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additional studies that are not mandated by law but under-

taken out of self-interest.

While the benefits of UPL prohibitions are negligible,

their costs are considerable.  By raising the cost of enter-

ing the legal services market, UPL statutes also raise the

cost of obtaining legal assistance.  Some consumers cannot

afford help.  As a result, they must either do nothing or

attempt to handle the problem themselves.  When high stan-

dards are set by the political process rather than the mar-

ket, prices of some legal services are inflated and con-

tracting options of consumers are diminished.

But this is not just a dollars and cents, costs versus

benefits issue.  UPL prohibitions are an attack upon free-

dom.  They threaten and sometimes impose legal sanctions

against individuals merely for having rendered a legitimate

service that another person desired.  Legal punishments

ought to be reserved for those who have harmed or threatened

others, not visited upon peaceful individuals who wish to

serve others.  Liberty is diminished when the law compels

practitioners and aspirants to comply with a competition-

suppressing licensing mandate before offering services to

willing buyers.

UPL prohibitions and many similar attacks on economic

liberty have flourished because for decades the Supreme

Court has chosen to accord economic liberty cases only

minimal scrutiny, tantamount to a rubber stamp for govern-

ment regulations.  There is no reason to assign economic

liberty to the underworld of constitutional jurisprudence.

If the Court were to move to a higher level of scrutiny in

economic liberty cases, insisting that the state demonstrate

that it has chosen the least intrusive means of accomplish-

ing an objective of compelling state interest, UPL prohibi-

tions would have to be stricken.  Until that happens, state

legislatures can and should repeal their UPL prohibitions,

thus allowing their citizens to benefit from a free market

in legal services.

Notes

1.

Furman's battles with the Florida Bar are reported in

Florida Bar v. Furman, 376 So.2d 378 (1979); and Furman v.

Florida Bar, 451 So.2d 808 (1984).

2.

A few states allow prospective bar members to undertake