For those who dont know me, i am corrine long, and i teach antitrust and intellectual property law. Ill pause for a minute. We saw people joining us online and thats what youre hearing. To everyone in the room, welcome and thank you for coming. Its a privilege for mow to be here today in my capacity as cochair along with josh wright of the antitrust and Consumer Protection working group of the Federalist Societys regulatory transparency project. This was launched in 2016 to foster a National Conversation around the issue of regulatory excess and harms it causes. The project consists of 12 working groups each composed of experts in specific fields of regulatory law and policy ranging from environmental and energy to race and sex. In june of this year, each of the working groups start today release various issue papers, podcasts and short videos, which, among other things, can be found on our website, which is regproject. Org and i invite you all to go to the website. And today is the first conversations of the antitrust and consumer working Protection Group and occupational licensing and other restraints on competitions. Im now going to turn it over to my comoderator as our host for today, lisa kimmel. Thank you very much for joining us today. My name is lisa kimmel and im senior counsel here in the antitrust group at crowell and mooring. Like everyone else that youre going it hear from today, before joining the law firm i spent time at the federal trade commission where i was an antitrust and policy advisor to former chairwoman Edith Ramirez and in my work there, i focused on antitrust and competition matters, particularly in the Technology Sector and with the intersection of intellectual property and we want to welcome everybody, and thank you, Federalist Society giving us the opportunity to host this program. With that im going to introduce our Prestigious Group of panelists and first of all, we have the honorable maureen kay oles housen. She was sworn in on the federal trade Commission April 4th, 2012 and designated by the Current Administration to serve as acting chairman in january of 2017. Before joining the commission maureen was a partner at Wilkinson Barker where she focused on ftc issues, competition law, privacy and technology policy. And i want to say that the acting chairman has a very long history of ftc service and before rejoining the commission in 2012, maureen had previously served as both the Deputy Director and director of the ftc policy of planning and i think its responsible for the liberty agenda now. And maureen began her ftc career in the general counsels office. Before joining ftc for the first stint, excuse me, maureen has spent five years at u. S. Court of appeals for the d. C. Circuit serving as a law firm and staff attorney, maureen graduated from distinction from the Antonin Scalia law school from virginia and thank you for joining us and welcome to the prom. To my immediate right. Professor james cooper, an associate professor of law at Antonin Scalia law school at george mason university. James brings over a decade of public and private sector experience to his research and teaching work. And he spent time at federal trade commission served as the director of of policy planning, an attorney advisor to federal trade commissioner. And i want to note that james also spent time here with the antitrust group, a very fine group of crowell and moring and were happy to welcome james back. Focuses on competition and Consumer Protection issues, including privacy, Data Security and restraint on competition, behavioral economics, very interesting, antitrust treatment of vertical practices and price discrimination. James has a ba from university of South Carolina and a ph. D. In economics from emory university. James also holds a law degree magna cum laude at Antonin Scalia school. Allison is assistant attorney general and antitrust unit in the Virginia Attorney generals office. She currently cochairs the National Association of attorneys generals state Action Working Group so the right person to be on this panel. Ms. Allen successfully argued the Summary Judgment motion and 4th circuit appeal on virginia board of medicine and six individual Board Members against an antitrust claim by a chiropractor sanctioned by the board for practicing outside of the statutory scope of practice. Recently ms. Allen represented the commonwealth of virginia in federal and multistate to mergers and worked to challenge and settle other mergers. Before coming to the Virginia Attorney generals office, sara has spent time, eight years at the federal trade commission. So, thank you very much. And with that, i will turn it back over. Great. So, the format of todays program is were going to try to do interactive discussion led by the moderators asking question and reserve 10, 15 minutes at the end for questions from you, the audience. Occupational licenses and state restraints on trade, competition have received significant bipartisan attention in recent years. For example, in 2015, the Obama Administration released a report outlining the growth of such restraint, costs and benefits and impacts on workers and work arrangements. Earlier this year, acting chairman olehousen through the ftc launched the Economic Liberty Task force which im sure shell tell us some about. So, chairman, if you could start us off to give us a little overview what the main concerns are and the issues with such restraints. Great. And thanks corrine and everything and for Crowell Moring for hosting this today. Its something near and deer to my heart and i spent time focusing on this. Its no accident that its something that the ftc has focused quite a witness on. And weve done Consumer Protection and antitrust and occupational licensing and thats kind of at the intersection of those two issues, very often these kind of restraints on entry into a profession are put forth as necessary for Consumer Protection reasons. I think were particularly well placed as an agency to think about that and to say, does that make sense to us . So the issue with occupational licensing, i think this has come to the forefront, because occupational licensing has exploded so going back to 1950s Study Suggests fewer than 5 of occupations required a license. And today, that number is approaching 30 . So whats changed in that time period . And the number of occupations and the types of occupations that licensing has extended to has gotten, i think, you know, beyond where we can say, well, you know, of course you want your job to be licensed and someone who is doing a health and safety related thing to do licensed, but we have cases now where florists are licensed, where interior designers are licensed. Where hair braiders are licensed and so, that say, well, what is the rational for that, why is this happening . Thats sort of where the antitrust side of the analysis comes into play and one way ive kind of characterized this, we, as any enforcers, we need to be alert to private anticompetitive conduct, but the actions of the government can also be anticompetitive, and in a way that is a lot less likely to be eroded by market dynamics. So, i often call, what i call the brother may i problem. And its where you need your competitors permission to enter the market. So thats one of the issues weve seen where we have a board of active Market Participants saying, you know, well, you need this license or, you know, the practice for our North Carolina dental case we won in the Supreme Court, he said the practice of dentistry now includes tooth whitening in the state of North Carolina. What are some of the problems here . The problems are manifold. One of them is anticompetitive problem where you say, well, consumers may be paying more for a service or have fewer choices or there may be less innovation happening because of these onerous licensing requirements, but theres also an impact on workers, where workers have lost the ability to enter a field more freely. I see clark neily back there, he paid wonderful attention to this issue and institute for justice has done wonderful work in this area, but i think thats one of the issues here, what about the individual worker and their ability, even if they have a skill that we all agree requires a license, if theyre moving from state to state, they have to undergo that licensing all over again. Now, certainly that isnt necessarily an ftc antitrust issue. We have focused on a Market Participant saying you cant compete with me. On our advocacy role at ftc, thats where weve tried to talk to states and really, other parts of the federal government about some of these issues. Because theyre hitting certain populations quite a bit more onerously than others, so, one, believe it or not, military spouses, members of the military move a lot. They get deployed around different places around the country and a lot of times the trailing spouse has a license, a job that requires a license, and they have to get relicensed, recertified, undergo tons of training even if theyve been active in the field already. And its led to, i think its one of the contributors to the fact that youve got an Unemployment Rate of almost 20 in this population. And so thats why ive launched my Economic Liberty Task force at the ftc. I see it as an attempt to shine a spotlight on this issue, and certainly, we can continue to bring enforcement action where appropriate, but its mainly an advocacy role and then i talk often about it being a coalition of the willing because i think a lot of groups, consumer organizations, we mentioned the bipartisan appeal that has extended to a lot of, you know, the interest in this topic to a lot of different areas and ive worked with states, Governor Scott walker and i did a joint oped on this issue so i think were at a particularly good time to make progress on this issue, but the problem is, you know, the lack of competition, the higher prices, lower innovation, but also the effects on the workers. Okay. Thank you. Sara, were really interested to hear from the states perspective on occupational licensing issues that the acting chairman. Okay, thank you to the federal society and Crowell Moring to be invited on the panel to be the spoiler on the panel. Id like to start with a disclaimer that the opinions i express today are only mine, they dont reflect necessarily the opinions of general mark hairing or the virginia ags office for National Association of attorneys general and its a little odd for me because at 95 of the time i and my antitrust counterparts in the other state ag offices are the antitrust enforcers, and agencies we work with quite often, ft c d oj. In this, we flip and were the antitrust experts in the state, and so being the state apologist on this panel is a little backwards to me, but so is the position of otherwise staunch states right adds vo cats like senator mike lee and ted cruz and well talk about their bill in a minute. My personal perspective from the state side, i see a lot of value to this wider philosophical discussion about whether too many occupations require licenses and i also basically agree with the Supreme Courts decision, but at the end of the day it should be left up to the states to decide how to structure their economies, how to structure their governments and how to provide for the health, safety and welfare of their citizens. I applaud the ftcs effort to educate state legislators and others about dangers to the National Economy of too much licensing, and i support their enforcement efforts, however, i do not support the federal governments attempts to decide them for themselves or dangle state action as a carrot in order to provide active supervision in the manner it sees fit or into adopting its philosophy about the appropriate profession to license. Under current case law, principles of federalism allow states to decide which occupations they would license as opposed to professions that only require certification, registration or have no restrictions at all. And once the state legislature has authorized a licensing scheme with the board of active Market Participants as Board Members, the only questions that remains in order tore the board and members to receive state action immunity are whether they meet the two prongs, which is one was the board following a clearly articulated and affirmatively expressed policy for state competition and two, whether the board was actively supervised by a disinterested state official to assure the board was with that policy. There was a decision whether they had to say whether the board was with the states policy or whether it was undually burdensome. But theres no requirement that the active supervisor require they receive the least restrictive alternative. Theres no ability for the active supervisor or the state courts to disregard the states intent to in a lansing scheme. States could easily decide to get rid of their state boards and switch to the oversight of licensed occupations from the board to traditional, sorry, state agencies, with fulltime salaried state employees. That gets rid of the need for active supervision, but has many disadvantages, the most would be to apply millions to all of those people. State boards currently serve with no pay in most cases. It would not necessarily change the states philosophy which occupations to license and harder to maintain an antitrust challenge against the state. While it would take care of problems of Board Members acting in individual self interest, it would not capture, sympathies with those they regulate. And Board Members who practice in the profession regulated are usually the best people to evaluate standard of care cases. Many cases involve ethics violations or behavioral standards of licensees, such as medical licensees who operate while intoxicated or take sexual improprieties with their patients or lawyers to dip into escrow funds. While a licensing regime itself may restrict competition, most individual licensing decisions are adminsteral either of the applicant checks the boxes for criteria to receive a license or she doesnt. In that case it seems massively unfair to subject the board or even worse, to subject the individual Board Members to potential image liability for a decision that the state legislature made and that the Board Members were statutorily required to follow. Thank you. I, in particular, really appreciate the diverse views and hope we will have a dialog. Any thoughts from other speakers. Id like to weigh in on your points and i think we agree on many, many things. I also, you know, im sensitive to the fact that we operate in a federal system, and that the states are sovereign, and they can they can take these actions. I think that theres a twofold question here though, is should they be taking these actions . I care a lot about liberty and i want to advocate that before any policy maker, whether its at the federal level or the state level and i think thats a lot of what were trying to do here is to say, is this really, you know, best for your citizens . Is it a true application of public choice here where weve got concentrated benefits to the providers and theyre going to lib lobby and say, here are the good things that the licensing regime is going to do and the consumers who will pay the price dont know whats happening or their interests are diffuse so theyre not going to be there. So, were trying to step into the shoes of the consumers and workers and say, hey, consider these things, these things, too. So on the second issue, for the state action doctrine, i think thats what its really trying to do. Its trying to say, is this truly an action of the state, rather than the state and one of my favorite phrases, costing a cloak on the state authority on what is essentially private economic conduct. So i think thats the other factor. Is this truly the states own action rather than sort of deinvolving that to private actors who will often act in their own private interests. Well, i know you wanted to weigh in and i would quickly respond that Board Members, you know, if you talk to them, they are really trying to do their best in the most instances, maybe they are acting in their self interest sometimes and sometimes its blatant like the North Carolina dentist case, but i think a lot of the cases are on the margins where they really think theyre doing the right thing, and so its it seems a little paternal for the federal government to say, should you be making these decisions . We dont think you should and were going to make it so you dont get state action immunity unless you do it the way we think you should do that. So that was my point on that. Well, i think that theyve covered most of the ground here, but the only thing i want to add is, well, i just want to make sure when were talking about occupational licensing regimes, i think that sara alluded to this, that theyre talking more broadly, not just limiting in fact, setting up credenti