As a proud member of the Writers Guild of America (WGA), my wife has been on strike for over three months. If you think that means she’s not working, think again. Picketing in a hot labor summer is harder than regular work. So much so that, to get out of picketing, she prefers to do things like drive two hours to show up at a board meeting of the California State Teachers’ Retirement System (CalSTRS) and explain why, as shareholders in Netflix
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Unfortunately, studios have taken a more belligerent approach. During the second week of the strike in May, NBCUniversal commenced sidewalk-obstructing construction on the west side of its Universal Studios lot, forcing picketers to dodge traffic on busy Lankershim Blvd. Then a few weeks ago, just after 11,000 striking writers were joined by 160,000 better-looking actors, a dozen bushy Ficus trees that had provided NBCUniversal picketers with much-needed shade were pruned to the point of oblivion. Oddly, no other trees around the lot were trimmed. And as many tree experts pointed out, given the risk of permanent damage, only an idiot or villain prunes trees at the height of summer. Noted one tree lover, “they might as well have pulled them from the ground and burned them in forges beneath Isengard.”
In response to Tree-gate, NBCUniversal issued a statement saying that although they “support the WGA and SAG’s right to demonstrate,” they had always cut back the trees at this time of year – a contention easily refuted by Google
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Professional licensure is supposed to be an argument-ender. The tree killers were licensed? Okey dokey, no more questions! Licensed professionals mean highly skilled and putting consumer protection and safety first. For most of us, licensure is ironclad, bulletproof, unmitigated good. It’s your birthday, Christmas, and every holiday all rolled up into one (although in this case, probably not Arbor Day). One striking scribe mocked NBCUniversal’s attempt at playing the licensure card by predicting the studio’s next announcement: “in partnership with licensed alligator breeders, we let loose 400 gators along Lankershim (as we do every year!) and apologize for the unintended challenges this caused.”
But defer to licensure at your peril; it’s far from infallible. Because while licensure can end arguments, it may be doing the same for skill development.
For many professional associations that set licensing requirements, it’s one-and-done: no continuing education required. Once you’re licensed, you know everything you’ll ever need to know to do your job. Although the professions where this doesn’t raise eyebrows are those where the purpose of licensure is questionable in the first place e.g., notaries, hairstylists, and – of course – eyebrow technicians. In contrast, white-collar professions like medicine, psychology, accounting, teaching, and engineering have continuing education requirements. At a time when losing one’s license is nearly synonymous with lawyers who once worked for former President Trump, let’s take a look at skill development in the legal profession.
The last time so many lawyers surrounding a president got in hot water was the original Tree-gate: Watergate. How did the profession respond? With a little number called continuing legal education (CLE). Today, 46 states mandate CLE so that lawyers can be “competent regarding the law, legal and practice-oriented skills” and hopefully avoid destroying public confidence in the profession by breaking into the offices of political opponents or conspiring to defraud the United States. Most states require 12-15 hours per year. One researcher estimated that in 2017, nearly 1M lawyers dropped $345M on 11.5M hours of CLE.
How are lawyers continuing to educate themselves? As you’d expect, there’s lots of ethics on offer. But also a flotsam and jetsam of courses on adult entertainment, yoga, drinking, and how to leave a bequest for your pet demonstrating little connection between CLE and practical skills. With a handful of exceptions – trial lawyers in Georgia, lawyers who are also notaries in Puerto Rico – lawyers can take twelve hours of whatever strikes their fancy, prompting critics to deride CLE as THOA: Twelve Hours of Anything.
Equally troubling, no state – or legal employer that I’m aware of – has any system or process for verifying whether CLE leads to any learning or skill development. Georgetown Law’s Rima Sirota points out that none of the studies on CLE “provide any reason to believe that the current mandatory CLE system results in better lawyering than would be the case without CLE requirements.” Furthermore, there’s no evidence that CLE requirements reduce complaints against lawyers. Willamette University College of Law professor David Friedman is more succinct in his view of CLE: “It started off as a cause. Then it became a business. Then it became a scam.”
Why has CLE become a joke? One reason is that it’s mandatory. So lawyers view it as a box to be checked rather than valuable skill and professional development. Second, the moat created by licensure – the legal profession has a wide moat: a bar exam that spans 12 hours over 2 days – provides an excuse for not taking skill development seriously i.e., we passed the difficult exam, so we must know everything we need to practice. Sirota cites one study that found a curious correlation: states with no CLE requirements had lower rates of complaints against lawyers.
While continuing education in other professions may not be as silly or scandalous as law, most are similar: mandatory hours, unlimited choice, no connection to practice or validation of professional development. But if licensure and its kissing cousin, mandatory continuing education, have little, no, or a negative connection to skills – if licensure is where skill development goes to die – it raises a bunch of questions. First, if licensing exams are supposed to test whether professionals are fit for practice, why are they only administered once rather than repeatedly? Willamette’s Friedman made this point last year in a UC Irvine Law Review article titled Do We Need a Bar Exam… For Experienced Lawyers, highlighting data showing that lawyers are more likely to face disciplinary problems later in their career. Per Friedman: “lawyers can practice indefinitely without any independent entity overseeing their competence.” Friedman cites the example of Dennis Hawver, a Kansas defense attorney who told a jury that his client was “a professional drug dealer” and a “shooter of people” and, after his client had been found guilty, that “the killer should be executed.” (Hawver continued to practice for another nine years until his disbarment hearing at which he dressed up as Thomas Jefferson, wig and all, shouting “I am incompetent!”) Why does the licensing-industrial complex only focus on quality assurance at the entry level? As Friedman notes, “the screening function of a standardized test may improve over time, as lawyers confront more problems in the operation of their businesses, their lives, and their well-being.” A big reason: the comforting fiction that mandatory continuing education leads to skill development or maintenance.
Not surprisingly, lawyers don’t thrill to the idea of continually retaking the bar exam. Friedman postulates this indicates not merely lassitude, but a fundamental lack of confidence in the connection between the licensing exam and readiness to practice. If so, are we going about professional licensure all wrong?
In most developed countries, governments retain control of licensing standards. As a result, fewer professions are deemed to require licensure. In Europe most entry-level healthcare positions aren’t licensed and therefore provide an accessible point of entry to health professions. Meanwhile, in the U.S., lazy states delegate the gatekeeper role to professional associations or guilds. Associations are more than glad to do it because digging a moat around a profession invariably results in double-digit percentage increases in practitioner income. As one commentator recognized, the way states run occupational licensure is “roughly akin to requiring the Commodity Futures Trading Commission to be run by active options traders.” This is the primary reason 21 states require a license to work as a travel guide and you need a license to be an interior designer in Florida. Today, nearly 30% of U.S. jobs now require licensure compared to 10-20% in most European countries.
Meanwhile, licensure has been making a hash of America’s workforce. Professional associations typically require career launchers to not only complete a licensing exam, but also a degree. Florida interior decorators must pass the National Council of Interior Designer Qualifications (NCIDQ) exam, but not before they earn an interior design degree approved by the Council for Interior Design Accreditation. Physical therapy assistants must pass the National Physical Therapy (NPTE) exam, but not before earning a degree approved by the Commission on Accreditation in Physical Therapy Education, including coursework not dissimilar to the first year of medical school (despite the fact that physical therapy assistants aren’t permitted to help patients do much more than stretch). The time, tuition, and foregone income required to take (and re-take) licensing exams and attempt (and hopefully complete) multi-year degree programs have resulted in talent gaps and barriers to career launch for diverse populations. According to the National Council on Teacher Quality, 75% of white candidates eventually pass the Praxis exam to become a K-12 teacher while success rates for Black and Hispanic candidates are only 38% and 57% respectively. Licensure also keeps the formerly incarcerated out of good jobs that could help them get their lives back on track. Finally, licensing degree requirements form an insurmountable barrier to building apprenticeship programs in these professions as employers aren’t willing to hire and pay apprentices for the duration of a multi-year degree program i.e., until apprentices are licensed and able to contribute in full.
If the combination of entry-level exams that are usually “far too distant to serve the function of protecting… client[s]” plus Twelve Hours of Anything fails to guarantee that professionals are highly skilled, is licensure worth the penny? For a shocking number of professions, the answer is no. States would be doing their populations a service by ceasing to delegate licensing authority to greedy professional associations and, instead, starting to govern in the best interests of their workforces and the people those workforces serve.
If associations and guilds want to short-circuit the burgeoning de-licensure movement, they’d be well advised to get serious about skills. While mandatory continuing education in most licensed professions is skills theater, it doesn’t have to be that way. Every six months, airline pilots must complete 3-hour proficiency checks in aircraft or simulators. And the associated continuing education – coursework and simulator time – is directly related to the skills required to safely operate commercial aircraft. (Pilots are also required to pass medical exams to ensure they’re physically fit to fly.) Continuing medical education shares some similarities with CLE: doctors are required to take a certain number of hours each year and many select barely-relevant amenities-rich courses paid for by pharma companies. But 82% of doctors are board certified in a specialty area. And with this status (linked to hospital staff privileges and insurance reimbursement) comes the responsibility of practice-specific continuing medical education. Practice-specific CME involves individualized learning plans, simulations, and assessments, not just online courses. Sirota believes practice-specific CME charts a path for other professions. Friedman suggests “mandatory specialty testing… would serve notice to clients that a lawyer is strongly qualified to practice in a certain area.”
Between keeping planes in the air and patients healthy, we seem to be doing better with licensure when lives are on the line (although apparently not – as the example of Dennis Hawver shows – criminal defendants facing the death penalty). Other licensed professions should take note because skills-based learning and skills-based hiring are likely to be followed hard upon by skills-based licensing.
Far too often, licensure results in a one-night stand when what’s warranted is a lifelong relationship. Professions that wish to maintain the privilege and benefits of licensure should be required to assume responsibility for skills over the entire career trajectory – not just at entry. This means a fundamental transformation of continuing education. Although, at least for the legal profession, it’s possible that any time spent on CLE is positive from an ethical standpoint i.e., time not spent lying and cheating clients, let alone advising studios that it’s OK to cut down leafy, shade-giving trees during a strike as long as they employ licensed arborists.
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