25 August 2004
"All professions," said George Bernard Shaw, "are conspiracies against the laity." Kim Powers and Dennis Bridges would probably agree at this point.
Powers and Bridges, operators of Memorial Concepts Online, sell funeral caskets over the Internet. They discovered that they could not sell them in Oklahoma, Powers' home state, without being licensed by the Oklahoma State Board of Embalmers and Funeral Directors, a process which would require them to undergo, among other things, a 60-credit program of undergraduate training. Noting that very little of said program actually has anything to do with selling caskets, they sued the state, charging that the state board imposed "unreasonable and arbitrary barriers to entry into the casket retail market."
They lost; they appealed; they lost the appeal.
Judge Tacha of the Tenth Circuit Court of Appeals writes:
[W]hile baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments [note omitted]. While this case does not directly challenge the ability of states to provide business-specific economic incentives, adopting a rule against the legitimacy of intrastate economic protectionism and applying it in a principled manner would have wide-ranging consequences.
[B]esides the threat to all licensed professions such as doctors, teachers, accountants, plumbers, electricians, and lawyers, see, e.g., Oklahoma Statutes, title 59 (listing over fifty licensed professions), every piece of legislation in six states aiming to protect or favor one industry or business over another in the hopes of luring jobs to that state would be in danger. While the creation of such a libertarian paradise may be a worthy goal, Plaintiffs must turn to the Oklahoma electorate for its institution, not us.
And Fritz Schranck observes:
The plaintiffs' effort to restore some semblance of free market capitalism is certainly admirable. They obviously still have their work cut out for them in the Oklahoma legislature.
Indeed. In the past five years, three bills to break up the Board's monopoly have been introduced into the state House, and none of them went anywhere. The Oklahoma Constitution, a monster of a document which manages, sometimes micromanages, everything that happens in the state, isn't particularly amenable to amendment, not so much for any inherent characteristics but for the general unwillingness of lawmakers to reduce the amount of oversight they're allotted.
In the meantime, if you want to be buried here, you'll get a quality box from a professional who is licensed by the state. And you'll pay through the nose for it.
(Update, 2:45 pm: Todd Zwycki isn't impressed either: "[G]iven the complete lack of any link between box-selling and embalming, it is surprising that the funeral home directors don't just go ahead and have their monopoly extend to all forms of box-selling, including cardboard boxes and luggage." Please don't give them any ideas.)