Academic journal article William and Mary Law Review

The (Limited) Constitutional Right to Compete in an Occupation

Academic journal article William and Mary Law Review

The (Limited) Constitutional Right to Compete in an Occupation

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                                   1114  I. THE CURRENT STATE OF OCCUPATIONAL LICENSING                1116     UNDER THE CONSTITUTION     A. Fourteenth Amendment Challenges                         1116     B. First Amendment Challenges                              1123     C. A Constitutional Right to Earn a Living?                1127 II. THE FUTURE OF OCCUPATIONAL RIGHTS UNDER THE                1130     CONSTITUTION     A. Rationality Review and the Circuit Split                1130        1. Naked Preferences and Economic Protectionism         1131        2. Are Weaker Rights Against Economic Regulation        1134           Justified?        3. The Supreme Court and Economic Rights Under the      1137           Fourteenth Amendment     B. The First Amendment and Professional Speech             1138        1. Locating Professional Speech in the First Amendment  1139           Framework        2. Content-Neutral? Conduct not Speech? Or a New        1143           Category of Speech? CONCLUSION: THE FUTURE OF THE "RIGHT TO EARN A LIVING"         1145 MOVEMENT 

INTRODUCTION

Braden Boucek knew the type and so would anyone who has seen a schoolyard bully at work. (1) Boucek watched the attorney for the Tennessee Board of Cosmetology and Barber Examiners preside over a disciplinary hearing where a handful of unlicensed barbers--almost all lacking representation by a lawyer--would lose their livelihoods. (2) The case that caught his attention was that of Elias Zarate, who told the board that he was sorry that he cut hair without the State's approval, but he was grateful for the board's invitation to the hearing today to help him get a license, especially since his Memphis barber shop was his only means of supporting himself and his baby daughter. (3) The board's attorney explained there would be no help with a license and Zarate owed $2,100 in fines, including a charge for the board lawyer's time. (4)

To Boucek, a leading attorney in the movement to challenge unjust licensing laws in the courts, this case fit within the typical pattern of disciplinary hearings before licensing boards--if you have a lawyer, you win, if you don't, you lose. (5) It seemed to Boucek the boards do not like an even playing field. (8) So it did not surprise Boucek--who was at the hearing representing someone else--that Zarate lost his hearing, which lasted all of five minutes. (7) What struck Boucek was a detail that Zarate shared when explaining his story: Zarate had never graduated from high school. (8) Boucek watched as Zarate approached a board staff member to ask how to pay the fee and what, if anything, he could do to legally pursue his profession. (9) When the staff member explained that Elias should enroll in barber school, Boucek could not remain silent. (10) He advised Zarate that he should not let the board further deceive him. (11) Zarate could spend over a year in school, incur $20,000 in debt, and still not be allowed to cut hair. (12) Tennessee law bars all high-school dropouts from barbering. (13) Boucek had hoped to challenge the law in court once he found the right plaintiff. (14)

Elias's case against the State of Tennessee is part of a national movement to invalidate unfair licensing requirements under the Constitution by convincing courts to recognize a constitutional "right to earn a living." (15) The movement is led by lawyers such as Boucek who share a commitment to libertarian values that chafe at the idea of needing a government's permission to work. (16) By far, the largest share of these cases is brought by the Institute for Justice (IJ), a public interest law firm dedicated to vindicating libertarian causes in court. (17) But smaller firms, such as Boucek's Beacon Center in Tennessee, are important contributors. These firms all rely on private donations, because these suits primarily seek injunctive relief rather than damages. And while attorney's fees are awarded in successful cases, winning a judgment is rare. …

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