Thursday, July 05, 2012

The liberty to pee

The freedom to pee is not in your contract!

My advisor, Miles Kimball, requested a blog post on the recent debate over workplace freedom, so here it is.

The debate started with an excellent article by the folks at Crooked Timber, detailing how the libertarian philosophy, which chooses to focus only on government, overlooks the ways in which employers restrict the freedoms of their employees. This is one instance of what I've called "the liberty of local bullies", so I'm very sympathetic to the idea. Tyler Cowen then argued against the Crooked Timber post, basically making three points, which were: 1) employees agreed to workplace restrictions on freedom when they made their employment contracts, 2) most of the violations of workplace freedom cited by Crooked Timber are not objectionable, and 3) employee shirking and theft are just as significant as bosses' abuse of power.

I do not agree with Tyler.

I want to ask two questions about workplace restrictions. First, do they decrease liberty? And second, do they decrease utility?

Liberty first. There are many definitions of liberty. For example, consider the "liberty" to walk down the street without seeing an Armenian person. John Locke wouldn't consider that a natural right, nor would most modern Americans. But why not? Only because of people's feelings. Only because of their opinions. We've realized that for centuries. People feel that the liberty to walk down the street without seeing an Armenian is less important than an Armenian's liberty to walk down the street, and that is the only reason we prize one over the other. (Feel free to argue otherwise in the comments, but try to do so without resorting either to A) impenetrable jargon, or B) arguments from authority, and you'll see how incredibly hard it is.)

So here is my argument that workplace restrictions can violate liberty: People often feel that they violate liberty. When you really need to pee, and the boss forbids you from going to pee, chances are you will feel that your liberty has been violated, even if it's perfectly legal and in your contract. For quite a lot of people, the liberty to enter into long-term binding contracts is less important than the liberty to pee.

Of course, I have not proven my case yet, because to do so I would have to take a poll. But that's all I'd have to do. The relative value of different types of liberty is a matter of opinion (or, if you prefer, it's axiomatic). And many people feel that workplace restrictions - especially arbitrary ones, decided day to day by individual bosses with respect to individual employees - make them less free.

Note that in terms of liberty, Tyler's argument about employee shirking doesn't hold much water. The reason is simply power asymmetry; the employee who shirks is breaking the rules, whereas the boss who legally abuses an employee is not. The reality of theft does not equal the freedom to steal.

Now, on to the question of utility. Miles makes a number of good arguments on this front, mostly related to agency problems within the firm. But let me add a couple of my own.

First, there is the question of dynamic inconsistency. Why do we not allow indentured servitude? Because people make choices that they later regret. In your impetuous youth you may sell yourself into servitude, imagining that it's a good deal, and then wake up one day ten years later and say "Dang, I wish I hadn't done that." By banning indentured servitude, our government prevents people from making binding choices that they are highly likely to regret.

Second, there is the idea of adverse selection. When you consider going to work for an employer, you don't know precisely what your's going to get. Your boss might be nice or he might be mean, and you can't always tell in advance. Libertarians often argue that you always can tell in advance, because of reputation. But although reputation does exist, it doesn't always work, whatever libertarians claim. So in reality there is a certain chance that when you agree to go work for someone, you are purchasing a lemon. In a rational world, adverse selection causes markets to break down (which is bad from a utilitarian perspective). But in the real world, people are often just tricked. That is also bad from a utilitarian perspective.

So whether you care first and foremost about liberty, or whether you are a utilitarian, you can probably see why (depending on the situation) there could be a good reason for government to restrict the liberty of employers to do certain things to their employees, even if those things are permitted by contract. Of course, if you are a modern American libertarian, you may value a highly counterintuitive hierarchy of freedoms in which the liberty to pee is always subordinate to the liberty to sign away your right to pee. But your definition is no more or less arbitrary than anyone else's, and quite possibly has the side effect of convincing normal human beings that you are - in the parlance of our times - a bit of a schmuck. 

(Final note: Just for the record, Armenians are awesome.)

Update: Here is more from Alex Tabarrok. Here is more from John Holbo of Crooked Timber.

Update 2: Here is a really good post on the subject from Adam Ozimek, who points out the difference between dynamic and static conceptions of liberty.


  1. Anonymous1:01 PM

    Seems like a bit of strawman re: peeing. Are peeing restrictions in the workplace really a problem? I'm sure there are isolated instances, as there are for just about anything in the workplace. If so, then you have to talk about what actual restrictions you're referring to.

  2. @Anonymous: there is a reason for legally mandated bathroom breaks, and it's not that employers were being too generous with them before the laws were put in place.

    1. Lulz4l1f31:52 PM

      LOL. The UFW fought for years to get two legally mandated bathroom breaks, a means to wash your hands afterward, and drinking water which could be accessed on those breaks as well.

      They also fought to ban the "shortie" hoe due to its crippling effects on workers.

      At the time, the corporate farms called these measures "Communist".

      I kid you not. Look it up.

  3. Anonymous1:53 PM

    Could be a good reason ≠ cost-benefit analysis

  4. RobbL2:32 PM

    Noah, is it just me, or do the libertarians just not respond to the issue of whether or not the employer employee relation is based on coercion? Does it really matter how a slave owner treats his or her slaves? Is that the issue?

    Of course one can disagree. Someone can think that a person coming to their job interview is negotiating on an equal basis with the person across the table. I have my opinion and if libertarians don't share it I consider that they are letting political beliefs distort their reality field, but I realize that it is a matter of opinion.

    But surely they have to take up the question in order to have a useful discussion.

  5. "People feel that the liberty to walk down the street without seeing an Armenian is less important than an Armenian's liberty..."

    This is a learned response by we Europeans as a reaction to us slaughtering each other in large numbers for hundreds of years. Tolerance is embraced only because it is more efficient, and safer, than the alternative.

  6. Anonymous6:26 PM

    Why is that it is always economics professors; people with an unbelievable amount of "liberty" are always libertarians? They really have little concept of what everyday life is like for non-academics (I know, I'm married to an academic). Professor Cowan, try getting a real job.

  7. Dear Noah,

    In my post, I emphasized stupidity of owners at least as much as agency problems.


  8. Reputation is a pretty silly argument--the fact is that we enter contracts all the time without knowing what we will get, and the only way to avoid inefficient outcomes is through regulation. The example I usually use is the food industry--you can't literally negotiate a contract with McDonalds over the price per bacterium on your big mac, which is what the complete markets assumption says we should do. But those bacteria can make you sick, and therefore impose real costs. The reputation argument says that we get an "efficient" outcome once enough people get sick to give McDonalds a bad reputation, yet anyone who has ever worked in epidemiology knows this is absurd--even with fully equipped laboratories, highly educated scientists, and substantial datasets, it is usually very hard to figure out the source of an epidemic. And when it is just a few people involved, it is quite often impossible to tell what actually made them sick. Thus, we impose regulations on McDonalds designed to minimize the number of bacteria, and this is welfare-improving due to the incomplete markets problem.

    So yes, we often enter contracts without knowing what we are getting. Individually, this behavior cannot be improved upon, with or without reputation-building. Collectively, however, it is often welfare-improving to prohibit those contracts most likely to result in adverse outcomes.

  9. The government encourages (and uses cash bribes) to get young people to surrender their freedoms under the bill of rights and enlist in the armed forces. It replaces civilian justice with the Uniform Code of Military Justice, in which one is forced under pain of punishment such as loss of pay, rank and priviledges, to obey legal orders. However this is all done supposedly to defend the greater population's liberties. It is an interesting paradox that the Armed Forces, when compared with the general population, have done so much to engender racial and sexual equality. A contradiction worthy of further discussion?

  10. Forget about Libertarian blindness -- since when is the urge to pee considered to be something that can be delayed at will, like the longing for a piece of chocolate or the urge to Tweet?

    It's pretty blatant that none of the writers and commenters here are middle aged women, among whom 10 to 17% suffer urge or stress urinary incontinence. In men, the incidence is much less common, but even if it's only 3% that's still one man in thirty skipping to the loo.

    Worse than that, "prevention of urination or defecation" is a standard tactic of torture. To be sure, waiting an extra hour or four to pee is not up there with losing your fingernails, but to someone who is not physically capable of waiting, it's liable to lose them their job, or cost them big-time in Depends.

  11. this is kind of a pointless academic debate. the people who advocate that employees can write their own contract are people like Thiel who largely can write their own contract. Very few, and mostly highly paid, individuals have the leverage or market power to write their own contract. At most large and mid-size companies, HR and management can change the "contract" at any time for any reason.

    As for the examples in the book, there are hundreds on millions of people employed, i bet the probability of finding horror stories among them is 100%, and i am sure we all have them. That's why its called "work" and why they have to pay you for it. If you could do whatever you wanted it would be called "vacation." Somehow, through all these horror stories, we all seem to manage.

    Do we need a government program to fix this? Yes, more economic stimulus by the Fed: when demand for labor is high then wages and benefits, including benefits like "freedom" and "training" increase.

    1. Most of these people are victimized by the Galt Delusion, so they think that they got their job at Best Buy or wherever through a mutually agreed upon contract between parties with symmetrical endowments of power. It's too painful to believe otherwise. The Galt Delusion is ultimately a psychological survival mechanism.

  12. Another point is that plenty of libertarians will critique private companies for their privacy practices. (And do you think if TSA was privatized that they would stop kvetching because now it is part of the free market?!) The privacy contract is analogous to that of employment, and, rarely, do I hear libertarians base the criticism on the specifics in the terms of service anyway. They can stop using Google and browsers that track movements across the internet. Or those most concerned about privacy can completely stop using the Web. Libertarians must realize this, but they also REALLY like the services that these companies and networks provide. Instead, the strategy is to shame the private companies into adopting a privacy policy that will increase “liberty.”

    That is not a bad way to go about things by any means. But, if they can pressure a private company into better practices in regards to privacy, why don’t libertarians ever extend that agenda to other issues as well – for example, employment.

    Just because someone is free to be an ass doesn’t mean you shouldn’t try to stop it by pointing out that they are being an ass. Silence is not always neutral. If liberty is something that can be maximized (I don't think it can) then libertarians who don't question these dire contracts, even if entered into freely, are not really protecting liberty - no matter how sacrosanct they pretend to be.

  13. Or, more simply, just because people now enter into marriage freely, and can divorce / separate freely as well, doesn't mean we should stop loathing spouses that emotionally abuse their partners. It is not illegal; it is just disgusting.

  14. Anonymous1:13 AM

    "and that is the only reason we prize one over the other."

    This is the first post of yours I read and was so appalled, had to respond. You're either nuts or a fascist (or both). Having a street cleared of Armenians such that you can walk down it is not a question of being less valuable than
    allowing the Armenian there in the first place.

    1. You have no right to denote WHO is in the street regardless of how you feel.
    2. Everyone has an equal right to BE in the street

    That my friend is FREEDOM and most people feel that FREEDOM is valuable and that is what forms the basis of the right and wrong postulate. If you feel freedom is right, then you KNOW #1 is wrong and MUST support #2

    For example I see no value in your blog, I'd like it stopped, but my principals of freedom denote that you are free to say what you please and others are free to take it onboard or ignore it.

    Lastly, in many places people wish to walk down the street without seeing Americans. But you are still there, often categorising people and then trying to kill them to steal their resources.

  15. Anonymous11:04 AM

    "When you consider going to work for an employer, you don't know precisely what your's going to get."

    It works the other way around as well.

    "the employee who shirks is breaking the rules, whereas the boss who legally abuses an employee is not."

    Many rules are not possible to write into contract in the first place. You cannot then use the law as a prop because the law will not have anything to say about these rules; in any case, "legal abuse" is a funny term to use.

  16. Anonymous11:49 PM

    Tyler raises a lot a great questions and you ignore them all. Seriously, what do you want employers to do? Pay their employess less and give them more freedom in the workplace? Pay their employess the same as now and give them more freedom in the workplace? What if I really want to trade the right to make personal long distance phone calls at work for higher pay? I'm just throwing stuff out there but this is the directin you ought to be going. If you object to the status quo, fine, but at least try to sketch out what an improvement might look like after everyone has responded to incentives and all costs are accounted for.

    In any case, I agree that if libertarians are assumed to mean by the word liberty something about feelings, rather than what they actually mean, their claims are questionable. But libertarian positions make a lot more sense when you take the libertarin definition of liberty as given. So it comes down to what definition of liberty we use. If, as you claim, it's arbitrary or up to the feelings of a majority, that's a pretty flimsy basis for what you are defending which is the power of a regulatory agency to fine proprietors, shut down businesses, etc.

    On this issue of utility, I think you are maybe just expressing yourself poorly. If some GMU professor were to just list some types of potential government failure, surely you wouldn't let that pass as a utilitarian case for laissez faire. But it looks like all you've done is list some types of possible market failures as though it were a utilitarian case for regulation.

    Also, someone has to point this out: You resort a number of times to bandwagon fallacies and name calling, e.g. at the end "But your definition is no more or less arbitrary than anyone else's, and quite possibly has the side effect of convincing normal human beings that you are - in the parlance of our times - a bit of a schmuck." Probably you weren't convinced of your own position by fallacies so I can't imaging why you want to argue for your position by appealing to fallacies.

  17. Anonymous4:22 AM

    thanks for sharing.