When Foxes Run the Henhouse: The Failures of State Professional Licensing Boards
“All professions are conspiracies against the laity,” George Bernard Shaw wrote in his 1906 play The Doctor’s Dilemma. However, the story of the Benedictine monks of Saint Joseph Abbey shows that professions can sometimes be conspiracies against the clergy, too. In 2005, Hurricane Katrina battered the forest near the Abbey, felling a great deal of timber that the monks could use as a source of income.[1] To capitalize on this opportunity, the monks began making and selling caskets to the public.[2] However, the monks sold their caskets at a price lower than their local rivals.[3] This soon made the Abbey a target of the Louisiana State Board of Embalmers and Funeral Directors, a body tasked by the Louisiana State Legislature with ensuring high professional standards among those who cared for and disposed the deceased.[4] The Board issued a cease-and-desist order against the Abbey because “only licensed funeral homes were entitled to sell caskets to the public.”[5] Why would the Board target these monks? Their caskets were not inferior or unsafe, after all.[6]
The answer perhaps lies in the Board’s membership: “eight of the nine board members were funeral industry participants” seeking to repel competitors in their market.[7] This fact captures the main defect of professional licensing: regulatory capture. Despite the fact that the Supreme Court reprimanded industry-dominated professional licensing boards a decade ago,[8] “some two thousand state licensing boards scattered across the country” are controlled “by busy part-time volunteers from the very profession they are tasked with regulating,” as Rebecca Haw Allensworth notes in her recent book about the problematic ways in which professional licensing boards are run.[9] The regulatory capture of professional licensing boards leads to two negative outcomes: the “Locked Out” and “Locked In” effects, as Allensworth calls them.
The “Locked Out” effect occurs when “professional licensing boards, influenced by the professional associations from which they come, operate a one-way ratchet, increasing entry barriers to their profession over time and resisting competitive incursions on professional turf.”[10] For example, the Pennsylvania State Board of Dentistry once tried to prevent a dentist licensed in New York from obtaining licensure in Pennsylvania, even though the dentist had to complete “a year-long residency training and perform[ ] procedures on live patients” to practice in New York, a much more rigorous test than Pennsylvania’s “two-day exam on a manikin.”[11] As obstacles to licensure like these accumulate, the public is harmed because “competition suffers” and “patients and clients pay more for less.”[12]
The “Locked In” effect occurs when the boards fail to make an “effort to discover misconduct” and, “even when they do, they tend to protect the careers of manifestly dangerous and incompetent providers.”[13] For instance, an Iowa attorney who the state disciplinary board found had committed multiple acts of sexual misconduct with clients was initially suspended by the board for only thirty months (the Iowa Supreme Court later imposed a stricter punishment).[14] Licensing boards’ desire to protect members of their own profession “keeps the worst of the worst in practice,” leading to dreadful outcomes for clients and patients.[15]
Given that nearly “20 percent of American workers, or nearly thirty million, must hold a professional license to do their job,” the stakes of the “Locked In” and “Locked Out” effects are very high.[16] While the monks of Saint Joseph Abbey eventually beat the funeral industry in federal court, “[n]ot everyone has the time, the tenacity, or the resources to fight entrenched industry interests that have taken hold of the regulatory reins and turned them to their benefit.”[17] Instead of bringing the fight to court, citizens should therefore think deeply about which professions really require licensing and pressure state legislatures (to whom the licensing boards are accountable) to protect the public’s interest by fighting the expansion of licensing.
[1] Janie Nitze & Neil Gorsuch, Over Ruled: The Human Toll of Too Much Law 145 (2024).
[2] Id.
[3] Id.
[4] Id. at 145–46.
[5] Id. at 146–47.
[6] Id. at 145.
[7] Id. at 146.
[8] N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S. 494, 520 (2015).
[9] Rebecca Haw Allensworth, The Licensing Racket: How We Decide Who Is Allowed to Work, and Why It Goes Wrong 2 (2025).
[10] Id. at 15–16.
[11] Haentges v. State Bd. of Dentistry, 307 A.3d 823, 834 (Pa. Commw. Ct. 2023).
[12] Allensworth, supra note 8, at 16.
[13] Id.
[14] Iowa Sup. Ct. Attn’y Disciplinary Bd. v. Moothart, 860 N.W.2d 598, 603 (Iowa 2015).
[15] Allensworth, supra note 8, at 17.
[16] Id. at 3.
[17] Nitze & Gorsuch, supra note 1, at 147.
July 7, 2025