The Ref

I’ve been following an argument going on among self-described libertarians in the blogosphere over labor unions and right-to-work laws with a certain amount of bemusement. From my point-of-view, at least, they’re tying themselves into knots on the subject. The original kick-off was this article:

A “union shop” agreement between an employer and a union commits the employer to ensuring that new hires join the union within a specified period. Right-to-work laws ban union-shop agreements.

Let’s put it another way: They violate freedom of contract.

If employers choose to conclude union-shop contracts with unions, what gives the Indiana legislature the right to interfere?

Employers own the wages they will pay and the sites where work will be performed under such contracts. So it’s their right to dispense the wages and make the sites available specifically to union members, just as it’s their right, more generally, to trade with anyone they choose.

When a legislature interferes with voluntary employment contracts, it infringes people’s freedom to bargain with their own labor and possessions. Treating this kind of interference as acceptable means licensing arbitrary interventions into the market by politicians, who are ill-equipped to second-guess the decisions made by the real people making work agreements with one another.

Here’s a response from

On more than one occasion, I’ve heard some libertarians object to right-to-work laws on the grounds that they undermine freedom of contract by barring employers from negotiating closed shop agreements with unions if they so choose. At Reason‘s Hit & Run blog, J.D. Tuccille repeats this argument. Tuccille says he opposes Michigan’s new right-to-work law because it “bans closed shops in which union membership is a condition of employment.”

Libertarians generally oppose banning contractual agreements into which parties voluntarily enter, so Tuccille’s objection seems reasonable — but only because it ignores the alternative.

another from

Right-to-work laws at the state level “balance” federal labor legislation only by countering state intrusion with state intrusion. The result is certain to be a continuing effort to “fix” problems caused by earlier laws. And politicians will be at the center of it all, building their authority while playing the sides against each other.

A free market in which businesses and labor negotiate conditions on their own can be created only by actually freeing the market. It will also reduce the power of government and the role of politicians. Yes, that is more difficult than enacting ever-more legal spackle.

and another from The Volokh Conspiracy:

One argument for right-to-work laws is that such rules provide a counter-balance against an inherent pro-labor bias in federal labor law. But if that’s really the problem, it would seem the better solution would be to fix federal labor law, not endorse yet more government interference with private economic arrangements. Are there better libertarian arguments for right-to-work laws? If so, I’d like to hear them, for at the moment (and despite my anti-union sentiments), I’m not convinced.

One thing we might want to do is define our terms. I would define libertarianism as the political policy that advocates minimizing coercion and maximizing individual freedom, liberty, and voluntary association. Minarchism is the sub-division of libertarianism that sees the legitimate role of the state as reducing aggression, theft, breach of contract, and fraud. Anarcho-capitalism is the belief that the state should be abolished entirely in favor of private defense and voluntary contracts.

When did all libertarians become minarchists and anarcho-capitalists? I see precious little about individual freedom in any of those posts, lots about contracts, and even more about constraining the state.

I have no particular animus against either labor unions or government. I see them as strictly instrumental. There will always be competing interests, selfish motivations, and rule-breaking. There needs to be a referee. Government is that referee.

Similarly, labor unions are useful to the degree that they lower the transaction costs for negotiating wages or advocate for the welfare of workers and their communities. They are unuseful to the extent that they act for the aggrandizement of union officials, promote inefficient work rules for companies, or are coercive.

What am I missing?

63 comments… add one
  • There needs to be a referee. Government is that referee.

    What am I missing?

    That government need not be the referee.

    I’m a libertarian with a strong minarchist streak. So I’ve read a fair bit of the minarchist/anarcho-capitalist literature. The idea is not that there is no referee, but that the government is not the only option.

    For example, somebody like David Friedman would argue that you could have many referees in an anarchist society. That is you could have arbitrators who offer up their services. Thus, the different arbitrators would compete against each other. If you had two people (or more) who want to enter into some sort of arrangement (e.g. a contract) then they’d select an arbitrator ahead of time in the event that they can’t resolve an issue themselves. Similarly with police departments and fire departments.

    The problem is that if there are significant external benefits to having 1 or only a small number of arbitrators (i.e. a single court system), police forces, etc. then the anarcho-capitalist/minarchist approach is sub-optimal.

    I know some might say, “No the real problem is with private police forces you’d have gun happy nuts shooting shit up!” To that I say, go read Radely Balko’s archives then come back here. Our current police force often use gun happy nuts on the force. That is why cops so frequently shoot dogs when they encounter them and they deploy SWAT teams for even the most banal reasons, and even the smallest of towns with no murders in decades have purchased bearcats.

  • PD Shaw

    Another branch (or fellow-traveler) of libertarianism are the federalists, who generally prefer more local government to national centralization. They tend to see local government as less coercive, and more flexible and adaptable. As I recall, Eugune Volokh took the position that Kelo was a libertarian victory since states were still free to enact protections against state government (federalism) and federal limitations on taking property to give/sell to private entities would encourage taking property for public ownership (consequentialism).

    In any event, people that muse on such issues should find the federal / state law division of responsibility here sub-optimal. The feds have decided the states have two choices, arguably on two extremes, with no middle ground options.

  • Another branch (or fellow-traveler) of libertarianism are the federalists, who generally prefer more local government to national centralization.

    I think that would be me. The term I generally use is “subsidiarity”.

    I think the lesson of history is that there is no practical alternative to government as the securer of individual rights but that government does not need to be monolithic. It’s not as though we, here in the United States, had not tried a system along the lines the minarchists advocate. That was the system that prevailed here for more than a century. It encountered serious problems. See, for example, the Pure Food and Drug Act of 1906 for the kind of problems that weren’t being addressed. Or slavery. Or civil rights for former slaves. The list is extensive.

    I think we’ve overdone the centralization.

    The polar opposite of “conservative” is not “liberal”. It is “radical”. I view myself as a conservative liberal. In that I think I’m in the tradition of the Founding Fathers.

    Returning to the actual subject matter of the post, for me the only question about right-to-work laws is do they increase individual liberty? Not do they make it easier to people to exact better terms. I don’t find the arguments about contracts persuasive since I see an element of coercion in a closed shop. I see the minarchists and anarcho-capitalists arguing over whether right-to-work laws strengthen the state rather than whether they are freedom-enhancing. I don’t see those two as intrinsically in conflict as they clearly do.

  • Jimbino

    As a libertarian, I start by asking, “Why are labor unions thought necessary?” and come to the conclusion that the arguments in favor rest on the concept of unfair bargaining power, but hide the real motivation: cutting out the competition.

    Freedom of Contract presupposes that the players have full information and comparative bargaining power- – a situation that does not obtain in health insurance, for sure, and which is bound to be exacerbated by availability of personal DNA analysis results only to prospective patients, not to the insurers. Obamacare will deal with that problem, in part, by making life miserable and expensive for everybody.

    Why is it that Walmart workers agitate for unionization but Walmart customers don’t? Walmart wields great power and has access to more information than does a worker or a customer, putting both its workers and its customers in an “unfair bargaining” position.

    But the customers are very happy with Walmart: it guarantees the lowest prices on products it carries, offers gold-plated warranties, and does not practice discrimination: it offers young, old, Black, White, rich, poor and every variety the same deal, something that can’t be said about our schools, public universities or public parks and forests. What reason would Walmart customers have to “unionize”?

    But many of its workers agitate for unionization. Why? Not because they are lacking fair and equal treatment, but because they want, like lawyers, doctors, pharmacists, plumbers, electricians, haircutters, etc., the opportunity to enlist the government in cutting out their competition, thereby raising the wage they can command.

    The obvious solutions: eliminate all state, and particularly federal, rules regarding labor relations, facilitate free-flow of information regarding labor and employment stats, kill off impediments to employment like unemployment compensation, workers’ compensation, compulsory family leave, compulsory drug-screening and affirmative action, to name but a few.

  • Or slavery. Or civil rights for former slaves.

    The reply to this could quite easily be that slavery was institutionalized at the government level.

    See, for example, the Pure Food and Drug Act of 1906 for the kind of problems that weren’t being addressed.

    You really think that such a law is necessary today? If so, how do you explain private companies that have higher quality/safety standards that government mandates?

    I don’t find the arguments about contracts persuasive since I see an element of coercion in a closed shop.

    I guess, I see it as a variation on “my house, my rules; don’t like it there’s the door.” By the way, how do you square this with your view on need for a referee and rules? And don’t all contracts contain at least some form of coercion (i.e. they put various requirements on each party that later on they might wish they did not have to meet)?

    I see the minarchists and anarcho-capitalists arguing over whether right-to-work laws strengthen the state rather than whether they are freedom-enhancing. I don’t see those two as intrinsically in conflict as they clearly do.

    The difference is that a firm and a union agreeing to a closed shop is not the same as a government mandating a closed shop everywhere…or not…everywhere, and if you don’t like the guys with guns and tasers will be along shortly to deprive you of virtually all your freedoms.

    Passing laws (i.e. using force) that prohibit voluntary activities to enhance individual liberty strikes me as an oxymoron.

  • sam

    “You really think that such a law is necessary today? If so, how do you explain private companies that have higher quality/safety standards that government mandates?”

    Apparently not all companies. Thousands Exposed to Tainted Steroid, C.D.C. Says:
    About 13,000 people may have been exposed to the tainted steroid that has been linked to a growing outbreak of fungal meningitis, a spokesman for the Centers for Disease Control and Prevention said on Monday. The outbreak has killed 8 people and sickened 97 others in 23 states. More cases are expected.

  • sam
  • @Sam
    The first I’d heard of that was at the coffee house the other day. Pretty scary stuff.

  • Drew

    As all should know by now, I describe my views as fundamentally libertarian.

    I understand that there are certain functions that only a central government can carry out (eg defense) but definately view local as better, but far from perfect.

    As for government as referee, as with all government interventions, it should be at bare minimum. Those who can will bribe the referee. On occasion gambling ref scandals appear in sports. In politics its an everyday event, winked and nodded at through sheer self interest, ignorance, partisanship or venal motives. Not a good motivator list.

    So to union bargaining. I, too, have no animus toward collective bargaining. I just say don’t bitch when you overplay your hand. In the private sector unions have committed suicide. In the political, er, public sector, absent requirements for profit and efficiency, suicide has been staved off through the power of government as opposed to the discipline of the market. Heh. But all things have limits. Taxes are crushing the taxpaying public, and debt financing is reaching the limit. What we are witnessing in the right to work efforts wrt the public sector is just the inevitable backlash.

    We will see endless whining, justifying arguments, posturing, appeals………but the nation is broke. That focuses the mind. Public sector unions? See-ya.

    Suicide Too.

  • sam,

    I think that proves my point. Sure thousands exposed and 8 die is not good, but from a relative risk stand point it is pretty good relative to where we were in 1905. And the NY Times article doesn’t say if the company was or was not following federal/state guide lines. It is entirely possible they were in compliance with every rule and regulation….sometimes bad stuff happens even when you are careful.

  • sam

    “It is entirely possible they were in compliance with every rule and regulation…”

    They weren’t. It turns out they were almost completely unregulated. Now let’s supposed that they were manufacturing flu vaccine…

  • sam

    And by the way, I think a strict libertarianism might founder on this reality pretty quickly: As drug making goes global, oversight found lacking:

    I don’t know about you, but the idea of being injected with drugs manufactured in, say, China, or India, and not subject to FDA regulation in this country, doesn’t seem like a good idea to me. And then there’s the issue of counterfeit drugs.

  • They weren’t. It turns out they were almost completely unregulated. Now let’s supposed that they were manufacturing flu vaccine…

    Where are you getting this? Your article does not indicate that. I find it hard to believe that today they were “totally unregulated” especially given that they had a license that they surrendered.

  • sam
  • PD Shaw

    sam, I think steve’s point was that the Food and Drug Act of 1906 may no longer necessary. Something not regulated under that law doesn’t prove or disprove that point. A lot of regulations have changed the way businesses operate and may no longer be necessary. They may have actually achieved one of their intended purposes.

    The company here is “regulated” in the way doctors are “regulated.” If they fall below a reasonable standard of care and people are injured or killed, they will get sued. Over a hundred years ago a meat packer depicted by Upton Sinclair might say his contaminated meat is within the standard of care of the community, but not anymore.

  • sam

    “The company here is “regulated” in the way doctors are “regulated.” If they fall below a reasonable standard of care and people are injured or killed, they will get sued”

    Assuming there are any assets that can be reached by a lawsuit — and given the number of dead and injured, I doubt that compensation will ever be attained. And I understand Steve to be arguing that the regulatory regime itself is not necessary. If he is not so arguing, then I apologize.

  • Drew

    I think the point that sam misses is the one all of his philosophical pursuasion miss: perfection is a myth, and just a straw man.

    Its easy to say “7 people died.” Its hard to evaluate how many people would die even under a more strict regulatory regimen. Its also hard to evaluate how many die because the hated “Big Pharma” have created orphan drugs because of regulatory (and tort) costs.

    Smothering a situation in regulatory burden is no guarantee of the implicit assumption of no risk of drugs in a highly regulated environment. Further, do you think health care professionals will be prescribing the products of the offending company now?

    And for perspective………..hey sam, how about spending your valuable time focusing on the thousands of needless deaths each year from repeat drunk driving offenders? Something tells me your real objective is just to stick it to business.

  • sam

    You’re full of shit, Drew.

  • sam

    Let me amplify that. You are really full of shit. How do you infer from what I’ve written that I’m in favor of “smothering” regulations. That I want to “stick to business”?

    Now sticking it you, well that’s another thing.

  • Drew

    “You’re full of shit, Drew.”

    And I know you mean that in only the best possible way. So enlighten us, just how do you reconcile your complaints about regulation and what I wrote? Do you have a definitive and constructive proposal?

  • My blog friend Jordana has a new baby that developed a 103.1 temp with croup.

    She has just been released from the hospital after treatment with oxygen and a steroid. Penelope is the baby’s name.

  • sam,

    PD basically has it. The company, from my reading is regulated but as a pharmacy and mostly under state regulations which may not be as rigorous as under federal/FDA regulations/supervision.

    In any event, I’m not sure that more regulation could have prevented this. Even drugs regulated by the FDA sometimes cause deaths or are deemed to be less safe than they were initially thought to be.

    Same thing goes with food. I’ve gotten rotten milk from stores in the past, just as an example.

  • PD Shaw

    sam, I may be overreading Verdon’s question to Dave, but my own question about private sector unions is whether they have served their purpose. Since their heyday, unions have sucesfully lobbied for occupational safety protections, minimum/overtime wage rights, and universal healthcare, all of which benefit not simply union members, but all workers. They’ve been pretty selfless in many ways that help reduce their relevance. I think many of our regulations are similar.

    I’ve participated in a food recall. There was no government involvement, the producer caught the problem and took steps quickly to intercept the food from the stream of commerce. Its not like there is a food inspector tasting each piece of meat or produce at all points in the chain. Its people who are proud of their work, don’t want to lose customers/clients, appreciate that their jobs on the lines and certainly don’t want anybody hurt or even dead.

    I don’t want to sound like I’m beating up on doctors, but they appear to be implicated in your articles, and they can be as empty of pockets as a small business. They don’t always have malpractice insurance or own their fancy house. They make mistakes, usually complicated by the fact that they are treating people that aren’t 100% healthy.

  • We have come a long way since Upton Sinclair.

  • steve

    Nope. Compounders work under very few regulations. States are not set up to monitor them. They fall into a special niche since they are not manufacturing drugs. If they had to work under the same rules as Big Pharma, those people would be alive. I put a lot of stuff in the epidural space, and have more than a passing interest in this.

    To the general topic, my longest internet buddy is an anarchy-capitalist. It is a philosophy that has some appeal, but I cannot think of an historical example where it has really existed in the past. Indeed, I cannot think of any place with libertarians that does not have a strong central govt. Property rights have never existed absent a strong govt.

    While I like the idea of very few regulations on local businesses dealing with local people, I dont see how it can work well with large, international businesses. First, they really can kill a lot of people quickly, or defraud masses quickly. Since the large corporations have complex webs of ownership, I am not sure it is really possible to hold the correct people responsible. Sue them? You dont trust govt to be competent enough to regulate something, but you trust that same govt to reach just verdicts in a suit? Who of us really thinks the judicial system is impartial? How often does that team of million dollar lawyers really lose when sued by some peasant who dies from using a corporate product? Besides, with LLCs, what is the possibility that we get real remuneration from the guilty party? Make lots of money, then let the corporation take the hit while retaining personal assets. Never have understood how libertarians can support the LLC concept.


  • FYI, the company I work for uses standards and practices that are well above the minimum requirements for an electrical distribution system. I wouldn’t be surprised if the same were true for the other IOUs in the state as well. Worker safety is a huge issue here and to be quite honest sometime annoys me.

    We have come a long way since Upton Sinclair.

    Essentially, yes. Alot of the laws we have on the books that dealt with issues from that era are no longer an issue and removal of those laws is highly unlikely to result in us going back to having those kinds of issues.

  • steve

    PD- A lot of pain clinics, IMO, are scams. A fair number of doctors participate in them. There is little evidence for a lot of what they do. in this recent outbreak, some people turned to compounders as a way to save/make money. However, a lot of us have been using them because of national drug shortages. The bad part is that a lot of people are getting epidural steroid injections who should not be getting them. All risk with no chance of reward.

    A number of docs, it was common in Florida, carry no malpractice insurance. They keep everything in joint with a spouse. They keep all their money tied up in a big house or whatever their state says is safe from being taken in a suit. Makes quite a quandary for libertarians. Cant force people to carry insurance. Cant effectively sue them.


  • Right to work laws would be counter to libertarian principles IF NOT FOR THE FACT that government has already acted to REQUIRE business owners to negotiate and contract with unions in the event that their workers vote to unionize AND forbid firing employees for joining unions in the first place. Repeal those two statutory protections of unions and unionists and right to work laws would be antithetical to liberty — but as long as those statutory protections remain, the right to work law serves to prohibit coercion by statutorily protected entities.

  • PD Shaw

    Steve V, I think there are a lot of standards and practices that are industry-produced that either exceed government regulation or act as the equivalent of government regulation. As I recall, McDonald’s coffee cup burn case was based upon failing to adhere to an industry standard on coffee temperature.

    steve, I don’t know why professionals or businesses involved in matters of public safety and health cannot be required to have insurance. In my state, they dispensed with the requirement of a tree-cutting license, when they decided all of its objectives could be accomplished by a law that required commercial tree-cutters to have $x in liability coverage. Yet, doctors and lawyers are not required to have malpractice insurance. The tree-cutters either lack the lobbiests or the lawyers; I assume the former.

  • I tell you, reality bites.

  • It’s hard, and some people deal with it.

  • Good Lord, I’m a deontologist? I didn’t even pay that much attention to Kant.

  • Damn, you are a wizard.

  • Yippee-ki-yi-ay!

  • Get along, little doggies.

  • This is, I think, what is called “stream of consciousness writing” in the vein of Ulysses, by the Irishman, um, James Joyce.

    Got it! Ain’t Google grand?

  • The Irish stick together.

  • But I’m pretty Norman. I love Norman churches. I feel most comfortable in them.

  • St. Patrick’s in Dublin. Or Stirling in Scotland.

  • And that’s the way it is.

    ( Walter Cronkite)

  • And that’s the way it is.

    (Edward. R. Murrow)

  • Where did it come from, mon oncle?

  • TastyBits

    Finnegan’s Wake

  • Portrait of the Artist as a Young Man

  • Grrrrrrr.

  • Life’s fuuny.

  • Don’t ya think?

  • I’ve started wearing my mother’s perfume — Tabu. $2.50 at Dollar General.

    It was formulated for whores.

  • God’s truth. Here it is.

  • TastyBits

    Dawlin, we’re all whores – one way or another.

  • You can get a solid, which my mother wore, but you’ll have to look it up yourself.

  • My gosh, I like you TB. All that south Louisiana charm. Couldn’t kill it.

  • Those men are terrible. And their women are fierce.

  • You want somebody to eat your lunch? Let me make a play for TB.

  • I’m a kitten.

  • They’re feeling protective.

  • TastyBits

    RE: Continuing Need for Regulations

    Smallpox, mumps, measles, etc. were once problems, but those problems have mostly gone away (in the US) because of universal vaccinations.

    If I understand the theory correctly, vaccinations requirements are no longer needed. Parents will vaccinate their children to avoid the effects of those diseases.

    Theory is great until it hits reality.

  • If I understand the theory correctly, vaccinations requirements are no longer needed. Parents will vaccinate their children to avoid the effects of those diseases.

    Theory is great until it hits reality.

    The anti-vax movement in the UK is much stronger, and there you see a resurgence of some of those diseases. Kids are a great vector, especially the young ones who,

    1. Don’t wash their hands.
    2. Are snot machines.
    3. Love to put things in their mouths.
    4. Are brought together via compulsory education.

    I don’t see a problem here when not vaccinating….no not a problem at all.

  • Herd immunity will vanish without laws enforcing vaccination. A neat example of herd immunity being a public good.

  • Pertussis, or “whooping cough,” is on the rise.

    My mother went through a lot of stuff with seven kids, but I think that scared her most. My third brother had it as a baby.

  • Don’t forget day care centers, SteveV.

  • TastyBits

    Mothers who would not do anything to harm their children no longer know the results of these diseases, and therefore, they assume that their children will never be subjected to them.

    Today’s world is vastly different from Upton Sinclair’s, and therefore, it is assumed the results of non-regulation will never return. The regulations are vaccinations against food poisoning, but it is possible to go too far. In some areas we have gone too far, and in others we have not gone far enough.

    With vaccinations, a little is good, but a lot is deadly. So too with regulations.

Leave a Comment