June, 2019

The Undertaker's Cut

Challenging the Rational Basis for Casket Licensure
  • Daniel J. Smith

    Associate Professor of Economics, Troy University
  • Noah J. Trudeau

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Even when occupational licensing restricts entry to a profession, raising prices without providing a worthwhile increase in consumer safety or quality, it can be upheld by US courts using the rational basis test. The rational basis test impels courts to seek out hypothetical justifications to support licensure. As some courts have found that even protectionism itself provides a rational basis for licensure, courts using the rational basis test often fail to overturn abuses of occupational licensing. We challenge the rational basis test by analyzing Oklahoma’s Tenth Circuit Court’s Powers v. Harris case, which upheld casket licensure under the rational basis test. We find no rational basis to support casket licensure when it comes to promoting public health or preventing fraud. In addition, we argue that, contrary to the decision, protectionism does not provide a rational basis for casket licensure.