When the decision-maker and the expert in regulation of the market are market participants - protection of consumers goes out the door

Heard an argument before the U.S. Supreme Court today (see the previous post) for and against using private professionals, market participants, for regulation of the same market.

The case was about teeth whitening and whether it is the practice of dentistry.

The U.S. Supreme Court justices definitely were not experts in dentistry.

Yet,  I heard arguments from the judges about who should regulate neuro-surgeons and why shouldn't neuro-surgeons (experts) regulate neuro-surgeons.

My question to the judges then is - why are they there on that bench and why do they allow themselves to decide a case about regulation of dentistry instead of allowing dentists to get on that bench and decided it for themselves?

The ultimate question, in my opinion, is the distinction between the two groups which are now conflated:

(1) the panel of who decides for the benefit of protection of consumers (which is the whole declared point of occupational licensing);  and

(2) the experts that the panel that is vested with making such decisions use to inform them, as neutral experts, of what they need to know.

That is exactly the same as what is happening in courts.

A judge (like the U.S. Supreme Court justices in this case) is not an expert in dentistry, chemical engineering, dentistry, medicine, whatever is the topic of the case in front of the judge.

(If a judge is an expert in law, and the case is about regulation of lawyers, the judge should not be using his or her expertise, because that will mean utilizing unsworn and un-told testimony of the judge as a witness on behalf of one of the parties.)

Yet, when the judge or the jury, however the case is heard, by a jury trial or by a bench trial, does not have enough knowledge in a particular field to make an informed decision, that is when the party bearing the burden of proof must bring forth before the court a NEUTRAL expert to provide this missing information.

A practitioner in the field is hardly a neutral expert.  For purposes of a case involving occupational licensing, neutral experts would have to be researchers with knowledge in the same field, but with no financial motivation in restricting competition in the profession.

Lawyers are a knowledgeable bunch and they know exactly what is going on and why they want to keep the status quo the way it is.

Unlike a court where both the decision-maker and the expert informing the decision-maker must be neutral, disciplinary proceedings in occupational licensing are where the decision-maker and the expert informing the decision-maker are ONE and NOT NEUTRAL - which is a big anti-trust and anti-competitive problem.

Such a regulatory scheme which is allegedly designed to protect the public, is in fact designed to do the opposite.

In the legal profession, where all judges on the panels regulating lawyers are lawyers themselves who, on expiration of judge's terms or on retirement, will practice law, even though they are not practicing (presumably) at the time of presiding over the proceedings, such judges may not be 100% considered not private market participants, at least with a vested, but delayed interest in restricting competition in their profession for personal gain.

What should be happening in the legal profession is that it should not be regulated at all, since regulation of lawyers by the government strips lawyers of independence when a necessity arises, on behalf of clients, to challenge actions of any of the three branches of the government, and strive to obtain an impartial judicial review of their claims.