If you perform services for other people, there are basically two sets of laws: labor law and common law. If you are an independent contractor your relationship with people you work for is completely contractual. Neither buyers nor sellers have any obligations other than what has been agreed to. If you are an employee, however, there are laws governing the minimum amount you must be paid, how many hours you can work without a change in pay, etc.
Should federal courts protect everyday people who choose to work for Uber or Lyft, or who decide to rent space via AirBnB? Should people be free to safely deploy their time, cars, and homes in ways that serve others and earn revenue? Or are these contractual agreements open to state and local regulators on grounds other than protecting public safety? (Public safety can be better protected through certification and insurance, but that’s another story.)
John Goodman’s article connects to a question asked the first day at last week’s Calvin Coolidge Foundation debate camp
about F. A. Hayek’s book The Road to Serfdom
. The notes and links below discuss of this connection, which should be helpful for NCFCA policy and LD topics on federal courts and privacy.
The Road to Serfdom (pdf)
is online on the IEA website. Most of Hayek’s books are scholarly inquiries on law and economics, but this one was written for general audiences. It is often the only book academics are familiar with, so when they criticize Hayek’s writing as simplistic or fear-mongering, this is the book they are referring to. It was written right after WWII and claimed a natural progression from national planning and regulation to fascist policies.
|Alternate title: “Hope and Chains”
Hayek and his ideas played a key role in economic reforms in the UK and US in the 1980s. Hayek advised WWII war pilot and war hero Antony Fisher, a successful entrepreneur in the chicken industry, to instead of going into politics start a think tank to influence the “climate of ideas” in the UK.
The IEA, Institute for Economic Affairs
held conferences for scholars and journalists, and published books and pamphlets on the errors of planning and socialism. Margaret Thatcher was reading IEA publications through her early career in politics, and passed many of the IEA’s proposed economic reforms as as Prime Minister from 1979 to 1990.
David Theroux founded and was President of the Pacific Research Institute, and later left to start the Independent Institute
Law, Legislation and Liberty
gives the deeper story behind John Goodman’s observation that U.S. labor law (a many-layered web of labor legislation and regulation accumulated over decades), restricts worker options as it raises costs and complexity for employers.
Goodman discusses the common law foundations of labor relations, law that was never passed by a legislature but instead was made or “discovered” over time by judges as they adjudicated labor disputes brought before them.
For LD debaters, privacy protections are based on common law in the long-standing protections of private property (“a man’s home is his castle”), and the ban on “general warrants” that long allowed the British and Colonial governments to search homes and papers for anything that might be illegal. So the Fourth Amendment requires specific warrants.
For the Federal Court topic, the early role of the Supreme Court was to guide the federal government in its exercise of its limited powers and to adjudicate disputes between states. Federal powers didn’t including regulating labor relationships.
From 1897-1937, the “Lochner-era” Supreme Court invalidated much Progressive Era social legislation passed to regulate industry and uplift the poor. Supreme Court majorities based their decisions on protecting substantive due process and “the liberty of contract.” After Franklin Roosevelt’s appointments became the Supreme Court majority, the Court deferred to legislatures on cases involving economic liberties, but continued enforcing protections for civil liberties.
At the Calvin Coolidge Presidential Foundation debate camp, my presentations discussed new books on this ongoing debate between judicial activism (social democrats “legislating from the bench”), judicial restraint (conservatives opposed to judicial activism), and judicial engagement (the argument for principled judicial action, as during the Lochner era).
Past posts on this blog discuss these legal and economic arguments, and debates over whether a “liberty of contract” should again be protected by the Federal Courts.
• Liberty of Contract: Rediscovering a Lost Constitutional Right
• Overruled: The Long War for Control of the U.S. Supreme Court
So… many books and articles to read, plus hours of The Commanding Heights to watch.
I hope all this is interesting and helpful for debate students interested in understanding “the deep magic” of market economies and legal systems.