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Friday, February 27, 2015

Teeth Whitening for Lawyers

Thanks to prawfsblawg for having me and to Dan Markel for having been such a welcoming presence when I first entered academia a few years ago.  Most of my posts will focus on areas of criminal law/procedure, but today I want to look at Unauthorized Practice of Law (UPL) rules (proscribing who can practice law, usually defined incredibly broadly, and enforced mainly by bar associations) in the context of a recent Supreme Court decision. 

In North Carolina State Board of Dental Examiners v. FTC, decided on this past Wednesday, the Supreme Court ruled that North Carolina's dental board could not restrict non-licensed teeth-whiteners from beautifying North Carolinians' smiles.  This case may have more impact on lawyers, and particularly bar associations, than you might think.  The Court relied heavily on an earlier ruling holding that bar associations, who used their UPL rules to prevent nonlawyers from providing "legal" services, came under the ambit of the Sherman Act.  

Despite that ruling, bar associations continue to apply UPL rules to inhibit competition not only from nonlawyers who wish to appear in court (traditional lawyer activity) but to those who wish to fill out simple contract forms (to purchase a home for instance), or advise a friend on her will.  I, and other more prominent scholars, have argued that these rules are not only anticompetitive but also do a great disservice to the 3/5 of American plaintiffs who appear pro se because they cannot afford an attorney, not to mention the millions more who forgo advice on transactional arrangements for the very same reason. The mantra from bar associations is that these rules protect the public interest, but, as in the N.C. dentist case, it is often hard to see whose interest is protected other than the professional degree-holders.  

I am curious to see whether this recent case will revive challenges to UPL rules.  I am also curious to hear arguments from those who believe UPL rules actually do serve the American public.

Posted by Kate Levine on February 27, 2015 at 01:30 PM in Blogging | Permalink


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Posted by: Dentist queen street east | Jan 20, 2019 4:19:54 PM

What an argument... But still, a cosmetic dentist can still make your teeth sparkling white!

Posted by: Sue M. Hite | Apr 18, 2015 5:55:24 PM

A little off topic, but everyone should compare Kennedy's assertion that the North Carolina Dental Practice Act doesn't address teeth whitening with N.C. Gen Stat. 90-29(2)(b):

(b) A person shall be deemed to be practicing dentistry in this State who does, undertakes or attempts to do, or claims the ability to do any one or more of the following acts or things which, for the purposes of this Article,
constitute the practice of dentistry:
(2) Removes stains, accretions or deposits from the human teeth;

I understand that it could be argued that teeth whitening falls outside of this, but it seems like a pretty bad argument to me. At the very least, Kennedy should have addressed this in the opinion.

Posted by: My $0.02 | Feb 27, 2015 6:18:15 PM

With a PhD, you can teach college teacher-training courses for 20 years and still be disqualified from teaching English in high school for lack of a credential that requires completion of a teacher-training course!

What a country!

Posted by: Jimbino | Feb 27, 2015 4:01:26 PM

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