Antitrust Scrutiny for the Occupations: North Carolina Dental and Its Impact on U.S. Licensing Boards
Allensworth, Rebecca Haw
The American system of occupational licensing is under attack. The current regime – which allows for almost total self-regulation – has weathered sustained criticism from consumer advocate groups, academics, politicians, and even the White House itself. But the recent U.S. Supreme Court opinion in North Carolina Board of Dental Examiners v. FTC,1 portends a sea change in how almost a third of American workers are regulated. The case has made it possible for aggrieved individuals and government enforcers to bring suits against most state licensing boards, challenging their restrictions as violating federal competition law. The case has prompted two responses: a flood of antitrust suits against boards, and a panic among states as they scramble to protect licensing boards from antitrust liability. This article describes the current system of professional regulation in the U.S., explains the North Carolina Dental opinion and its legal impact, and discusses states’ likely responses. The upshot is that in order to protect occupational licensing from antitrust suit, states will have to reform their regulatory systems in ways that will improve the fairness and efficiency of American occupational licensing laws.