Suchergebnisse

Nearly a quarter of all workers in the United States are currently in a job that requires an occupational license. As the prevalence of occupational licensing has grown, so have claims that its overuse is causing increased consumer costs and impairing labor mobility and economic freedom. To address these concerns, many policymakers and academics argue that licensing restrictions should be more closely tailored to the goal of protecting the public from harm and that, to guard against capture, practitioners should not regulate their own licensing. Federal courts, in turn, have drawn on this vision of the proper role of occupational licensing to significantly limit when and how licensing can be used through their interpretation of antitrust law and the First and Fourteenth Amendments of the Constitution. This Article takes a step back to argue that these critiques of occupational licensing, and the federal jurisprudence based on them, embrace a narrow view of the role of licensing in the economy that is grounded in both an embrace of economic libertarianism and an antagonism towards professional self-regulation. While this view generally recognizes licensing as justified to protect the public from harm in limited situations, it disregards a range of other values that occupational licensing has historically been viewed to promote. This Article draws on social science literature to categorize these other justifications as (1) fostering communities of knowledge and competence; (2) developing relationships of trust; and (3) buffering producers from the market. The Article uses specific examples from the judiciary's occupational licensing jurisprudence to show how acknowledging this broader set of justifications should constrain the courts from imposing a narrow view of licensing's role in the economy. It ends by suggesting that if the federal government is to shape occupational licensing policy, Congress and the Executive are better placed than the judiciary to take the lead.

What this clever research suggests, however, is that the costs of occupational licensing spill over to other workers in similarly skilled occupations.

Judges have long recognized that the right to earn a living in any of the common occupations is among those fundamental interests which a democratic society should protect. Justice Bradley characterized it as an "inalienable right," and Justice Douglas asserted that it is "the most precious liberty that man possesses." Indeed, Mr. Justice Field viewed protection of this right as one of the distinguishing features of our republican institutions. That the right to earn a living is generally within the protective mantle of the Fourteenth Amendment is now long settled constitutional doctrine. Writing for a unanimous court in 1915, Mr. Justice Hughes declared: "It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure." The Massachusetts court has been especially vigorous in asserting the constitutional standing accorded this right. Speaking in terms reminiscent of the eighteenth century natural lawyers, it said in 1924: "Manifestly no statute by attempting to outlaw a natural right can deprive one of the opportunity to earn his livelihood. The right to labor and to do ordinary business are natural, essential, and inalienable, partaking of the nature both of personal liberty and private property." Important as is the right to earn a livelihood, recent developments along a number of fronts have resulted in a marked curtailment of individual freedom of entry into various occupations. The developments have been multifarious. Labor unions now exert considerable control over occupational entry. There has been an increasing tendency on the part of legislatures to condition an individual's choice of gainful activities upon the consent of other private persons – the most common example being the "consent" zoning ordinance. Here I propose to focus upon still another significant control over free occupational entry: the requirement of a state license as a prerequisite to occupational practice. This license issues only to those who demonstrate a certain minimum proficiency, and, of course, the imposition of a licensing system upon an occupational activity automatically involves the rejection of any unlimited occupational entry notions. The Massachusetts statutes and decisions will be used as a convenient illustration of the considerations involved in this process.

This study provides the first nation-wide analysis of the labor market implications of occupational licensing for the U.S. labor market, using data from a specially designed Gallup survey. We find that in 2006, 29 percent of the workforce was required to hold an occupational license from a government agency, which is a higher percentage than that found in studies that rely on state-level occupational licensing data. Workers who have higher levels of education are more likely to work in jobs that require a license. Union workers and government employees are more likely to have a license requirement than are nonunion or private sector employees. Our multivariate estimates suggest that licensing has about the same quantitative impact on wages as do unions - that is about 15 percent, but unlike unions which reduce variance in wages, licensing does not significantly reduce wage dispersion for individuals in licensed jobs.