License to Uber: Using Administrative Law to Fix Occupational Licensing


This Article explores courts’ ability to restrict occupational licensing regulations at the state and local level. In recent years, governments have extended licensing requirements well beyond their traditional boundaries. The literature criticizes these requirements as protectionist measures that stifle new entry, entrench inequality, and threaten the emerging sharing economy. The harder question, however, is whether these new requirements are illegal. This Article argues that they are, but that challengers should be using different doctrines to confront them. Current legal challenges depend on constitutional and antitrust law doctrines, both of which have doctrinal and normative limitations. Constitutional doctrines require a revival of Lochner to be effective, while antitrust law is doctrinally limited and expensive to enforce. Accordingly, I make the novel claim that courts should apply administrative law doctrines to scrutinize and strike down irrational licensing regulations. Administrative law principles are more likely to succeed and are more easily reconciled with both current doctrine and legislative supremacy. The Article therefore provides courts with a viable doctrinal toolkit to scrutinize licensing regimes without resorting to a local Lochner approach that is less practically effective and that raises concerns about courts’ democratic legitimacy. Because administrative law doctrines provide more credible legal threats, they are also more likely to generate political pressure for reform.

About the Author

Professor of Law, Loyola University New Orleans College of Law.

By uclalaw