‘The Licensing Racket’ takes aim at professional licensing in America

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, the A BA Journal’s Lee Rawles, and today I’m joined by Rebecca Haw Allensworth, author of the book, the Licensing Racket, how we Decide Who Is Allowed to Work and Why it goes wrong. Rebecca, thanks so much for joining us.

Rebecca Haw Allensworth:

Thanks for having me.

Lee Rawles:

Can you give listeners an idea about your own background and how you came to write this book?

Rebecca Haw Allensworth:

Yeah, so I am an antitrust professor and started out my career in the early teens, I guess you would say. And around that time I had my former antitrust professor approach me and say, it’s always bothered me that professions get kind of a free pass under the antitrust laws. We know the stuff that they do is really anti-competitive, really raises prices and I’d love to write a piece that describes why this is wrong and maybe what we could do about it. And so that’s how I got first interested in the professions and as we were working through our research, we realized maybe this isn’t just a policy piece about how they should be exposed to antitrust liability. Maybe they actually already are through their licensing boards. So that became my first article on the topic. I wrote it with Aaron Edlin, that professor I was talking about. And then we found that we were not the only ones making this argument. The FTC was as well in a case called FTC versus North Carolina Board of Dental Examiners. And that went all the way to the Supreme Court

Lee Rawles:

And you wrote an amicus for that.

Rebecca Haw Allensworth:

And I wrote an amicus for it. And the Supreme Court opinion cited our article, which was a particularly big deal for me because I was pre-tenure. So I just kind of took that football and ran with it and wrote two more articles about the antitrust of the professions basically.

Lee Rawles:

Well, and let’s give people an idea who somehow are not very familiar with FTC versus North Carolina Board of Dental Examiners. What was the issue there and what was your argument?

Rebecca Haw Allensworth:

Yeah, so there’s something called state action doctrine, which sounds like the constitutional doctrine, but it’s not. It’s actually a doctrine within antitrust that says that state regulation is immune from antitrust laws. It’s just the Federal Sherman Act was not designed to reach choices by the state to regulate in the name of the people of the state. So that’s fine if you are a legislature making a law, you can’t be sued over that. But it gets a little bit more complicated when the state hands over regulation to what looks like a private entity because although the Supreme Court thinks that the Sherman Act wasn’t meant to prevent state regulation, they also think that it’s not okay for states to just sort of bless cartels to do what thou wilt. And so then there became this very complicated set of case law in the state action doctrine about what counts as the state for the purposes of this immunity, how involved does the state have to be in what you’re doing to count? And the question in that case was, is a licensing board that’s mostly made up of dentists that has very little supervision from the state, the kind of thing that is of the state because it’s the North Carolina, Carolina Dental examiners, or is it more like a private association that should be subject to antitrust scrutiny?

Lee Rawles:

And many of our listeners are attorneys and some of this might be pinging for them when it comes to bar associations. And just off the top, anyone who is listening who doesn’t know, I do get this comment all the time, the American Bar Association who I work for does not directly discipline lawyers. If you write to us to ask us to disbar someone, we can’t do that. But it’s one of those situations where states hand over a lot of this licensing power to non-governmental officials. And you were an attorney. Can you talk a little bit about that and how licensing when it comes to lawyers works?

Rebecca Haw Allensworth:

Yeah, so lawyers are in this way and maybe in a lot of ways special. They’ve carved out for themselves an even more self-regulatory system for the profession. So every other profession is governed through a practice act that’s created by the legislature. Along with that comes a board to oversee those statutes and to make rules. Those boards in the typical state are subject to sunshine laws. They’re nominally, and this is what the case held, only nominally a state agency they’ll meet in a executive branch administrative building. That apparatus is more governmental even than what happens in law because law is governed through the courts, through the judicial branch of the state, and therefore it’s just kind of whoever’s doing the licensing. As you said, sometimes it’s called a bar association, sometimes it has a more official sounding title. It’s organized not by the legislature under the executive branch.

It’s totally organized under the judicial brand, under the courts. And this matters for state action immunity because lo and behold, when cases were brought against bar associations and licensing boards in law under an antitrust theory, the court said, oh no, this is different. This is not the kind of thing that really could ever be reached by antitrust law, essentially giving themselves the profession of law, total immunity from the antitrust laws for their regulation. So one of the consequences of this system is that I was almost totally unable to observe licensing and law. It’s really private. It’s not subject to the sunshine laws of the state. I was not able to really meaningfully attend board meetings, and therefore we know a lot less about what happens in the regulation of lawyers.

Lee Rawles:

I actually have a personal connection. My late father who was a practicing attorney in Illinois, was involved for many years in that state’s group that would look at attorneys who had done wrong in some way and whether or not to admit them back into practice. He also said almost nothing about that work other than broad strokes. But I thought a lot about that as I was reading some of the things that go on. I do want to rewind for just a bit because I think people need to know what we’re talking about when we’re talking about licensing because you’re very specific about what professional licensing is. And I’m going to quote you briefly that professional licensing is a government granted privilege to work that’s given after a significant investment in human capital measured in months or years without which professional practice is illegal. That last part is important because there are groups that you can have a license, but you also can do that thing without having a license. So you brought up car mechanics, you can work on your own car. You’re not going to be haul off to jail. So can you explain to people what you specifically were looking with with licenses and what makes that definition important rather than a more broad, oh, I need a license to have a car mechanic shop?

Rebecca Haw Allensworth:

Yeah. So the reason why I’m interested in this particular kind of regulation is because it’s really especially onerous. I think the car mechanic example you’re describing, I would call that a certificate and we got to pick different words for these things, but you could think of it like a license, but a certificate I would define as something that you could get and maybe you kind of on some level need to get, if you want to be competitive, if you want to signal to your clients and customers that you’re good at what you do. If you want to get a certain kind of job, you may need a certificate, but there’s still the possibility of practicing without it. And those certificates are usually done privately. It’s usually like associations or groups that say, okay, we’re going to be the board of blah, blah, blah, and we’re going to certify people as specialized in this area, A major area where this is used as medicine, so the specialty boards are not governmental.

And while you cannot claim to be a board certified dermatologist without this because that’s sort of fraud, you could do medical work without that certification. You could not, however, do any medical work without a medical license as granted by the state. So that’s the big difference. And I think if you’re going to get sort of nerdy about, I would think about certification as solving the information problem. So a customer doesn’t know what they’re getting from professional service, they’re going to look for some kind of signal that the person is good at what they do. Sometimes that’s a state license, sometimes that’s the idea. The state has said that you can do this work. Sometimes the certification will do the trick. The problem is that not all problems with the professions are about information. We’re also worried about externalities. So for some professions, we just want to stop people from practicing it if they don’t have that credential.

And that would definitely describe law. It would also describe medicine, but I’m a little bit different in the way that I talk about licensing from a lot of people writing about occupational licensing. That tends to mean any government requirement to work. This could be a eight hour CPR first aid course to be a coach. And I left that out because it’s just not that onerous. It’s just not really the same thing as requiring somebody to go to a year of school to cut hair. And that brings me to why I was so interested in licensing. It’s just like this really expensive barrier to entry. It’s this really big barrier you have to climb over. And that’s going to lead to, as we know, higher prices, sometimes higher quality care, but definitely higher prices. And then the last thing I’ll say about why I’m so interested in professional licensing is because even as I narrowly define it, to get rid of the eight hour CPR course, it still covers I think one in five American workers, 20%. This is tens of millions of American workers more than are in unions. It’s the most important labor regulatory institution in the states, and we know very little about how it really works.

Lee Rawles:

Well, we’re going to take you a quick break to hear from our advertisers when we return. I’ll still be speaking with Rebecca Haw Allensworth about her book, the Licensing Racket. Welcome back to the Modern Law Library. I’m here discussing the book, the licensing racket, how we decide who is allowed to work and why it goes wrong. So Rebecca, you briefly mentioned haircutting as an example of a profession where there is a professional licensing requirement and it really does act as a significant barrier for folks and would love to hear more about that from you. There was an anecdote you started off the book with that really hurt my heart a little bit. So can you talk about that as an example, how this professional licensing applied to hair care impacts people?

Rebecca Haw Allensworth:

Yeah, so I think the story you’re talking about was one of the first licensing board meetings I went to was the barbering and cosmetology board here in Nashville. And I saw an army vet try to get license. He was licensed in another state and could have used that license in another state to get something called reciprocity here in Tennessee. But he had taken, I think that was in Michigan, he had taken the test with the help of an interpreter. He was not a native English speaker. And Tennessee had this rule that you can transfer your license from another state under certain circumstances, but not if you’ve used an interpreter to help you pass the test. And so he took the, I think it was the barbering test in Tennessee a number of times and was unable to pass it because of the language barrier.

Lee Rawles:

And specifically it was a test about the history of barber care, which I’m not going to say is unimportant, but specifically it was not say a test, can you properly shave someone? Can you sterilize your equipment?

Rebecca Haw Allensworth:

That’s right. The test was called the Theory of Barbering, and I don’t really know what that is, but that is what he was unable to do. The test actually has two components. It has the written part, the theory of barbering, and then it has as you’re sort of describing a practicum where you show the ability to do certain tasks. And the way I remember it, he had passed the practicum that wasn’t the issue. So I think one of a lot of things about that hearing really stuck out to me. One of them was the way that the president of the board said, I know to folks on your side of the fence, this looks really unfair. And I just thought about that image of offense and how sort of unselfconsciously the president had invoked that image. And then the other thing that really struck me was that one of the other people said, look, if you fail this five or six more times, maybe come back to us. Then it was almost acknowledging that we don’t really care that much about whether you pass this test. It’s more that the barrier remains really high and that you show that you’ve really, really struggled to get over it. And then maybe we’ll have a conversation.

Lee Rawles:

And this is just one of the things that you witnessed in person. You went to so many of these meetings for so many different professions. Can you talk a little bit about that process of researching the book?

Rebecca Haw Allensworth:

Yeah, so rewinding a little bit, I said that I had that Supreme Court citation and then I kind of ran with the football to tenure. For anybody listening who’s a law professor, what that means is I was writing law review articles and I was on Westlaw. That’s the dominant methodology in law scholarship, love it or hate it. We’re reading cases, we’re reading other law review articles. And I did that successfully. I got tenure and then I was like, what if I actually tried to figure out what’s actually happening in this regulation? What if I took the time to just show up to these board meetings and just watch? Because all but law are required to be public. And I knew this was a terrible strategy pre-tenure because it would take me forever and at the end of the day I would have a book. And again, that turned out to be true.

This was many years ago that I started this project. It took me years. I mean also because so much of the writing is based on interviews that I was only able to get because of very time consuming relationship building within the licensing system with board members. It’s just not a methodology that is practical for someone who’s trying to get ahead I guess. But it’s the beauty of tenure, like you get to do what you love and you get to really dig in and answer a question. Yeah, so I started showing up at board meetings and one of the first ones I went to was the hair board. And you hear a lot about the craziness of licensing with examples from the hair profession. And I have a theory about why that is. It’s actually one of the oldest professions, it’s not quite as old as a licensed profession as medicine, but it is much older than some of the other lower income licensed professions of today. Your fortune tellers or florists are relatively more recently licensed. And since it’s such an old profession, it has had nearly a century to raise those ratchets and raise those barriers to entry to a point where you have to go to barbering or cosmetology school for more classroom hours than law school. Law school, about 1200 hours of classroom time. Hair school is about 15. So it’s just become this very extreme example that’s easy to hold onto. But I think that’s really more a product of history than anything intrinsic about hair.

Lee Rawles:

Well, I think possibly also people’s personal lives, I think particularly about braiding, it is a niche skill. Certainly you can do harm if you do it incorrectly, but most people who are very skilled braiders probably learned at a family member’s knee rather than from cosmetology school. And so braiding comes up a lot or I hear it in discussions.

Rebecca Haw Allensworth:

I think that’s right. But I think actually cosmetology and barbering might be more like that than we realize. I’m not sure if you asked any given cosmetologist or barber, where’d you really learn to cut hair? What they would say was school. I think that they think it’s a hoop that they have to jump through to do the thing that they want to do. And what’s interesting about the hair braiding versus hair cutting example is that the hair braiders don’t want to be licensed. They want to just be able to learn at their mother’s knee and open a shop in their house. But the cosmetologists, I think in part because they come from this long history of having a licensure cosmetologists, at least as the organized profession presents itself, really wants licensing. They really want that barrier to entry. They want the benefits that come with it.

They want the prestige, they want the idea that they’re a licensed professional. And this is a really a powerful thing to try to take away. And one of the reasons why I started going to board meetings is because I was kind of sick of this story, like, oh, we need to get to the low hanging fruit. We need to delic hair. We need to delic all these low income professions. I thought to myself, are we so sure that the doctors are doing a good job? Are we so sure that we ought not to look under that particular rock for something?

Lee Rawles:

And we have not addressed it yet, but a huge part of this book, lawyers can sit back for a minute because it’s about the healthcare profession. So can you give us sort of a high line on medical regulations, medical licensing? Obviously the barrier to entry that people usually think of is, oh God, you’ve got medical school and then you have to do residency, internship, all this. There’s so much involved. Can you get into what we’ve done in the United States healthcare system with medical licensing?

Rebecca Haw Allensworth:

Yeah, so the very first board meeting I went to was not that hair board meeting, but it was the medical board. And like you said, it’s absolutely right. It’s very, very high barriers to entry, huge amounts of education. I think probably well exceeding what we have to do as lawyers. It is the oldest licensed profession, so it’s had a long time to work that particular ratchet. And of course it’s life and death. It’s really important. It’s really essential kind of work. It’s extremely, requires a high level of expertise. And so all of this makes sense and also contributes to the idea that, well, whatever they’re doing, I’m sure it’s fine. They’re doctors, they’re conscientious people also. They care about taking care of people. So probably what they’re doing is fine. And what I saw was when it comes to making rules, barriers to entry, things that might suppress competition, to think about it in antitrust terms, patient safety is paramount.

Oh, well, we couldn’t possibly have a foreign medical graduate come get a license here in this way because we don’t know anything about that school. We don’t know that it’s going to be this equivalent to an American school. And what this has done is taken patient protection so far that it’s actually hurting patients because it’s created such a scarcity of providers that there’s a huge crisis of access to care. And then when it comes to expanding access to care, maybe nurses should be able to do some of these tasks. Again, it’s the patient protection. It’s great for anybody to ever have to choose between having a nurse practitioner do their well child visit or a real doctor. So that was all very expected to me coming into it from the antitrust perspective. But at that very first board meeting, I saw a discipline case, which I hadn’t really thought much about actually at this point.

And it was a guy applying for RE to get a new license because he lost his license because he had admitted to having sex with 11 of his patients. He was an OB GYN in inner city Memphis, serving primarily 10 care patients. That’s our Medicaid program. He’d had sex with these 11 patients, he’d paid them, compensated them with off-book prescriptions for drugs with street value. He said he knew they were selling them. He had the kind of malpractice history you might expect from somebody who really struggled with addiction. He did drugs on the job, he did drugs with his patients. It was just kind of like I was sitting there, what is happening? They’re giving this guy, this guy a license back. And what was really particularly disturbing about it was that they were talking about the shortages of physicians when they were doing it. They were talking about how important it is to give access to care for the inner city clients that he saw. And so how did this work earlier in the day when they’re talking about shortages, they’re not talking about shorts early in the day when they’re talking about rules. It’s all about safety for patients and they’re creating all the scarcity. And then when it comes to something that seems really unsafe for patients, suddenly the scarcity is a reason to put this guy back in practice.

Lee Rawles:

Well, I think again about the fence metaphor.

Rebecca Haw Allensworth:

Yeah,

Lee Rawles:

The barrier to entry is high, but once you are on the other side of that fence, and it is your peers who are doing this evaluation over whether or not you should continue to be allowed to practice, their natural inclination is to identify with you, not with the patient and be more sympathetic to your plight and your position perhaps.

Rebecca Haw Allensworth:

I think that’s right. I mean, the fence keeps you out and then the fence keeps you in. And that was the overarching, I think, theme of the book for me in the end, that was the unifying idea that I was trying to get across. But that second part, the part where the fence keeps you in, I think that part’s still really hard to understand. How is it that these board members who, by the way, some of them I got to know quite well and are very conscientious, high integrity, at least say they care about patient protection and I think they do. How did they see themselves in this physician?

Lee Rawles:

And you actually have a passage in the book, if you don’t mind reading it, where you talk about meeting up with one of these folks after a disciplinary hearing and really getting into what he was thinking about going through during that hearing. Would you mind reading that for us?

Rebecca Haw Allensworth:

Yeah. So this is a different case. This is a physician who was coming back for another round of discipline after he had used his license to sort of basically sell drugs with street value in a very transactional way. He was already on discipline with the board at that time, and then they caught him doing this. He was actually facing federal charges for it, and this was his relicensure hearing. And I think what’s important to remember here is this doctor’s name is Dr. Laia, the guy who heard his hearing, Dr. Lloyd board member was brand new and was sort of in my opinion, not given the full information, but given enough to know. So I’ll start here kind of midway through our conversation at the coffee shop, and there were details to the story that Dr. Lloyd didn’t know that I learned just through easy kind of web searches about this doctor that maybe he could have known.

When I told Dr. Lloyd the full story of Dr. LA’s past, he grew quiet. When he finally spoke, there was a catch in his voice. How come I don’t know that? Like most board disciplinary cases, Dr. LA’s trial was low information and non-adversarial. When the board prosecutor mentioned the doctor’s 2003 arrest and subsequent criminal plea, the prosecutor did not mention that the police said they had found 45 court sized jars of marijuana, two guns and a formulary of paralytic and sedative agents that outside of the hospital were more appropriate as weapons than for recreation. Rather, he referred obliquely to some criminal charges related to Dr. Alia’s own personal use of drugs. The prosecutor did hand Dr. Lloyd and the other board members a copy of Dr. Alia’s 2018 federal criminal plea for drug dealing through l and b, but failed to correct the doctor’s claim later in the hearing that he had never even been accused of trafficking narcotics.

But that doesn’t fully explain why Dr. Lloyd made the decision he did. He was presented with enough facts in the hearing to see that Dr. Lio was a doctor undeserving of further chances at a medical career. He was handed copies of two criminal judgments against the doctor for using his license to deal prescription drugs. He knew the latest scheme was hatched while the doctor was under a board disciplinary order and he knew that the prescriptions were forged. The rest of the answer can be found by understanding who Dr. Lloyd is and who he is not. He is a physician who believes that the sick can get better. Dr. LaPaglia fit his troubles with pill addiction into this disabled narrative supplied by the A MA by speaking about his own recovery with apparent vulnerability. He steered the narrative away from the lapse in ethics and judgment evident in the L and B scheme and towards something Dr.

Laia and Dr. Lloyd had in common support and their recovery from the Tennessee Medical Foundation. And when it suited him, Dr. Laia lied. That was because of who Dr. Lloyd is not. He’s not a regulator. Who knows the bad man will walk the line, nor is he a judge who was used to being lied to. It was his very first board meeting. He had been given no training on contested cases. I have experience in being a doctor. He told me it’d be like me bringing you into my clinic and you’re a lawyer. You don’t know anything about what I’m doing. Dr. Lloyd has regrets about the case to say the least. I was appointed by the governor to protect the health, safety and welfare of the people of Tennessee. He told me I didn’t do that. But not all the blame for the relicensure of Dr. Lippa arrests with Dr. Lloyd. Some blame must be played on the system that asks an addiction doctor like Dr. Lloyd given far too little information about the case to give up on yet another pill addict in Tennessee.

Lee Rawles:

Thank you so much for reading that, Rebecca. We’re going to take a quick break to hear from our advertisers and then return welcome back to the Modern Law Library. I’m here speaking with Rebecca Haw Allensworth about the licensing racket. Something that really pinged for me in the passage that you read for us was you said the medical profession has to believe that the sick can get better. And it made me think about how within the legal profession, legal community, most of us believe that there is at least an attempt at rehabilitation. And so I think about lawyer discipline and the systems that we have set up for lawyer discipline and the systems we have set up for lawyer reentry into the profession. And if you believe that part of our justice system has to involve a available recovery, but in a legal sense, then it would be very hard to as an attorney necessarily say, our profession, which has many people who struggle for example, with addiction problems and may make poor decisions about that, is there no way back? Is there no rehabilitation possible? So what do you think about that when it comes to not just medical discipline boards but legal ones? You said you weren’t allowed to observe those.

Rebecca Haw Allensworth:

That’s right. So it’s hard for me to say a lot firsthand about that. But what I do know is that these recovery programs for the professions are really important and I think they do really good work. So the physician health program that I referenced here is Tennessee Medical Foundation. There’s one in every state for lawyers too. LAP is the one that we have here. And I think that the idea that somebody struggling with mental health, usually some kind of substance use disorder, should can turn to their profession for help is a really powerful and important idea that we should preserve. And when you are recovering, I learned a lot about recovery in writing this book. Actually, I did not expect that. I don’t have personal experience with that nor in my family, but I really learned a lot and I have a lot to thank actually Dr. Lloyd for helping me learn all that.

One of the ideas of recovery is that there’s always a second chance Relapse is a part of recovery. It’s never too late. And I believe in that as a question of how does somebody recover from substance use disorder? The problem comes when we conflate that idea of second chances and recovery with the licensure system because that is supposed to be about public protection, not about whether somebody deserves a second chance. Everyone deserves a second chance, not about whether somebody can become a better person. Of course they can become a better person. But when we use those instincts, and I think they’re especially strong in doctors to treat the sick, to be forgiving, to give a second chance, when we attach that to the idea of when that second chance comes in the form of a license, I think it just puts the public at too much risk. Which isn’t to say that somebody who has a problem with substance use disorder should not have a license. The question is, has that substance use disorder spilled over into patient care? And when that happens and when there’s a high risk of it, there needs to be a moment where we say, I believe in your recovery. I believe in you, but you can’t be a doctor. You can’t be a lawyer. The risk is too high for the public.

Lee Rawles:

Well, one thing you said in the book that I found kind of chilling, you make the point that in general, if someone is able to make a recovery and return to the profession, there are still doors that are closed to you. And those doors are for the higher paying jobs. The more lucrative, the more prestigious, those doors are usually now close to you. And you find yourself pointed at people who have fewer resources and chances. And you say the licensing system keeps the worst of the worst in practice and then shunts them towards the most desperate members of the public. And I think back to your earlier anecdote where the doctors say, well, this particular clientele, they need access to care. Are we to take away this person who did horribly unethical things from them? And certainly there are many cases where let’s say ethical breaches by, I think public defenders are overworked and do heroic work and are unfairly maligned. But when you look at people who go into that work because they don’t have other options and maybe they do provide terrible care, it’s chilling to think about, oh God, and these are people without other options. How do you think we can even begin to address that?

Rebecca Haw Allensworth:

Yeah, so this is also a very surprising finding that I didn’t understand until I did my research. This idea that there’s this kind of caste system of providers, which we always knew that, I mean, if you have a market for legal services or for medicine, you’re going to have a sorting system where the people who can’t pay don’t get the same level of care. What I didn’t understand was this dynamic that you’re describing where licensing, when they give you a slap on the wrist or they give you some sort of discipline, but then you’re allowed back in, that actually pushes you towards those populations. And as you point out, so I agree, public defenders are maligned. I’m married to one, so I have to be careful what I say here. But it is true that the professions that are still available to you tend to be things like appointed criminal defense, immigration work, things where people are particularly vulnerable.

And then in the case of medicine, you can go work and in a prison you can hang a shingle and start doing pain. This is not maybe quite as viable these days, but you can have a pain clinic and that walks a very fine line. And actually Tennessee was not that fine for a while. So that’s the problem. And what can we do about it? Well, I think the first thing we have to do two things at once. We have to increase the supply and then we have to be willing to take out the elements of that supply that are just not safe. And so the increasing the supply answer is half of this book is about too much red tape. I do kind of give the conventional account that I thought was true as an antitrust professor, which is this self-regulation makes for too much scarcity.

And so if you increase the supply, then maybe there’s less pressure to let the bad apples remain. And also keep in mind that the bad apples are very, very few. This does not actually represent a meaningful set of patient care that we need to protect. We’re talking about, I mean, what I saw was just really downright criminal predatory just really beyond the pale. And I think that for that, again, we need to have something other than full self-regulation. We need to have other people at the table doing the kind of forehead slapping that I was doing in this hearing at what was a totally different language going on up there amongst the professionals from their own profession.

Lee Rawles:

And you do get into the nitty gritty of your recommendations in the licensing rackets final chapter. So we don’t need to go and pick up the book. But broadly, what do you think could be some of the ways that we attack this? You bring up that when licensing is suggested before legislatures, there are things called sunrise reviews. If you could get into that a little bit, I think that would be interesting to listeners to hear about the different kinds of reviews that are done when deciding whether to install a licensing system.

Rebecca Haw Allensworth:

So when I started working on this book, there was a licensing reform movement kind of underway of which I was a part. And I think that elements of that reform movement have a lot of promise. One of them is this idea of sunset and sunrise legislation. And in fact, the Institute for Justice, which is this think tank that’s been very involved in this reform movement, has shown empirically that sunset and sunrise review work and they work particularly well together. Sunrise Review is a law that says if you want to introduce a new license, which by the way is happening all the time, is we have not particularly slowed the growth of this regulatory institution, then you have to defend it on these terms. You have to tell us very specifically what is the consumer protection issue. You have to document it, you have to have hearings about it, and you have to talk about why this is the right intervention.

And it doesn’t say you can’t start a new license, but it kind of focuses the legislatures on the questions that matter as opposed to what it has been all along, which is the profession shows up saying, we need a license. It’s a win-win for consumers and for us. And it’s cheap because we’re going to pay for it entirely through licensing fees. The state don’t need to pay a dime. And the legislature or the legislature is thinking, I got a million things on my slate that seem a whole lot more complicated and important than this. I’m not going to fight it. So I think sunrise review is a way to get around that, and I think it works to some degree.

Lee Rawles:

The push and pull that I felt during this book is like you said, for part of it, it feels almost like a libertarian argument that, oh, you know what? We’ve got too much government involved. But there is another side to which you suggest, Hey, maybe we need more government. Maybe we need more bureaucracy. Maybe we need to nationalize or federalize. What are those challenges?

Rebecca Haw Allensworth:

Yeah, so that’s exactly what I’m saying in the book. It’s like a stop. You’re both right. Thing about libertarians wanting to deregulate everything and then people wanting more regulation, I think. So we need to get rid of licensing for a bunch of professions. And I talk a bit about how we might think about which ones, and we need to stop introducing new licensure for professions, but we also need to do licensing for the professions for which we need a license. And the challenges there are that any way you do it, which I just want it to be less, so I want to fewer providers on the board so that they’re not a majority and or make the board’s advisory. The most important point is to vest the decision-making authority in the agency itself to actually make this more governmental, to make this more bureaucratic, to use a word that’s getting maligned a lot these days, and to be more proactive about investigating problem providers, to be more proactive in these cases. Because part of what people said when I said, well, how is this possible? How is this guy not getting discipline or how are they getting this light discipline? The answer was resources. And so the big challenge I think is resources, because everything that I want to do with making licensing more bureaucratic and making it more accountable is going to be expensive. Well, there’s two problems. One is it’s going to be expensive, and two, the professions are going to fight it tooth and nail.

Lee Rawles:

Neither of those things sound like they’re going to be popular, Rebecca.

Rebecca Haw Allensworth:

I know. I know. I know. Well, guess what? You can’t do anything for free, right? It’s like if somebody shows up and says, I have a way to fix this problem and it’s going to be completely effortless, they probably are not making a serious argument. I mean, I have some ideas about how you could make it a little bit cheaper. I think you could merge all of the resources the way we do discipline. Now you have a different, every board does their own disciplinary system. At least this is the way it is in Tennessee. And most states, I think you could pool the health profession disciplinary system into its own thing, into state by state. But yeah, I mean, think if I get my way, it’s going to be more expensive. But let’s remember, and we haven’t talked a lot about this, but a lot of the book is about the opioid crisis and the failure of discipline against doctors that that was very expensive for the state and continues to be. I mean, that’s an understatement. If we think about the expense in terms of the human toll, it becomes just astronomical. And so it’s not like, oh, and cost of healthcare extremely expensive. I’m not saying that good licensing is the main driver. Bad licensing policy is the main driver of cost of healthcare, but it is a driver. And so I think if we look more globally at the costs of this system, it starts to look not that expensive to fix it.

Lee Rawles:

Well, Rebecca, if my listeners want to learn more, where can they pick up the licensing racket?

Rebecca Haw Allensworth:

So it’s available on Amazon. And I really hope that the word gets out there because no book has been written about the whole regulatory institution of licensing in over 40 years. There’s a lot in there, and I really hope you’ll pick it up. It’s available on Amazon.

Lee Rawles:

Well, thank you to Rebecca and thank you to you, my listeners, for joining us for this episode of the Modern Law Library. If you have a book you’d like me to discuss in a future episode, you can always reach out to me with suggestions at books at ABA Journal dot com. And if you enjoyed this episode, please rate review and subscribe in your favorite podcast listening.