The oral argument before the U.S. Supreme Court whether market participants appointed to regulate occupational licensing may be deemed private actors for antitrust purposes

This is the case of The North Carolina State Board of Dental Examiners v. Federal Trade Commission which has made it all the way to the U.S. Supreme Court.

The essence of the case is that private dentists on the North Carolina Board of Examiners pursued lay individuals engaged in teeth whitening for unauthorized practice of dentistry, and the question is whether that is proper enforcement of state interests or private anticompetitive practices.

The interesting part is that there is an amicus curiae brief filed raising the question that the state bar associations are engaged in the same type of anti-competitive practices as the dental associations.

The case was heard by the U.S. Supreme Court in October of 2014.

Listen to the oral argument - it is quite interesting.  The link to the oral argument in front of the U.S Supreme Court is located here.

The way the legal profession is regulated (at least in New York) is by disciplinary committees where the absolute super-majority of such committees consists of practicing private attorneys, all members of the committees are appointed by the courts without any supervision and in complete discretion, there is no oversight over committee's work and there is no discipline over misconduct of committee's members.

There are no constraints, therefore, to use the membership of the committee for any number of anticompetitive practices rather than for the direct purpose of protecting the public, and what helps that is:

(1) supermajority of the committees are practicing private attorneys;
(2) there is no oversight over appointment of members;
(3) there is no oversight or discipline over conduct of members;
(4) discretion of members to prosecute or not to prosecute is absolute;
(5) members are free to pursue their own competitors and to absolve politically-connected attorneys turned in for prosecution in exchange of accepting them as private clients or law partners.

All of the above hardly characterizes a state regulations, but rather using the state regulatory scheme to promote anti-competitive self-interest of the politically connected private lawyers, to the detriment of the consumers.

Let's see what the U.S. Supreme Court will rule regarding the dentists' case.

The appeal is from the decision of the U.S. Court of Appeals for the 4th Circuit affirming the decision of the Federal Trade Commission that the North Carolina State Board of Dental Examiners illegally thwarted lower-priced competition by engaging in anticompetitive conduct to prevent non-dentists from providing teeth whitening services to consumers in the state.

The amicus brief of LegalZoom and others supporting the position that the practice of the states to use private professionals to regulate other professionals may be regarded as a private tool of quashing competition can be found here.

The amicus brief of the North Carolina bar association supporting the ongoing regulation of the legal profession through the use of private lawyers can be found here.