The Classical Liberal Version of Labor Law: Beware of Coercion Dressed up as Liberty

Richard A. Epstein


In this Article, I contest on both theoretical and empirical grounds the progressive agenda, as represented by Hanoch Dagan, that seeks to advance the unionization movement in the name of individual autonomy and property. Theoretically, the Article shows that the common-law account of autonomy, which stresses freedom of action from external constraints involving the use or threat of force, provides the best analytical framework, one that undermines the modern progressive case for collective bargaining by workers. The negative account of autonomy applies to all persons; its correlative duties are simple. It applies regardless of the overall level or distribution of wealth. It is scalable from small to large societies. And it forces employers to respect the full range of material and psychological needs in order to recruit and retain their workers. In contrast, the modern progressive alternative imposes no clear correlative duties on employers. It has no obvious way to constrain the dominance of union forces. And its commands are sufficiently complex that they are often not understood by the workers whom they are intended to protect. Empirically, this Article shows that the institutional rigidity of union structures in dynamic markets fails; and it rejects the claim that individual workers are wedded to their current employer, given competitive forces that allow for rapid entry and exit. Given the long-term systematic advantages of the classical liberal model, it is no surprise that unions are generally in decline in major industrial societies.

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