Sherman and Nelson on the Weak Historical Case for Regulating Occupational Speech

Paul M. Sherman and Daniel Nelson of the Institute for Justice have posted The (Weak) Historical Case for Licensing Speech:

Increasingly, governments use occupational licensing to control who may speak on certain subjects and what licensees may say. The Supreme Court has twice rejected governments' doctrinal justifications for excluding occupational speech from First Amendment protection-first in NIFLA (2018) and again in Chiles (2026). But it has left open one possible source that could justify such exclusion: "persuasive evidence" of a "heretofore unrecognized" tradition of regulating occupational speech. This Article--the first to fully examine whether any such tradition exists--shows it does not.

This history has direct implications for today. Protecting occupational speech would protect against government controls on conversations between professionals and their patients that extend beyond the "conversion therapy" at issue in Chiles, like gender-affirming talk therapy. And it would undermine modern-day bans on "unlicensed" advice, including bans on who may provide legal advice, which have spurred our nation's current "access-to-justice crisis. 

--Dan Ernst 

AJLH 59:4

American Journal of Legal History 59:4 (December 2019) is now available online:

A Counter-Culture of Law: Jurisprudential Change and the Intellectual Origins of the Critical Legal Studies Movement, by Juhana Salojärvi

Railway Sparks: Technological Development and the Common Law, by Mark L Wilde

Machinations of the British Medical Association: Excluding Refugee Doctors from Queensland’s Medical Profession, 1937–1942, by Gabrielle Wolf

Book Review

David Harbecke, Modernisation Through Process. The Rise of the Court of Chancery in the European Perspective, reviewed by Lorenzo Maniscalco

--Dan Ernst

Burrell and Kelly on British medicine and patents

Robert Burrell (University of Sheffield) and Catherine Kelly (University of Bristol) have co-authored the article, "Myths of the medical methods exclusion: medicine and patents in nineteenth century Britain" in Legal Studies 38 (2018): 4, 607-26. Here's the abstract: 

This paper explores the interaction of British medical practitioners with the nascent intellectual property system in the nineteenth century. It challenges the generally accepted view that throughout the nineteenth century there was a settled or professionally agreed hostility to patenting. It demonstrates that medical practitioners made more substantial use of the patent system and related forms of protection than has previously been recognised. Nevertheless, the rate of patenting remained lower than in other fields of technical endeavour, but this can largely be explained by the public nature of medical practice during this period. This paper therefore seeks to retell the history of the exclusion of medical methods from patent protection, an exclusion whose history has produced a substantial body of scholarship. However, its aims go beyond this in that it also seeks to illuminate how medical practitioners engaged with the broader political and policy landscape in order to secure financial remuneration for their inventions. Through an exploration of how prominent doctors interacted with Parliament around claims for a financial reward, it demonstrates that doctors sought to use reputational advantage to leverage financial success and the important role that Parliament could play in that process.

Further information is available here.