational accomplishment is a better indicator as to whether someone is worth hiring and can be expected to do a good job. That replaces the need for most licensing in practice I think.

Patrick writes:

You interview with Dr. Carpenter was very interesting.

Something that he may find interesting was a project between the Submarine Base in Kings Bay, Georgia with a local school where sailors tutored students having difficulty with mathematics. The sailors had no advanced science degrees, no teaching degrees and no teaching certificates or licenses. Those who I knew that participated with this program were graduates of the Navy Nuclear Power Program, so their training and occupation required knowledge and application of advanced mathematical reasoning ability. This appreciation for the application of mathematics within an occupation may be hard to appreciate for a teacher who trained at rigid academic environment, but helpful to demonstrate the importance of mathematics and sciences to students.


I have worked in several states in the South East as a physician and have often thought that a national licensing board would be more convenient; but I think that the State Licensing Board does have a useful purpose regarding establishing policies for the application of medicine within a state.

For example many state licensing boards are issuing rules to restrict prescribing controlled substances, but it seems that other organizations are allowed to influence physician practices in a way that may be contrary to what the State Boards are trying to achieve. An example of an outside influence regarding a medical practice within a state is the Joint Commission (JCAHO) policy regarding pain management. Adding pain as a “fifth vital sign” and advocating for increased use of opiate medications for hospitalized patients has likely increased pain medication prescribing. A good summary of this is reported at the Skeptical Scalpel.

http://skepticalscalpel.blogspot.com/2017/06/the-opioid-epidemic-what-was-joint.html

In this case I hope that the State Medical Licensing Boards are able to establish practice standards which may allow physicians to resist agencies such as the Joint Commission who may promote policies that may be harmful to patients.

Brian Mason writes:

The argument for licensing is essentially that consequences, reputation, demonstrated competence, market discipline ... is not enough. A license is vital for health and safety; nothing else will suffice.

That licencors are unlicensed gives the lie to the whole argument.

Some may be license as a cosmetologist say but are not licensed as a cosmetology-licencor. Recall that competence, knowledge, experience ... mean nothing one must be licensed.

Eric Chevlen writes:

I agree with Roberts and Carpenter that many—most?—occupational licensures are harmful to the public, and should be abandoned by the state legislatures which enacted them. But I am reluctant to agree with Carpenter that these bottlenecks are unconstitutional. What provision of the Constitution is being violated? It is not clearly evident to me that the common weal is better served by our robed masters of the judiciary than by elected legislators. Justice Thomas emphasized in his dissent in Lawrnce v Texas that states may “uncommonly silly” but nonetheless constitutionally invalid.

D writes:

One must consider that it is possible that the power of the boards overseeing license enforcement can be both corrupt and unconstitutional. It is also possible that some board members lack the experience and education to even begin to understand the profession they have authority to regulate. Perhaps we need a new license requirement to become a board member. Consider this article......https://www.theatlantic.com/politics/archive/2017/05/license-to-speak/525450/

Luke writes:

My wife works as a ND. She received her license after completing a four year, post-grad medical degree and passing three rounds of board exams.I asked her why the ND lobby group wants to extend ND licensing in the US (currently in about 20 states) rather than removing existing licensing barriers. It turns out that someone can obtain a "naturopath" certificate online, or be a certified "herbalist," without having a medical degree, so Jakob is partially correct that licensing also is about legitimacy and separating the wheat from the chaff, so to speak.

Generally I agree with Russ that licensing, especially in the occupations mentioned (hair braider, locksmith, etc) are net negatives, but I wonder if Taleb's work might suggest some fields (maybe medicine and legal) should be restricted so as to avoid extreme (albeit rare) consequences.

I don't find customer reviews and ratings all that helpful for providing any value. How many times have we seen something like this: "This movie was good, but not as good as the original. 10 stars." or "Mostly good, but didn't like the ending. 1 star."

Even Uber ratings are useless. Their suggesting stars are as follows:

1 Star = Terrible
2 Star = Bad
3 Star = Disappointing
4 Star = OK, but had an issue
5 Star = Give a compliment

3 Stars should be "meets expectations," not disappointing. If the car is clean and the driver is not unfriendly, and I am picked up and dropped off where I expect,, that should be 3 stars. 4 Stars if the driver knows his/her way around the city and doesn't rely solely on GPS. 5 Stars if all of the above + luxury vehicle. Instead, everyone has a 4.5+ rating and there's no room for anyone to really distinguish themselves.

Point is, I don't see this kind of feedback as a valid way of regulating unlicensed occupations.

Mike writes:

Personal confusion related to shipping alcohol over state lines: I was in Napa Valley and each winery I visited had a sheet they would consult if a patron wanted to ship a bottle or case to their home out of state. If your home state was on the list, they could legally ship alcohol to you. My state (Indiana) was not on the list, meaning they could not ship their wine to Indiana. I was forced to accept this and bring home only what I could carry in my checked luggage.
Fast-forward about six months and my friend gifted me a subscription to a California-based wine club. I was shipped two bottles per month from Napa/Sonoma-area wineries, along with some literature on the wineries, etc. The delivery driver (FedEx/UPS I don’t recall) asked for my ID each time the package was delivered to verify that I was older than 21. This indicated to me that the wine club wasn’t trying to hide the fact that they were shipping alcohol, thereby skirting the law. So why could they ship it to Indiana, but I couldn’t? Maybe because they’re a third party??

Andy McGill writes:

One group of people that move across state lines a lot is military spouses. If a spouse holds a cosmetology or other license in one state, they often then move to another state and face getting a new license before they can work, and they will only live their two or three years.

Alaska has a lot of military spouses and has laws to expedite licenses for military spouses. https://www.commerce.alaska.gov/web/cbpl/ProfessionalLicensing/MilitaryLicensing.aspx


A bill has been introduced to give temporary licenses to military spouses that hold licenses in other states. http://www.ktuu.com/content/news/Prefiled--468709523.html

Dan Eisenberg writes:

A recent large scale analysis shows that licensing slightly LOWERS wages for people in those professions and may be advantageous for women and minority workers (https://workinprogress.oowsection.org/2017/12/28/occupational-licensing-has-no-effect-on-wages-but-does-increase-access-to-occupations/). Both of these findings seem more reliable than the contrary anecdotes talked about in this show. I hope you can invite Beth Redbird on a future show.

Eric writes:

Over the past year I’ve been teaching myself how to fly small unmanned aerial vehicles (drones) in the hope of transitioning away from my current career. The UAV world is very interesting because even though small aircraft predate manned flight (the Wright brothers made extensive use of models when designing their flier), the large adoption rate of these aircraft, especially for commercial use, has been a regulatory nightmare for the FAA. Basically the FAA has always claimed that any airspace above the dirt is considered to be regulated by them. There have been a few court cases that attempted to define aerial trespass by aircraft, but nothing that was considered precedent setting. Up until now if you lived in controlled airspace (like near an airport) in theory the FAA could bar you from planting a tree. In practice, because manned aircraft are so large it wasn’t practical to attempt policing the airspace from ground level to around 400 feet or so. And then there’s all the local municipalities who also have some ideas about where you can fly drones, but the FAA says they don’t have jurisdiction. At least the locals can define where you can take off and land.

All that changed with small UAVs. Now there was a reason to police low altitudes, especially near airports and helicopter landing pads. The model aircraft crowd was pretty good a self-policing themselves (and still is, who wants to watch the hours of time spent building a scale model literally crash and burn?), but the newcomers, who weren’t introduced to the traditional hobbyists and their code of conduct, figured it was “game on.” And professional photographers and cinematographers were starting to use drones as well, and they had no interest in flying in traditional hobby areas, they had work to do at a location -which might very well be closer than comfortable distance away from an airfield.

So the FAA created a certification program, as well as a test for commercial pilots, known in the industry as “part 107” for the section of the federal register that pertains to small UAVs. The hobby community got Congress to bar the FAA from making any rules limiting hobby pilots, however that’s been changed recently and will probably continue as more incidents involving drones and manned aircraft get in the news.

The industry reaction to part 107 has been mixed at best. Many pilots who took the time to get the certification feel it is a joke that has no relevelence to flying SUAVs (most of the test material is about airspace maps and how to read weather reports), and there’s no enforcement or montioring capability so unless an unlicensed pilot causes damage or otherwise draws attention there is no downside to flying for pay without the 107 certification. And since there’s no flight test or other real way to know if a pilot is competent it really does nothing to improve airspace safety.

Anyway, just wanted to pass this along, since it is an example of real world bottlenecking being created in real time. Most of the UAV pilots I know are actually OK with some regulation or registration, although they also see that without any enforcement it doesn’t look like anyone is really interested in limiting supply of pilots either. More like a dot-the-I’s and cross-the-Ts requirement, especially if you are running your own business.

JK Brown writes:

Ah, the innocence of a a century ago, when Americans, at least men, had liberty. As can be inferred from the excerpts below, when women's rights in the labor force came to the fore, it was not a lifting of women to the level of men, but with the unions leading the way, it was the reduction of free men to the "wards of the state" status women, at least working class women, had been ruled to be.

All in all, the 20th century increasingly resembles not the enlightenment or classical liberalism, but the medieval times of wage controls, labor restriction, villeinage (in regards to children), etc. Also, the universities seem to be shifting to the medieval institution as a society for the protection of "scholars" and exemption from some requirements of the average citizen, rather than then Scottish tradition which emphasized teaching students. We should note that many of the men who started the industrial revolution as well as the field of economics were graduates of the Scottish universities.



p73
In the same way the union idea of having all trades under the control of an organization was carried to its extreme result in the Middle Ages also, so that the guilds became all-powerful; they imposed their rules and regulations to such an extent that it was almost impossible for any man to get employment except by their permission and under their regulation, or without membership. They naturally developed into wealthy combinations, more of employers than of journeymen, until they ended as the richly endowed dinner-giving corporations that we see in the city of London to-day. In France, at least, they were considered the greatest menace to labor, and were all swept away at the time of the French Revolution amid the joy of the masses and the pealing of bells. Unfortunately, our labor leaders are sometimes scornful of history and unmindful of past example; the fact that a thing has been tried and failed or has, in past history, developed in a certain manner, carries no conviction to their minds.

p209
For instance, it is a primary principle that an English free man of full age, under no disability, may control his person and his personal activities. He can work six, or four, or eight, or ten, or twelve, or twenty-four, or no hours a day if he choose, and any attempt to control him is impossible under the simplest principle of Anglo-Saxon liberty.

Yet there is possibly a majority of the members of the labor unions who would wish to control him in this particular today; and will take for an example that under the police power the state has been permitted to control him in matters affecting the public health or safety, as, for instance, in the running of railway trains, or, in Utah, in labor in the mines. But freedom of contract in this connection results generally from personal liberty itself; although it results also from the right to property; that is to say, a man's wages (or his trade, for matter of that) is his property, and the right of property is of no practical use if you cannot have the right to make contracts concerning it.

The only matter more important doubtless in the laborer's eye than the length of time he shall work is the amount of wages he shall receive. Now we may say at the start that in the English-speaking world there has been practically no attempt to regulate the amount of wages. We found such legislation in medieval England, and we also found that it was abandoned with general consent. But of late years in these socialistic days (using again socialistic in its proper sense of that which controls personal liberty for the interest of the community or state) it is surprisingly showing its head once more.

p 213
You can have regulation of the hours of labor of a woman of full age in general employments, by court decision, in three States (Massachusetts, Oregon, and Illinois), … but the Oregon case, decided both by the State Supreme Court and by the Federal Court in so far as the Fourteenth Amendment was concerned, after most careful and thorough discussion and reasoning, reasserted the principle that a woman is the ward of the state, and therefore does not have the full liberty of contract allowed to a man. Whether this decision will or will not be pleasing to the leaders of feminist thought is a matter of considerable interest.
Muller v. Oregon. 208 U. S. 412.

Popular Law-making: A Study of the Origin, History, and Present Tendencies of Law-making by Statute, Frederic Jesup Stimson (1910)


The medieval university differed in many respects with our idea of a modern university. It was primarily a guild of teachers and scholars, formed for common protection and mutual aid. It was a republic of letters, whose members were exempt from all services private and public, all personal taxes and contributions, and from all civil procedure in courts of law. The teaching function was secondary, and often entirely overlooked. The Scottish university from the beginning, however, emphasized the teaching function, and created an atmosphere academic rather than civil or political.

Scottish university, 'Scribner's Magazine, 1901

Jakob writes:

Only one comment on licenses in the US: they should be federal level or not exist at all, nothing else makes sense. Indeed this whole inconsistent administration across states is terribly old-fashioned. As always, the US mixes modern and antique ideas in a rather interesting way.

Vlad writes:

While I generally agree, licensing is not a 100% bad thing. I think the author and Roberts pound the anti-licensing drum a bit too wantonly.

A fellow soccer team mom that I knew died from a pedicure.

The salon she went to did not clean the soak tub properly. This caused a staph infection which led to her death five days after the pedicure.

The salon had recently let an immigrant relative work there unlicensed. And it was her lack of proper training that led to the infection. During the pedicure a slight cut was made to the skin which allowed the staph to get into her bloodstream.

The case worker told the soccer mom's ex that when people think that the training required to be a cosmetologist is frivolous they're not taking into consideration that some people don't understand the first thing about infections and bacteria. And when you mix that kind of ignorance with a job that job that deals with cutting skin, then you're just asking for trouble. Moreover, the kind of people that strive to become cosmetologists are not always the brightest bulbs in the bunch, or perhaps as it was in my friend's case she came from a rural part of a third-world country where she didn't have the opportunity to learn about bacteria and infection.

Not all such licensing is bad.

Andy McGill writes:

I don't think you would really want a court to be able to strike down state laws just because their rationale "doesn't make sense" or is "unnecessary". That would give courts way too much power.

One thing that Congress could do is to identify vocations were licensing is NOT required and to declare that licensing in those areas would interfere with interstate commerce or interstate travel. Likewise Congress could legislate that if a state wanted to license a vocation, that the maximum requirements could only be X and Y and no more.

Ed Hanson writes:

Vlad

Interesting and tragic story. My heart goes out to the family.

I read this line;
"The salon had recently let an immigrant relative work there unlicensed"

Which leads me to believe that the salon and pedicure were by law under licence and regulation, but in this case it did no good.

Speculating - It is possible that reliance on licence regulation let down the guard of the customer who felt no need to inspect the soak tub and other instruments. And also speculating, I doubt that when the investigation started the soak tub no longer had direct evidence but the conclusion was the most likely source thought of.

Ed

tt31 writes:

Dan Eisenberg beat me to the punch, with a link to evidence. I am highly skeptical of the podcast's assumption that licensing reduces inequality. Certifications are an effective way to counter the assumptions employers otherwise rely on about an individual's qualifications, which too often involve judgments based on race, gender, etc. The article Dan links to points out the importance of understanding the counterfactual, including the barriers to enter into an industry for disadvantaged workers where licensing does not exist. A recent paper by Blair and Change finds occupational licensing reduces both racial and gender wage gaps.

Jakob writes:

The pedicure story is very tragic, but it would seem to not be relevant to licensing. As the podcast made clear, there is no necessary relationship between training and licenses.

What is really needed is that the people doing the job have the proper training. Which is why at least where I live hairdressers typically make a difference between those with an actual degree in the subject and those without. Hopefully, a degree would be standard enough that it would at least be recognized throughout one country, if not in an entire continent like the EU.

As to the hygiene, it sounds like a case of rules and policing just like restaurants - make sure the salon is run properly by regular inspection. Which is pretty much competition-neutral.

Trevor writes:

When I had the stonework done on my house the 2 guys doing the work told me that they had a 3rd employee just for the fact he had a license to do that type of work. He didn't work at it but they paid him so much per job so they could stay licensed.

It would take the guys a couple years of 'training' to get their own licenses so it was a lot cheaper to hire someone to not work that has the license.

Gwen writes:

I recently learned that there are credential organizations for credentialists. For example the Insititute for Credentialing Excellence. It's hilarious.

POST A COMMENT




Return to top