Rebecca Allensworth, professor of law at Vanderbilt University Law School, has let it be known that her working title for this book was “Board to Death,” pun intended. Read this book and you will be anything but bored. It is a highly informative and riveting exposé of how and why state licensing boards use — and misuse — their considerable power to control the right to work in a substantial variety of professions and industries.

Allensworth attended hundreds of board meetings — mostly in Tennessee — and has combined a journalist’s investigative flair with a scholar’s intellectual rigor to tell some truly eye-opening stories, to explain why so much well-intended regulation goes wrong and to suggest ways to make it go right. If you represent workers, employers or professional organizations in their dealings with licensing boards, you will want to read this book for its behind-the-scenes look at how these boards operate. If you represent consumers of services provided by licensed professionals — and most especially because you yourself are undoubtedly a consumer of licensed services — you will want to read this book for its essential insight into what protections these boards afford consumers. Not to mention that as a state-licensed attorney, you should be just plain curious about this “licensing racket,” which is basically a government-granted privilege to work that affects 20% of the country’s workforce, including you.

Occupational licensing laws are generally justified as consumer-protection regulation, but for starters, by imposing barriers to market participation, the licensing laws can create artificial shortages of services, which in turn ratchets up costs to consumers. And Allensworth’s research, which lasered in on the professional licensing boards created by state governments, reveals that, by and large, instead of protecting consumers, the boards that implement the licensing laws exercise their considerable regulatory power to protect members of their own profession from competition.

Allensworth doesn’t mince words; her research convinced her that “professional licensing boards, as currently conceived, aren’t good for much at all.” They do not fulfill their intended purpose of protecting the public. Because the boards are typically controlled by members of the respective profession the board is charged with regulating, self-interest motivates the board members to protect their own and to preserve their profession’s perceived status and its culture. As support for this conclusion, Allensworth presents a well-documented anthology of board actions — and inactions. For example, she learned that most of the complaints that the security alarm system contractors’ licensing board got during 2019 were lodged against board-licensed alarm contractors by consumers who had experienced faulty installations, scams or fraud. But the board took action against the contractor in just 17% of those cases. In patent contrast, the board took action in 60% of the complaints it got from the licensed contractors themselves, usually asking the board to sanction their competitors, i.e., unlicensed handymen who install or repair alarm systems. The board, it turns out, “was ten times more likely to take action in a case alleging unlicensed practice than one complaining about service quality or safety” of alarm licensed contractors.

Allensworth observed that this industry-protective pattern was prevalent, too, among the boards regulating licensed professions, including the legal profession. The most bone-chilling examples come from boards regulating the medical professions. Those boards do not, it seems, put patient care and safety first; Allensworth illustrates with striking specifics how the boards simply ignore or forgive medical misconduct, such as a surgeon operating under the influence and a nurse practitioner extorting sex in exchange for prescriptions.

Now that we have a grip on “why it goes wrong,” how do we fix this century-old regulatory scheme so that it goes right and achieves the intended benefits in quality, safety and cost-containment for consumers? Allensworth knows that there is no quick fix for the problem and cautions that meaningful reform will take hard work over time, including experimentation with alternatives. In the book’s conclusion, she carefully catalogs and considers possible alternatives that have already been tried with little success and ones that are being tried with some promise. She posits that many professional licenses can be eliminated, along with the boards that currently dole them out. And for boards that cannot be eliminated, she suggests ways to at least eliminate control of the boards by members of the professions they regulate. Ensuring transparency and accountability in the activities of these boards, she argues, would be salutary, and this book certainly has drawn back the curtains to let in some of the disinfecting sunlight Justice Louis Brandeis prescribed to purify the actions of governments and organizations. |||

Andrée Sophia Blumstein is of counsel to Sherrard Roe Voigt & Harbison. She served as the Tennessee solicitor general for a decade under Attorney General Herbert Slatery. Blumstein is chair of the Tennessee Bar Journal editorial board.