burying the competition (and the constitution?)
Oklahoma only lets licensed funeral directors sell caskets, and obtaining a license entails a considerable expenditure of time and effort. In his piece titled Coffin Break: Busting Oklahoma's casket cartel would cut the cost of dying (Dec. 31, 2004), Jacob Sullum at Reason hopes the Supreme Court will decide to resolve a conflict in the circuits over the propriety of such laws.
- In Powers v. Harris, the 10th Circuit said Oklahoma may restrict competition in this way ["Hornbook constitutional law provides that if Oklahoma wants to limit the sale of caskets to licensed funeral directors, the Equal Protection Clause does not forbid it."]
- In Craigmiles v. Giles, the 6th Circuit said Tennessee may not ["This measure to privilege certain businessmen over others at the expense of consumers is not animated by a legitimate governmental purpose and cannot survive even rational basis review."].
Sullum says the privileges and immunities clause of the 14th Amendment to the U.S. Constitution once included, and should again be interpreted to protect, "the ability to make an honest living free of official harassment." I'm not an Immunities Clause scholar, but I'm not at all certain that such a right ever existed in a nation where states quite regularly granted monopolies ever since colonial days. The 6th Circuit's approach in Craigmiles, using Due Process and Equal Protection clauses to assure that there is a legitimate state interest and rational basis for a restriction, seems more likely to prevail.
If you're dying to know more about competition and consumer protection in the funeral industry, I suggest checking out the Federal Trade Commission's website. The FTC has long worked to improve competition, options, and information for consumers of funeral-related services. For example:
- The Commission held a panel on Selling Funeral Caskets Online as part of its Workshop on Efforts to Restrict Competition on the Internet (Oct., 2002); scroll down to Caskets/Funerals to find links to submissions from interested sellers, regulators, academics, and consumers.An FTC press release noted that "In addition to cost savings, online casket sellers can offer consumers a greater variety of choices, such as individualized caskets. Many states, however, require that casket purchases be made only through a licensed, bricks-and-mortar vendor."
- The FTC Funeral Industry Rule (16 CFR Part 453 to planning and shopping for funeral services. ), requires funeral directors to disclose information about funeral prices, goods, services, and options. The text of the Rule is available, along with compliance information for the industry, and a Consumer Guide
- The Commission filed an amicus brief in the Oklahoma Powers Case.
Like Sullum, I hope the Supreme Court takes up this issue and helps to remove unnecessary restrictions on competition. But, it is a simple fact that Federalism will often mean that an individual state can impose unwise laws upon its citizens.
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