Professional licensing requirements look very unconstitutional when government power supports monopolies without benefiting either licensees or consumers.
Almost a decade ago, in a post entitled “The scam what am,” I described one of the few things that make me, a rather temperate person, start ranting like a crazy woman:
If you want to witness the interesting spectacle of my going from a fairly mild-mannered, motherly lawyer type, to a screaming, foaming-at-the-mouth harridan, mention one acronym: MCLE. This stands for Minimum Continuing Legal Education, which I found an inconvenience when I was a big firm attorney and that I find an economic and time burden now that I’m a solo.
Continuing legal education did not used to be a mandatory requirement for practicing law in California. When I started out as a lawyer, legal organizations and legal publishers would put together seminars and send out fliers in the hopes that lawyers would attend. Often lawyers did attend because the seminars involved the lawyer’s practice area, and they promised to be interesting or to give the lawyer an edge professionally. Lawyers took the classes on a strictly as needed basis, so that a lawyer who was just plodding along in a single area, reading the cases as they came out and churning through relatively uninteresting legal cases, might attend one seminar a year. For example, a litigator might attend an annual half day seminar on new pretrial procedures. (Or he might just read the new legislation emanating from Sacramento every year, or check the update to his favorite legal treatise, which would spell out all of the new procedural requirements.)
Then, in the late 1980s, the California State Bar suddenly announced that, if lawyers want to keep their licenses, they were required to take 36 hours worth of seminars over a three-year period (a requirement since lowered to 25 hours over the same three years). Not only that, but lawyers couldn’t just take classes in areas that might benefit them as practitioners. Instead, they also were (and are) required to take several hours of classes in law practice management, legal ethics (which could theoretically help some lawyers out there), substance abuse, and identity politics — oh, sorry, that last should be “Elimination of Bias.”
Over the years, in addition to lowering the number of required hours, California also allows lawyers to complete all of their hours online. Thankfully, the free market, which sees online providers throughout the United States competing for customers, means that I can get 25 hours of MCLE for a mere $60. Of course, the “classes” I take have nothing to do with my practice area but, for $20 per year and some boring background noise while I cook or do laundry, I can live with it.
Living with it, though, doesn’t mean I like it. That’s why, when I had the opportunity four years ago to hear Clark M. Neily, III, speak, his talk really resonated with me:
The subject of his talk was the poisonous effect of the “rational basis” analysis that the Supreme Court has mandated for cases involving government infringement on an individual’s right to work.
In other words, Neily thinks that courts are imposing an unconstitutional test that unconstitutionally deprives people of their livelihood, all in order to enable professional monopolies that freeze out newcomers:
If you protest a state or federal law imposing such a great burden on your profession that you cannot run a viable business, or that imposes ridiculous impediments as a predicate to holding a certain type of job, the federal court judge hearing your case will ask the government to justify the law. Fortunately, for the government, the standard, known as the “rational basis test” is so low that it requires no facts or analysis, just imagination. Worse, it turns the judge into an active part of the government’s defense team. Or as Neily explains:
Unlike strict and intermediate scrutiny, it does not involve a search for truth but rather an exercise in creativity. Instead of trying to determine what the government is really up to, as they do in other cases, judges applying rational basis review are required to accept — and even help invent — purely imaginary explanations for the government’s actions. (p. 50.)
Here’s how this standard played out in a real case that is near and dear to Neily’s heart. Sandy Meadows was a Baton Rouge, Louisiana, widow with one marketable skill: she could arrange flowers. We’re not talking the fancy flower arrangements you see in the lobby of deluxe hotels. She put together the little posies at the local supermarket and was paid a livable salary to do so. Unfortunately for Meadows, the state of Louisiana requires that florists — with a florist defined as anybody who assembles more than two flowers and sells them — to have a license.
Meadows took the license test five times and failed it five times. Lest you think she was an ignoramus, she wasn’t. She didn’t have a problem with the 50 written questions. Her problem was with the practical exam. In Louisiana, anyone who wants to put together posies for profit must assemble four arrangements that are then judged, not by some bureaucrat (which would be bad enough), but by a panel of florists who are given a chance to size up potential competition. That’s where poor Meadows failed every time. She wasn’t alone. I believe Neily said that the floral panel passed only 37% of test-takers. Neily compared this to Louisiana’s State Bar pass rate, which is 61%. In other words, it’s easier to become a lawyer in Louisiana than to become the gal who puts together bouquets at the local Piggly Wiggly.
Neily, on behalf of the Institute of Justice, took on Meadows’ case . . . and lost. He lost because the “rational basis” test meant that the government could come up with any nonsense it wanted to justify a monopolistic licensing requirement and, when the judge wasn’t convinced by the government’s arguments, he was able to come up with his own, even sillier, reason for having the state put its giant thumb firmly on the scale on the side of florists.
I’m not putting up today’s post just to rehash the glories of my past posts. Instead, I’d like to introduce you to a lawyer friend of mine who is fighting an MCLE battle. [Read more…]