Montreal’s McGill University has a world famous medical department. It was formed in 1831, offering a five year course. When the first student made it through, following additional courses and requirements and other delaying tactics, he was finally awarded his medical degree. But then doctors in Montreal denied him a license to practice, saying he needed to pass their exam first. He would be the first to ever have to. He refused, since McGill had awarded him his license already. This, quite naturally, resulted in years of lawsuits. The doctors of the time simply did not want to have to share their patients with him. Restricted entry is nothing new.

But a hundred miles south, in the USA, it has gone off he rails. So I was interested to read The Licensing Racket, by Rebecca Haw Allensworth, a Tennessee lawyer. She spent years sitting through board meetings and conferences, interviewing 180 candidates, board members, lawyers and politicians, and reviewing the records all over the country. The result is even worse than it was at McGill 200 years ago.

In the USA, she says, more people need licenses to work today (almost one in five) than are in labor unions. Every little job seems to have a board of professionals that requires candidates to spend a year or two taking courses at great expense (ten to 20 thousand dollars), followed by an exam that could cost them an additional couple of thousand dollars, every time they try. And a lot of people fail. It is how to keep people out of a profession in the 21st century. And no license, no work. Opening your own business is not a workaround, because these professions have the force of law.

There are two sides to this story, both bad. First, the need for a license in order to work:

The so-called professions have become silly. Allensworth mentions several of the three hundred or so of them, such as florists, lactation consultants, hair braiders, nail painters, beauty pageant operators, locksmiths, massage therapists, alarm system installers, as well as the more expected nurses, doctors and lawyers. She says there are 2000 state licensing boards to deal with in the USA. And the states most often do not recognize a license obtained in other states. This has led to situations like a man with three decades’ experience cutting hair in Michigan unable to get licensed in Tennessee because his written English is not good enough to pass the exam. In Michigan, the state permitted a translator to sit with him. Not Tennessee. At his appeal, the board told him to keep trying, and after he failed at least six times, there might be something they could do for him. Until then, appeal denied.



I think my favorite is florists. In Louisiana, the state found itself in a lawsuit, where its position was “that licensing florists helped prevent infections from misplaced floral wires and potentially disease-carrying soil.” Seriously. That was their argument.

The direct result is higher prices for consumers, as there are fewer professionals allowed to practice than want to. And those licensees are in big debt from the process. They need high prices to make themselves whole somehow.

The schools for these licenses are themselves a license to make money. Just cutting hair requires 1800 hours of expensive classes, about twice as long as is necessary to become a licensed emergency medical technician. Cosmetologists need “only” 1500 hours, still more than law school requires. The course on hair braiding was a real conundrum, as there was no one to teach it. It was a traditional skill that African immigrants brought with them, and no one in Tennessee had a handle on it, the way African women did it. But without a license, it was a thousand dollar fine, again and again.

And the claws don’t relax their grip once a license is issued. There are CEUs – continuing education units, that licensees are required to accumulate every couple of years, sending them back to school despite their established careers and businesses.

It also gets silly, as in the turf wars, between say acupuncturists and chiropractors over “dry needling.” Also between doctors and nurses over prescribing drugs and refills. Doctors must be responsible for nurse practitioners, and so their numbers are seemingly randomly constrained to say, four per doctor. This keeps the number of nurses artificially low. Allensworth says “From a consumer perspective, fighting over exclusive turf is worse than a waste of time.”

The licensing process is not without its racial aspects, either. Allensworth found 23% of whites hold licenses, but only 20% of Blacks and just 14% of Hispanics do. And yet, it is those minorities where going into business for themselves is most important, thanks to racial issues in getting standard employment.

But then, this whole house of cards isn’t much better. States impose these licenses, in theory, for public safety. But there are two things about that. First, many of these professions have no connection to safety issues. And second, the professional boards routinely and consistently ignore safety issues when customers complain. They almost invariably find for the practitioner, their co-licensee.

Which brings us to the second part of the story. Because once you’re in, you’re in, Allenworth says. The professional boards will defend their licensees against all comers, ignoring criminal behavior, finding against injured customers, and giving licensees 2nd, 3rd, 4th and 5th chances, when their customers are literally dying from their criminal lack of professionalism.

Most of the book seems to be about bad doctors, who get rich killing patients, or molesting them, or trading sex for treatment, or, and mainly, writing opioid prescriptions for a flat $300 cash, all day long. Sometimes a hundred a day — a dozen an hour. Doctors routinely seem responsible for millions of pills prescribed, which is how they end up being sold in the streets of every town.

The so-called professionals who judge licensees look at them as brothers. The resulting wrist slaps pretty much assure the accused will be back before the board again. The boards are totally independent of each other from state to state too, so there is no consistency in discipline for licensees. Allensworth says Kentucky, for example, disciplines its doctors at seven times the rate that New Hampshire does. She says according to a nationwide patient advocacy group: “There is no reason to believe that even the highest rate currently observed is adequate for protecting the public from dangerous physicians.”

So the worst professionals seem to be the doctors. Allensworth cites the example of USC’s Dr. George Tyndall, who molested so many students the criminal case ended up being handled as a class action, with 16,000 victims. There are cases where the board insisted on chaperones in the examining room, but the doctors using them continued to molest girls and women, right in front of the chaperones. In her own Tennessee, boards only discipline doctors in 33% of sexual misconduct cases. And discipline can be as little as a letter, or a license suspension, probation or a warning. In the UK, by comparison, the discipline rate is 95%.

Board decisions often veer off to supposed benefits of keeping the doctors on. Regardless of how many pills they illegally supplied, doctors are let off to keep going because they are the only one around for miles, or hundreds of patients depend on them. Or they’re critical to the community. A doctor is a precious thing; you cannot simply wave them off for malfeasance, the board often says. They have put in a lot of time and money to get where they are and should not be prevented from practicing. Especially if it’s just some “accounting error”, like the $65 million a doctor billed the armed forces for a phony skin cream. The whining by doctor boards is astonishing.

Worse, when they are disciplined with say restrictions on their license or ability to prescribe, bad doctors will team up with others who have full privileges. Or they’ll open their own private practice without network affiliation, or just make house calls and give terrible advice. Many criminally convicted doctors end up working in prisons, which will accept them despite their convictions. Their performance in these institutions is renowned for its uncaring horror.

As for lawyers, they have additional weapons. Complainers are warned in advance against even making accusations formal, because lawyers will sue them for defamation and preventing them from performing their profession. Harvard Law professor David Wilkins says: “…the (ABA) claim ‘that a properly functioning disciplinary process can effectively control lawyer misconduct’ is not plausible.”

One of the problems is that boards tend be mandated, but unfunded. They often don’t have lawyers working for them, or investigators. Board members are volunteers, and usually receive no training in how to adjudicate cases. Anyone bringing their own lawyer to a board meeting has an intimidating advantage right away. Boards’ total lack of expertise is on display at their monthly meetings, as they simply dismiss case after case. Allensworth says “arbitrary and capricious” may describe most of their decisions.

The good news is that some states are adding sunset provisions to some of the laws creating these boards. If no one shows up to plead for their continuation, they could simply vanish at the end of the term. Not enough, however. The damage done to both customers and the profession, not to mention applicants, from this perverse system shows the desperate need for active weeding. As Allensworth says, “Professional licensing is only appropriate for work that requires professional judgment.”

David Wineberg