Workplace relationships are a big part of most people’s lives. Many of us spend more time with our coworkers than our families, and our relationships with our coworkers have a significant impact on our well being. For this reason, many liberals argue that permanent employment contracts (e.g. ‘slave contracts’) are impermissible because they don’t leave employees with good exit options. The thought is that employees should always have the freedom to exit a contract at will.

It’s then striking that many liberals change their tune when we consider the employer’s freedom to end an employment relationship. Unlike the rights of employees, some allege that employers should be forbidden from ‘firing at will,’ and that unions and policymakers ought to protect employees’ ‘right to stable employment.’ Most recently, here’s Chris Bertram on this point:

The issue seems to me to be emblematic of what’s wrong with the BHL people. They can’t and don’t take seriously the realities of private power, of domination, and of the need for someone (the state or the unions or both) to step in and protect people who have nothing against those who believe they are entitled to do what they want on their private domain. In an unequal world, where access to employment is in the hands of the few, then it is certain that at least some of the few will take advantage of their position to abuse and humiliate their subordinates in various ways, including sexually.

Bertram anticipates my reply, which is that a UBI will at least give people the option to leave a job without falling into desperate poverty. His response?

Whatever…Even in a world with a social minimum there will be people who get themselves into situations of neediness or dependence through bad choices or bad luck….Providing people with protection against getting fired for arbitrary reasons isn’t an unwarranted interference with freedom of contract, it is essential to protecting people from humiliating and degrading bargains, or agreeing to lengthy stretches of unpaid overtime, or any of the other things that unequal power can force upon them.

I agree that bosses should not demand that employees work for lengthy unpaid overtime when that was not specified as part of the job at the outset. But say it was. Imagine a recent graduate who wins a prestigious hourly internship at a literary magazine, but the job requires that she also manages the magazines social media accounts 24/7 and be ‘on call’ for the staff writers. Is unpaid overtime problematic in this case?

Similarly, it’s obviously wrong in most cases to tell an employee that she must preform sexual favors in order to keep her job, but maybe not for an employee whose job already includes other kinds of sex work. The point is that where contracts are incomplete, there is usually an implicit or explicit understanding about the nature of a job, which either does or does not include sex or overtime.

As I argued before, violating these implicit understandings is wrong because it is deceptive to lead someone to believe that a job requires one thing and then to demand another. This deception can be particularly harmful when an employee wouldn’t have taken the job if she knew what she’d be asked to do. This is why the nature of the work should be specified in contracts as much as possible. Absent any contracts or agreements, if an employee is surprised to find that her job requires things she did not anticipate, then of course she should be free to leave the job.

So far, we all agree then that sexual harassment is wrong. Does the wrongness of this behavior mean that we should abandon at-will employment? Here is where we part ways. Bertram says that this issue is ‘emblematic’ of what’s wrong with BHL. I think it’s emblematic of what’s wrong with non-BHL liberals. Why is their immediate impulse to limit an employer’s options? Why is it so important that employees have the freedom to exit an employment relationship, but liberals like Bertram and Corey Robin don’t seem to worry at all about the employer’s freedom? Why not spend some time thinking of solutions that are compatible with liberty, instead of assuming that employers’ rights don’t matter?

Consider an analogy to marriage. In Ibsen’s A Doll’s House, Nora is a wife who works at home raising a family. She is financially dependent on her husband Torvald. At the end of the play, Nora leaves Torvald and her children to live independently, though this choice means that she will be poor and stigmatized. Surely Nora shouldn’t have been required to stay married to Torvald, even if it was morally impermissible for her to leave her family. Similarly, if Torvald wanted to leave Nora he ought to have been legally permitted to, even if his choice would have been wrong, even if he left Nora poor and stigmatized.

The freedom to choose a spouse is so important that both spouses ought to be legally permitted to leave marriages at will. This freedom merits legal protection even when the initial terms of a marriage agreement were vague, even when the relationship is characterized by social and economic inequalities, and even when it’s wrong to leave.

Employment relationships are relevantly similar. Like marriage, our identities are shaped by our relationships at work, and work matters a lot for our happiness. Work can be a central life project. For these reasons, both employers’ and employees’ rights are important. Wherever possible, we should look for ways to mitigate the wrong of sexual harassment or burdensome labor practices without limiting economic liberty.

For example, a UBI would discourage employers from behaving badly, and give employees better options when their employers act wrongly. Second, states should take sexual violence and assault seriously in all cases, and everyone should feel confident that the police and courts will fully investigate and prosecute all cases of rape or attempted rape. Third, I think that justice requires open borders, and that a better immigration policy would protect the farmworkers that Bertram mentions in his post more than workplace regulations or unions.

Fourth, government can play a role as a ‘knower organization’ in promoting informed employee and employer choice by maintaining public records of complaints. We already have private  knower organizations  for employees and employers, why not extend these ratings to other employment contracts with the same kind of consumer database that the CPSC is developing for products? Employers would have incentives to treat their employees well to gain the best employees and to maintain a good pubic image, and employees and managers would have access to information about their workplace. Finally, obviously deceptive hiring practices could be addressed in the courts as a kind of fraud or breach of contract.

None of these policy changes involve trampling on people’s freedom. All of them require significant revision of the status quo, and stand to benefit employees. Why is the initial impulse for Bertram and Robin to limit liberty of contract, rather than to think about solutions that are compatible with employers rights? Surely something important is lost with limits on freedom of contract and freedom of association, so if limits are not essential to protect people from indecent proposals, then why not advocate first for those solutions?

PS: Matt Zwolinski has a paper about discrimination, which also raises the question of why commercial relationships should be treated differently from private relationships.

Update: Just to clarify the takeaway- I agree that sexual harassment is wrong (I hope we all do) and also that it there can be a role for government (e.g. legal penalties for fraud and sexual violence). The point is just that limits on employer’s rights to fire people shouldn’t be our first instinct, because something is lost when the government restricts economic liberty.

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  • TracyW

    Another thought – people can, and often do, break the law and can do so for long periods of time, and quite often both parties have broken the law so are reluctant to get the law involved. 
    Isn’t a good protection against rights violation the knowledge that one has other options – that you have a good BATNA? 
    Or in other words, a lot more employment opportunities mean that it’s easier to say goodbye to a job. Which implies, in turn, making it less costly for employers to take on employees. 

    I’m contemplating going part-share in hiring a nanny in the near future, I definitely would be discouraged by the knowledge that it would be difficult to fire said nanny if things didn’t work out. 

    (Note, I think employers want to maintain a good public image, some typos are good to be avoided). 

  • http://www.facebook.com/profile.php?id=193112608 Chris Bertram

    Thanks for your reply. You won’t be surprised to learn that I’m unconvinced. I’ll write a response on Crooked Timber in a few days.

    • Jessica Flanigan

      I actually think we can agree on a fair amount. A lot of the disagreement hangs on 1) whether it’s coercive to end an employment relationship and 2) whether an employer’s economic liberty is morally important. I think ‘no’ and ‘yes’, I imagine you don’t.

      Still, as I said,  I genuinely do think that things like sexual harassment are wrong– I’m just not so sure it should be illegal, or that the right to fire should be subjected to strong legal limits more generally. I think this is especially true if a UBI is possible, but also even in non-ideal conditions. I also think there are ways to address these problems without limiting employer’s choices, and insofar as that’s true, then we should choose policies that minimize limits on important economic freedoms.

      Another thing about this conversation is striking is that it seems to me that the problems of firing someone at will are in part problems with unemployment and poverty, but people who never had jobs in the first place, like recent high school graduates, will face the same kinds of vulnerability and poor options as people who are fired. Setting aside the concerns I raised about fraudulent hiring, why do people who have jobs have a special claim to retain their employment in contrast to the unemployed? Why do employers have special duties to continue employing people, duties which do not fall on the rest of the political community? Do you think they do?

      • Throughawayaccount

         It is strange to think that an unskilled person who got a job by chance, though there were other more deserving candidates, deserves more help than the other, equally skilled people who also didn’t get the job.

  • Kevin Vallier

    “Why is the initial impulse for Bertram and Robin to limit liberty of contract, rather than to think about solutions that are compatible with employers rights?”

    I think this is a really important question, not because we should question Bertram or Robin’s motives, but because the question illuminates the ways in which social and political concepts often hang together for social democratic and egalitarian liberals. Something in the social democratic politic seems to turn one’s attention towards the use of state power to rectify seemingly inevitable conflicts between different social groups. 

    I don’t know what explains this, but here’s some speculation: perhaps an implicit vulgar Marxism is at work, which sees conflicts between labor and capital as inevitable facts of life that cannot be changed without the use of force. If capitalists are free to be capitalists, of course they will rip off and dominate workers. But if you abandon traditional Marxist conceptions of economic value, exploitation and class, your attention will more easily turn towards non-coercive or less-coercive institutional solutions. 

    In my view, the true liberal is obsessed with finding non-coercive solutions to problems because she wants to believe that the world is flush with opportunities for positive-sum games based on voluntary choice and contract. Societies are cooperative orders for mutual gain, or at least they should be. So even if some liberals think that limiting liberty of contract is required by justice, they should lament this and first canvass, with regret, the failure of less coercive policy solutions.

    Any other ideas?

  • http://www.facebook.com/profile.php?id=1702318862 Jason Brennan

    Bertram says,
    “The issue seems to me to be emblematic of what’s wrong with the BHL people. They can’t and don’t take seriously the realities of private power, of domination, and of the need for someone (the state or the unions or both) to step in and protect people who have nothing against those who believe they are entitled to do what they want on their private domain. In an unequal world, where access to employment is in the hands of the few, then it is certain that at least some of the few will take advantage of their position to abuse and humiliate their subordinates in various ways, including sexually. Now the BHLs may cry “wait, wait, we’ve got that covered … social minimum, basic income, …” Whatever. They haven’t. Even in a world with a social minimum there will be people who get themselves into situations of neediness or dependence through bad choices or bad luck. People who owe more than they can pay, who need that job, people who aren’t in a position to say “no”. Providing people with protection against getting fired for arbitrary reasons isn’t an unwarranted interference with freedom of contract, it is essential to protecting people from humiliating and degrading bargains, or agreeing to lengthy stretches of unpaid overtime, or any of the other things that unequal power can force upon them.”
    Yes, in the real world, bad things will happen in markets. Similarly, in the real world, whatever institutional response Bertram proposes will be also abused in ways that hurt the weak  and downtrodden and which benefit the rich and powerful. So, if we actually care about the weak and downtrodden, we will try to balance market failures and government failures, market success and government successes, rather than just assuming that our favored government interventions work exactly as intended.

  • djw

    Two questions:

    1. Both here and in Corey Robin’s comment section, you talk about the problematic nature of limits on employer freedoms via “unions or public policy”. But shouldn’t these be treated as distinct situations by a libertarian? If a group of employees decides to negotiate a contract collectively and the employer goes along with that, and the employees negotiate a set of fairly restrictive rules for dismissal and the employer voluntarily signs the contract, I can’t see the problem for libertarians. Yet you treat rules via contract and rules via government regulation as two examples of the same category. I don’t understand why.

    2. Assume that UBI, or anything approximating it, is off the table for the short and medium term for political reasons, regardless of its merits. Moving down a notch to this level of non-ideal theory, we now have to do a balancing act: the risk of desperate poverty vs. a bit of freedom for employers. Would this change how you think about this question at all?

    • Jessica Flanigan

       These are good questions. Here are my initial replies:

      1- In theory, I’m fine with unions. I think freedom of association and economic liberty protects a right to unionize and a right to not join a union. My problem is more with the alliance between unions and public policy. You’re right though, that there’s no problem with unions except when they get the government involved. I should be more clear about that.

      2- Yes, non-ideal theory means we might need to make some concessions. But then I proposed some other solutions that would mitigate some of these problems without violating employer’s economic liberty and freedom of association. Maybe some limits on employer freedom will be the best we can do in the absence of a UBI, but something important would be lost. Bertram and Robin make it seem like there’s no moral price to pay when we limit employer freedom. In this post I tried to show that there is.

    • TracyW

      But hold on, if you provide a disincentive to employers to hire (by making it more costly to fire by risking going to court), then at the margin employers will not hire some people they would otherwise have, so there will be people in desperate poverty because they didn’ t get offered a job in the first place. 
      Your balancing act is really “to what extent do we protect people with jobs versus people without jobs”. 

  • http://profiles.google.com/substancemcgravitas Substance McGravitas

    Why is it so important that employees have the freedom to exit an employment relationship, but liberals like Bertram and Corey Robin don’t seem to worry at all about the employer’s freedom?

    People probably don’t worry much about the freedom of employers because employers have traditionally had a hell of a lot of power and still do today.  Assuming one employer in a 100-person company it’s pretty obvious that limiting the one guy’s rights results in greater liberty for more people.

    • Consumatopia

      I would note that the employer claiming a right to fire at will isn’t just claiming a right to exit, they’re claiming a right to force any of the other 99 to exit.  This is like arguing that because Nora has the right to leave, Torvald should have the right to kick her out.  (Also: Torvald has 98 other wives.)

      • Jessica Flanigan

        Do you think that Torvald shouldn’t have a legal right to divorce Nora because Nora is financially dependent on her? It seems like he must. Maybe he will be required to still pay for some of her expenses for a while, just as employers may be required to pay unemployment for a time when they fire people, but to say that he doesn’t have a right to end the marriage seems like the wrong extension.

        • djw

          I thought we were talking about firing people for whatever the employer defines as “cause”, not laying people off. Because as I understand it, it is only in the latter case that unemployment benefits can be claimed. 

          • Jessica Flanigan

             Yeah, that seems right actually. But notice that all that is a different question, one of whether people who are economically or socially advantaged have special duties to former dependents (I’m not so sure!) But the point of the post was that it’s permissible to dissolve an employment relationship for any reason, I didn’t mean to bring up whether any other special duties follow if one does, which is also an interesting question..

          • Consumatopia

            Thinking of it as just dissolving a binary relationship is misleading–there’s a difference between Torvald deciding he wants to leave, and Torvald deciding to kick Nora out and keep both the house and the kids.  If a manager or an owner simply wants to exit the relationship, that’s easy–just resign or sell/give the company to someone else.  Having that right to exit is different from having the right to make any of your employees exit.  If we absolutely must make this marriage comparison, restricting at-will employment contracts is like restricting pre-nuptial agreements.  Judges may refuse to enforce unconscionable pre-nups, and I would consider any employment contract that permits sexual harassment to be unconscionable.

          • http://profiles.google.com/substancemcgravitas Substance McGravitas

            But the point of the post was that it’s permissible to dissolve an employment relationship for any reason

            I don’t understand what you mean by “permissible”.  The fact that it isn’t practically permissible in most places that are nice to live in is a testament to the fact that people don’t think it’s permissible.  A UBI is nice, but as the cliché says there’s more to life than bread; your work life may be your social life, the thing that you most enjoy doing, et cetera, and that is the liberty of the employee.  It’s a serious business to fire people, as it should be (and in most cases it’s still not impossible).  The gain in an employer’s liberty to do as he wishes does not represent an increase in liberty but a diminishment of it.  The “permissibility” here doesn’t operate in the real world among real people, who don’t think “WHOA LIBERTY IS AWESOME!” if they get fired for wearing purple too often.

          • Jessica Flanigan

            Good point. To clarify- I mean that it should be ::legally:: permissible,  it can still be wrong to do so, but such wrongdoing is covered as a kind of right to do wrong. 

          • Jessica Flanigan

             And also, in some cases it might not even be legally permissible, e.g. fraud cases.

    • TracyW

      Apart from the ones who don’t get hired in the first place.  We should be concerned with everyone, not just those who currently have jobs. 

  • http://www.facebook.com/adellutri Aaron Dellutri

    Consider an analogy to marriage. In Ibsen’s A Doll’s House,
    Nora is a wife who works at home raising a family. She is financially
    dependent on her husband Torvald. At the end of the play, Nora leaves
    Torvald and her children to live independently, though this choice means
    that she will be poor and stigmatized.

    Why don’t misused employees just act like this lady in an Ibsen play? For that matter, why don’t oppressed people just act like Frodo and Samwise did in “The Lord of the Rings”?

    Why doesn’t the real world operate like a play or a novel? Why does real life have to be so much uglier than fiction? This may be the first question for libertarians to ponder, if they are to someday grapple with the lived realities of Earth.

    • http://twitter.com/manraygun Ray Mangum

      Um, I don’t think she was saying life should be like A Doll’s House. You do realize it’s a tragedy, right? No libertarians I’ve know of ever ask those childish questions you impute to them. If you want people to grapple with lived realities, you should probably stop building straw men.

  • Adam Ricketson

    “Why is it so important that employees have the freedom to exit an
    employment relationship, but liberals like Bertram and Corey Robin don’t
    seem to worry at all about the employer’s freedom? ”

    These freedoms are not symmetrical. The employee is committing his time — he presumably has no money with which to “buy out” of the contract. The employer is committing money, and he can get out of his contract by either paying the employee or declaring (corporate) bankruptcy.

    On a related note, I’m more concerned with invalidating non-compete clauses in employment contracts (perhaps also non-disclosure clauses). These clauses prevent the employee from making a living independent of the employer, and have motivated at least one campaign for laws protecting against arbitrary dismissal.

  • martinbrock

    Overwhelmingly, employers fire employees because free consumers do not choose the employees’ product. Interfering with the employer’s firing discretion in this scenario limits the freedom of his consumers, who must consume the redundant employees’ product regardless of their preference, assuming that the business continues to exist. Even if the unfired employees produce nothing substantial, consumers must pay more for the products they consume.

    Forbidding employers to terminate employees for other reasons, however arbitrary, has a marginal effect on employee welfare at best.

    For the able bodied, I don’t support a UBI. I rather support sufficient credit to attempt to satisfy free consumers with a decent living standard, and I support liberal bankruptcy when these attempts fail. One may fail in many attempts without losing the line of credit, but one may not simply entertain oneself while pretending an attempt. Precisely how a system of credit should rule out the latter is debatable.

    Sexual harrassment is a separate issue. If your boss wants to have sex with you and you don’t like the idea, a law forbidding the predicament doesn’t help you much. The emotions are not outlawed, and subtle discrimination can’t be outlawed effectively either. Your best bet in this scenario is to find other employment. If your employer wants you to travel more than you like or to work more overtime than you like or to fetch her coffee from Starbucks or to clean the toilets or to risk black lung in a coal mine, you have the same option.

    It’s not that a state should not correct these problems. A state cannot correct them, so expecting a state to correct them only blinds employees to other, more realistic options.

    I don’t much agree that the nature of work should be spelled out in contracts. Employer-employee relationships should be at will, regardless of any contract. The idea that employers have all the power is usually a myth, and when it’s not, something else needs to change. At fifty, I’ve left several jobs, sometimes deliberately, sometimes not. In every case, I thought myself “stuck” in the job before leaving it. In every case, I was better off in practically every respect only a few months later. In every case, my sense of being “stuck” was a tragic figment of my imagination. I doubt that the world has changed much in this regard.

    I don’t know why we need state sponsored complaint registries. We have the web. I can buy stuff from people I’ve never met and will never meet on eBay, with little fear that they’ll take my money and run. This service exists without a state agency. We’ve never needed state sponsored registries of anything less.

  • good_in_theory

    “Why is their immediate impulse to limit an employer’s options? Why is it so important that employees have the freedom to exit an employment relationship, but liberals like Bertram and Corey Robin don’t seem to worry at all about the employer’s freedom? Why not spend some time thinking of solutions that are compatible with liberty, instead of assuming that employers’ rights don’t matter?”

    Because ownership confers power, and the price of power is responsibility – eg. limitations on employer rights.

    To the Ibsen example:

    This is a disanalogy.  As stated above, the relevant factor is disproportionate power, generally brought about by ownership rights.  Nora is a in a relation of dependency to Torvald.  So the severing of the marriage by either party entails alimony for Nora.  Freedom to “leave marriages at will” in 19th century Denmark is clearly not distributed equitably.

    Kevin is likely roughly correct when he writes, “perhaps an implicit vulgar Marxism is at work, which sees conflicts between labor and capital as inevitable facts of life that cannot be changed without the use of force. If capitalists are free to be capitalists, of course they will rip off and dominate workers”

    The essentially Marxist (but not especially vulgar) concern is that control (of the means of production) conveys power, and power needs to be limited/equalized in order to provide for human freedom.  Ownership of wealth (capital) breeds material dependency, so the wealthy (capitalists) are empowered by the fact that others are relatively materially dependent upon them, just as husbands (or, further, the patriarchy) were and are (was and is) empowered by the fact that wives were and are materially dependent upon them (it).

    • TracyW

      My brother is a chef. He can walk into a job at any time, in a few days, assuming he’s being picky about where he wants to work.  I don’t see that his employers have any power over him. 

      I think it’s far more sensible to remove power over other people by increasing people’s options.  As an employee, I’d rather have an unemployment rate of 2% than all the legal protections the law can offer. 

      • martinbrock

        People who learn marketable skills and apply them conscientiously are very powerful. If they are less powerful than people holding title to land, that’s a problem in my way of thinking, but I’m not sure they are at this point, not as a general proposition anyway.

      • good_in_theory

        Yes, employers need employees for their business just as husbands need wives for their marriage.

        And yet, the husband’s legal control over economic resources and relative privilege in accessing the labor market created this patriarchy thing that we had for a while (and still have, at times) where men tended to control the terms of marriage (along with the terms of most other social, political, and economic institutions), pace the Lysistrata.

        Does owners’ legal control over resources and relative privilege in accessing credit markets, political markets, and economic markets of all kinds create something similar (Marx might say, Capitalism), wherein capital-owners tend to have hierarchical, command-based relationships over others (one might call these “managerial” relationships)?  I reckon it might.  

        If one were to hold the power to fire (and to quit) in suspense for a given employment relation (along with the rate of pay), and have employer and employee negotiate the way in which work occurred democratically, on equal footing, would one expect the renegotiated relationships to generally favor the employer or the employee relative to the ex ante situation?

        I wager there are very few employees who would come out with *worse* working conditions if terms were renegotiated with exit for either party off the table.

        • TracyW

          And yet, the husband’s legal control over economic resources and relative privilege in accessing the labor market created this patriarchy thing that we had for a while (and still have, at times) where men tended to control the terms of marriage

          And here I thought it was the fact that men had stronger upper body strength, giving them an advantage in being fighters, and thus an advantage in being leaders, and thus an advantage in enforcing the law (as you need to control fighters to do so, both to use the fighters to limit what others can do, and to stop the fighters from looting and destroying everything), and thus therefore a need for the leaders of men to be brought into writing the law (because if the leaders of the fighters don’t want to enforce the law, it’s far more  difficult to get it enforced). 

          Does owners’ legal control over resources and relative privilege in accessing credit markets, political markets, and economic markets of all kinds create something similar (Marx might say, Capitalism), wherein capital-owners tend to have hierarchical, command-based relationships over others (one might call these “managerial” relationships)?  I reckon it might.

          Hmm, the other argument I’ve heard is that many businesses rely on capital that is more fixed than labour (eg it takes quite a bit of time and/or cash to turn a McDonalds into another sort of restaurant, a car factory has even more specialised labour), while labour can literally walk away (or wheel away as the case may be). So capital tends to hire labour, to handle this relative disparity in changeableness. 

          Anyway, this seems to be someting to establish more thoroughly before intefering with people’s freedoms. An awful lot of the time people seem to say “well, this might be unfair, so let’s restrict it”, which is an approach that leads us with no freedoms at all.   

          and have employer and employee negotiate the way in which work occurred democratically, on equal footing

          How would this work, if I, and a friend, hire a nanny? 

          I wager there are very few employees who would come out with *worse* working conditions if terms were renegotiated with exit for either party off the table.

          I wager there’d be far fewer employer-employee relationships at all. Certainly, I’d never hire a nanny under such conditions. 

          And turning to the employee side of things, if I couldn’t quit a job when I want, I’d far rather go and work for my father or mother, who I know love me, than pursue my current life, despite the loss of independence. 

          • good_in_theory

            On patriarchy -

            I’m not sure what the point of your naturalized story of male dominance is.  Your ‘just-so’ story could fully explain the claim that, ‘husbands had legal control and economic access’ &etc.  Why they acquired such control doesn’t impact the fact that it was used to subordinate and dominate women for hundreds (thousands) of years in any way.

            On employers -

            If you want to develop an account of the world as it exists wherein employers are in dependent, subordinate positions in comparison to workers, go ahead and try.  As the world happens to exist, high levels of asset ownership are highly correlated with pretty much every variety of privilege there is.  It might be difficult to get around that fact.

            On renegotiating contract terms -

            It’s a thought experiment, not a policy prescription.

          • martinbrock

            The apparent difference between Tracy’s ‘just-so’ story and yours is that you don’t realize that yours is a ‘just-so’ story.

          • good_in_theory

            If you can provide me some data demonstrating that ownership of capital goods isn’t highly correlated with power, privilege, and security please do so.

          • martinbrock

            It isn’t simply true. It’s not an easily observable fact, and you don’t observe the fact. You repeat a story. You’ve never observed the experience of a woman in the U.S. in the 19th century for example, and accounts of this experience rarely compared the condition to common women at the time to the condition of common men at the same time.

          • TracyW

            I’m not sure what the point of your naturalized story of male dominance is.

            Intellectual curiousity. I think you got your causality around the wrong way, when you said: “And yet, the husband’s legal control over economic resources and relative privilege in accessing the labor market created this patriarchy thing…”

            I think the causality is that patriarchy caused legal control over economic resources and relative privilege in accessing the labour market. 

            If you want to develop an account of the world as it exists wherein employers are in dependent, subordinate positions in comparison to workers, go ahead and try.

            I think you are stuck on an overly simple hierachical theory of power. You appear to be assuming that either employers have more power than workers, or workers have more power than employers. I think this misses an important complexity in the real world, where both employers and workers gain from cooperation, and have different sorts of power. 

            And I still maintain that interfering with people’s liberty should have more of a justification than “I reckon it might.” 

            Of course, if you can come up with some good reasons as to why I should follow your suggestion, I might well take it up. But at the moment you have provided no such reasons. 

            As the world happens to exist, high levels of asset ownership are highly correlated with pretty much every variety of privilege there is.  It might be difficult to get around that fact.

            Um, it’s not a fact. For a start, the right to leave a job is a pretty darn important privilege. The right to live in more than one country is a pretty important privilege, and it’s open to every EU citizen regardless of asset ownership. The right to live in a country with a reasonably tolerable administration of justice is a pretty important variety of privilege and tends to come with birth. In some countries, such as wealth, a high level of asset ownership makes you a target. 

            Leaving aside such legal powers, in the practical world, some assets are more fragile than others. Some examples come to mind – delicate machinery can be broken, farm land can be harmed by incorrect handling (eg salinisation by evaporation), in those situations workers have powers, as well as the issues I talked about earlier of many times capital being more fixed in form than labour. 

            It’s a thought experiment, not a policy prescription.

            Yes, the fact that it was being made in a comment on a blog post was rather a give-away on that point. :) I found it an interesting thought experiment however, if you would like to discuss your thought experiment further, I would appreciate it. 

        • TracyW

          have employer and employee negotiate the way in which work occurred democratically, on equal footing,

          Another thought, how should this work for government jobs? How should elected politicians (as the representatives of the taxpayers) negotiate with public employees about the way in which work occurs? Should for example the police negotiate on an equal footing about which laws they want to enforce? (this happens now, but generally we regard this as a bad thing). Should school teachers negotiate who they want to teach on an equal footing, or negotiate what the goals of education are?  

          • TracyW

            And what makes a negotiation democratic, anyway? (This is a genuine question, not a rhetorical one). 

        • martinbrock

          … if terms were renegotiated with exit for either party off the table.

          Why would I want an employer-employee relationship that I’m not free to exit? The word for this relationship is “serfdom”.

          • good_in_theory

            It’s a thought experiment, not a policy prescription.

          • martinbrock

            That’s reassuring.

  • Damien S.

    “For example, a UBI would discourage employers from behaving badly”
    “Fourth, government can play a role as a ‘knower organization’”
    “None of these policy changes involve trampling on people’s freedom”

    Except, of course, for those who would view the government paying for the public good of such information (out of taxes), let alone UBI, as a horrible trampling on people’s freedom.

    I kind of think we need better labels to distinguish between moderate libertarians, (e.g. your average Keynesian economist, who, compared to the political norm, would tend to push policies favoring individual freedom and choice and tearing down unwarranted regulation or subsidies, without being allergic to the idea of useful regulation and provision of public goods), and night-watchmen and even more radical libertarians.   Some way to say “I care about limited taxi medallions and hairdresser licenses and stupid zoning” without implying “I want to abolish welfare and go on the gold standard and I think global warming is a hoax”.

    I guess BHL might be trying to be such a label, but I don’t think it has the coherent moderateness to pull it off.  Actually I don’t think it has any policy coherence at all, where one could say “BHLs believe X” with any great utility.

    Alternately I’d be happy with some way of saying “liberal or social democrat who’s more hip to economics and reasonably market friendly”.

    • good_in_theory

      Third-Way Neoliberal?

      • Dale Miller

        Centrist?

  • Dale Miller

    When I discuss this issue in my business ethics course and I want to motivate the “liberal” position, I ask the students whether it would be easier for them to find a new job if they lost their current one (sadly, they almost all work in addition to going to school) or for their employer to replace them. The answer is almost uniformly  that it would be easier for their employer to replace them, and this was true even several years ago, before the unemployment rate went so high. And so I explain the liberal position as being that while making it as easy for employers to fire people as it is for employees to quit would produce a sort of “formal” equality in their positions, in the vast majority of cases it would (and does) produce considerable substantive inequality—and that this only becomes more true as more of the economy is dominated by larger corporations, reducing the number of potential employers in many fields.

    • martinbrock

      Your students’ answer to this question is a poor measure of the truth of their answer. For students working part-time at tasks requiring only common skills, the answer seems accurate enough, but I don’t see a problem with that.

      It doesn’t follow that my employer can replace me more easily than I can replace my employer, and I don’t believe it can.

      … making it as easy for employers to fire people as it is for employees to quit would produce a sort of “formal” equality in their positions …

      You can’t expect a state to create this balance between you and your employer. You can only create it yourself. If you can’t create it, you should search for another employer.

      It’s not that a state should not create this balance. It cannot create the balance. It can insert itself between you and an employer, but if you expect this insertion to help you more than the employer, you’re whistlin’ Dixie.

      Larger corporations dominate the economy more as the largest corporation (the state) grows larger. This fact will never change.

      • http://www.facebook.com/adellutri Aaron Dellutri

        It doesn’t follow that my employer can replace me more easily than I can replace my employer, and I don’t believe it can.

        What a delusional thing to say. It is way easier for your employer to replace you than the other way around. They have all these other employees to pick up your slack, you have a working spouse if you’re lucky.

        • martinbrock

          How can you possibly know that my employer can replace me more easily? You can only be stating an assumption here.

          Your assumption is mistaken. Other employees, even the ones down the hall from me, cannot easily pick up my work. I can’t easily pick up their work either. If you don’t believe me, ask them.

          It’s not just that we’re all busy. We’re software developers, and we create highly specialized, complex software for power systems engineering applications. We create the object of our work on a daily basis. I know what I’ve created over the years better than they ever could, because the software is intertwined with information existing only in my head. Reproducing this information in another head is more difficult and time consuming than you imagine.

          I’m not irreplaceable, but replacing me is much more costly than keeping me.

          • http://www.facebook.com/adellutri Aaron Dellutri

            I have a tech job in the financial industry and I’ve dealt with plenty of software designers. It’s great that you’ve built up such a nice working relationship with your employer but I suspect you’re over-estimating the true value of your knowledge. I’ve seen designers and managers let go before and seen how even very complex systems can be unwound and re-created differently when this becomes necessary. The truth is that even a very skilled person like you is easier to replace than you imagine.

          • djw

            Yeah, without making this about martinbrock’s irreplaceableness or lack thereof, I’ve spent quite a bit of time around people who work in software design, and I strongly suspect that that’s a profession where employees overestimate their own unique value to their employer considerably more than most.

          • Dale Miller

            Well, if you don’t document your code, so that the knowledge of how it works is intertwined in your head and no one else can make sense of it, then you might be pretty hard to replace in the short run…

          • djw

            There are actually a lot of professions in which doing your job shoddily (but uniquely) can make you harder to replace….

          • djw

            There are actually a lot of professions in which doing your job shoddily (but uniquely) can make you harder to replace….

          • TracyW

            If you can’t be replaced, you can’t be promoted. 

          • martinbrock

            I can be replaced, but a rational employer prefers not to promote me, if “promotion” means that I cease supporting my past work, unless I’m truly more valuable in a new role, higher up in an authoritarian bureaucracy, closer to the most central planners (which I doubt). If I want this promotion, an employer may promote me understanding that I’ll aid the handoff of my work to others while assuming the new role.

          • martinbrock

            Documenting code can be helpful, but it doesn’t much change the balance, because someone must still read the documentation, and the documentation of source code implementing complex power engineering methods can be very dense, practically as dense as the source code itself.

            Software patents are counterproductive for similar reasons. Reverse engineering takes practically as long, if not longer, than reinventing.

          • http://www.facebook.com/adellutri Aaron Dellutri

            djw, I absolutly concur that software designers, while generally an interesting group, do tend to greatly overestimate the value of their skills.

          • martinbrock

            You’re reassuring yourself of something here, but you aren’t saying anything meaningful about software engineers.

          • http://www.facebook.com/adellutri Aaron Dellutri

            I’m not reassuring myself of jack shit. I’m instead pointing out that software engineers can be a somewhat naive & even arrogant group.

          • martinbrock

            My replaceableness is a given, but I am uniquely valuable to my employer, at this point in time, as a matter of fact. I may overestimate the value, but a value exists, and denying it is nonsense. That someone else may become equally valuable in sufficient time is irrelevant. The length of time required is relevant. The number of customers told to wait while someone else unwinds and recreates my work is relevant. These things are costly.

          • TracyW

            On the other hand, having unwound and re-created very complex systems myself, I know it’s very time-consuming. 

          • http://www.facebook.com/adellutri Aaron Dellutri

            No question it can be hard to do. But to tie this back to the main point, if your employer really wants to be rid of you, they’ll just hire some other people who’ll find a way. Or, they’ll keep using your system without knowing how it actually works, until it breaks! At which point they will buy a new one.

          • TracyW

            Yep. The cost of replacing someone is a disincentive to casual firing, and laying off, not an absolute barrier. As they say, the graveyards are full of people who were indispensable.

            The point being, though, that firing an employee is not cost-free to the employer. 

          • martinbrock

            If my employer really wants to be rid of me, he will be, because he’s the employer and I’m not, but being rid of me doesn’t necessarily improve his situation by worsening mine. Leaving a job has always been a plus for me in retrospect, in strictly monetary terms, regardless of how I left it. I don’t know the experience of my former employers.

            The only possible exception was leaving the Federal government, accounting for the unusually rich health and pension benefits of Federal employees. Of course, if you expect everyone to become Federal employees with these benefits some day, you’re delusional. You might as well expect everyone to become a feudal lord.

          • martinbrock

            … having unwound and re-created very complex systems myself, I know it’s very time-consuming.

            It’s more time consuming, more difficult and less pleasant than maintaining your own code, assuming that you’re a competent developer. Unless an employer is overpaying a developer, replacing him is more costly in every respect.

          • martinbrock

            Of course, I can be let go, and my work can be unwound and recreated, but paying someone else to unwind and recreate it is more costly than paying me to maintain it. The possibility of replacing me is irrelevant. The cost of replacing me is the issue. As long as retaining me is more cost effective than replacing me, my employer retains me, unless he wants the higher cost for some reason.

        • TracyW

          A general rule of thumb in my area is that it takes about 6 months for a new employee to start earning their salary (whatever level that be), as it takes time for them to adapt to the new job. 

          For me to find a new job takes longer than my brother the chef, but I haven’t been out of work for 6 months.  

      • Dale Miller

        I think that you probably didn’t quote the line from my original post that you intended. You probably meant to quote what I wrote about a “substantive” balance, and to say that the state can’t create that. Now in my post I was lay out how I explain one side of the issue to students, not necessarily presenting my own thinking. But I do think that there are some things that the state can do to protect employees from arbitrary dismissal that do benefit them much more than employers. I don’t think that employers benefit at all from sexual harassment law, to name an obvious example. Maybe it’s not the state’s job to protect employees from arbitrary dismissal, of course; that’s a different question. 

        As far as corporations go, I think that large corporations make it much harder to argue for a smaller state. Here’s a suggestion/request/challenge for our blogmeisters: what’s the BHL position on limited liability?

        • TracyW

          Yet, as regulation increases the fixed costs of running a business (eg the need for systems to ensure you’re complying with the regulations), it creates an incentive towards larger corporations to cover those fixed costs.  
          For example, if employers can’t fire at will, and also are obliged to protect their employees against sexual harassment, then a company, when faced with an accusation that one employee sexually harrassed another (eg a manager sexually harrassing a staff), must start a formal legal process to work out what happened, and document it, in case they’re sued by either party. 

          Now this might be worthwhile, but it does favour having a formal HR team, with training in what previous case law has said about sexual harrassment versus firing without cause, and setting up formal systems, and making sure that everyone relevant is trained in following them. A small company can hire that out, but managing that contract takes overhead time too.   A large corporation can spread that fixed cost over more people. 

          (Note, exemptions from laws for companies below a certain size create a disincentive for companies to grow above that cut-off. Thus, if a piece of work is naturally more economically done with a larger team, then those large pieces will tend to be done by even larger companies). 

          • Damien S.

            Yet the US has a lower rate of small businesses than many European countries.  Red tape Italy’s king of small business.

            Granted, a lot of that may be due to health insurance, where working for a large company is basically the only way to reliably get affordable insurance.

            Well, outside Massachusetts, where Romneycare socialism means that one can try to be self-employed without fear of being bankrupted by surprise medical costs.

          • TracyW

            As I noted, exemptions for small businesses from regulations discourage them from growing larger.  See 
            http://www.economist.com/node/21548923

            And also, one way of avoiding sexual harassment charges is to stay so small that you can supervise everything directly, and therefore stop any sexual harassment. Or only hire family members and rely on family procedures to avoid legal disputes. 

            Out of curiousity, what’s your source for business sizes? 
            (Note, I’m not an American, I have no particular interest in defending or criticising the US healthcare system, I think Americans do both sides of that quite thoroughly themselves.)

        • martinbrock

          An ideal state can do many things that real states do not.  I don’t think that sexually harassed employees benefit much from sexual harassment law. A few harassed employees hit the jackpot while others, like HR executives governing a growing bureaucracy and vendors selling harassment training (I’ve dozed through my share) and attorneys filing claims, benefit more than typical harassed employees, and some not-so-harassed employees also file claims hoping to hit the jackpot. A law against sexual harassment has all of these effects.

          If large corporations make it hard to argue for a smaller state, then the state will always grow larger, because larger corporations are a product of a larger state.

          • Jessica Flanigan

            I also agree with this. Further, addressing sexual harassment claims in these ways can sometimes have the unintended consequence of stigmatizing harassed employees even further. Also, sexual harassment sometimes (often?) comes from coworkers, not from employers. Employers have big incentives not to harass their employees, not just legal incentives, but people don’t work as well when their bosses are creeps. In contrast, coworkers, (especially in a competitive environment and especially when it’s really hard to fire anyone) don’t have much holding them back from harassing the people they work with. I’m not saying this is how it usually goes, but it’s possible that limits to an employer’s right to fire may mean that inappropriate coworkers stay on the payroll even when they harass other employees.

      • http://www.facebook.com/adellutri Aaron Dellutri

        You can’t expect a state to create this balance between you and your
        employer. You can only create it yourself. If you want it and can’t
        create it, you should search for another employer.

        The bottom line, Mr. Brock, is that as an employee, or even a free agent, you can’t create it for yourself, not in any meaningful sense. The balance between employer and employee is inherently very unequal, even when the employee is a very skilled, confident worker like yourself.

        • martinbrock

          Yes, you can. The balance between employer and employee is not inherently unequal. It may be unequal in many cases within a corporative state, like the United States, but it is not inherently unequal.

          You can’t possibly know enough about my relationship with my employer to reach a conclusion in my specific case, so the fact that you apply your generalization to me only demonstrates that you overgeneralize. You only repeat a dreary assumption here. You could instead search for more fruitful employment.

          • http://www.facebook.com/adellutri Aaron Dellutri

            The balance between employer and employee is not inherently unequal.

            Here is the kernel of your delusion. It is, totally unequal, in law and due to simple economics. Where you work or where I work is irrelevant to the question at hand. This is not about personalities, it is about realities.

            It may please you to believe that you are a powerful member of an unassailable worker caste. If push comes to shove, however, this vain attitude will avail you nothing.

          • martinbrock

            I’m describing my experience in reality. You’re describing a theory that doesn’t reflect my experience.

            I never anywhere claim to be a powerful member of an unassailable worker caste. You think in these terms. I don’t. I’m an individual. My relationship with my employer is unique. Other software developers are not me, and I am not them. Other employers are not mine.

            You’re simply mistaken in my case. My vain attitude has gotten me fired more than once, but in each case, my situation measurably improved (measured by income) in a few weeks, even when I had no plan to leave. Leaving an employer, intentionally or otherwise, has always left me better off.

          • http://www.facebook.com/adellutri Aaron Dellutri

            It’s certainly flattering of you to frame the discussion in terms of me denying my true agency and whatnot, but I’m less interested in flattery than I am in a realistic assessment of the economy and the matrix of employment laws that we all exist within. It is not really about our idiosyncratic employment situations, it is instead about US employment as a whole.

          • martinbrock

            I don’t pretend to know much about “U.S. employment as a whole”. The notion is like “the average man”.

    • TracyW

      But making it more costly to fire people at the margin discourages some people from being hired, and thus creates a considerable substantive inequality between people with jobs, and unemployed people.  

  • Consumatopia

    I don’t expect to win any converts on the larger issue of whether respecting liberty requires bowing to the demands of property and contracts.  But I think, on further reflection, you’ll realize that the comparison of employment relationships to marriages is not very useful.

    Most obviously, I very much doubt that you really want the process of terminating an employee to be similar to a divorce or custody hearing in family court!

    “Employment relationships are relevantly similar. Like marriage, our identities are shaped by our relationships at work, and work matters a lot for our happiness. Work can be a central life project. For these reasons, both employers’ and employees’ rights are important.”

    But none of this necessarily applies to the employer.  The actual owner(s) of a factory may never show up on the site–or only show up to harass an employee.  In so far as it would apply to a particular employer, it’s because that employer is also acting as an employee of their own company–most likely, as a manager or executive.  Our identities our shaped by our relationships at work if we are workers.  And while the manager or executive should certainly have no fewer rights than other workers (e.g., the right to quit their job), we can’t use that to argue that they should have more rights (e.g. the right to force other people to leave.)  We may still believe it, but this particular argument doesn’t justify that belief.

    The right to fire at will is not claimed because the employer’s identity is shaped by work relationships, or because the employer’s work matters a lot for the employer’s happiness, or because the work is the the employer’s central life project.  For none of those things are necessarily true, nor are you willing to grant the same powers to other people for whom those things are true. The employer claims this privilege only because the employer happens to be the one who owns the building where all these other work relationships and central life projects are unfolding.  And a comparison between owning a piece of property and being in a marriage is a more difficult one to make.

    • good_in_theory

      “And a comparison between owning a piece of property and being in a marriage is a more difficult one to make.”

      Well, not really.  Coverture and all that made the two somewhat analogous not so long ago.

  • SheetWise

    “In an unequal world, where access to employment is in the hands of the
    few, then it is certain that at least some of the few will take
    advantage of their position to abuse and humiliate their subordinates in
    various ways, including sexually.”

    I find it amusing that Bertram brings up the sexual issue.  Think about cases involving improper relationships between teachers and students.  The one common theme I keep observing is teachers being re-tasked, suspended with pay, or transferred — but not fired.  Is that the union solution?  Sometimes the person an employer wants to fire is the same person who is in a “position to abuse and humiliate their subordinates in
    various ways, including sexually.”  One problem with liberals is that they always portray the worker as the victim.

    • Dale Miller

      Hmm, that sounds more like Catholic priests (what a union they have!) than teachers. The common theme that I keep noticing with teachers is  their mug shots; they’re not only fired but do time, or at least have trials.

      • SheetWise

        Like the alliance between priests, teacher unions manage to contain most incidents.  Compared to what the insiders are aware of, the public sees the tip of the iceberg.  What I found amusing is the mindset that union workers are always the victims — never the miscreant.

  • http://www.facebook.com/people/Roderick-Tracy-Long/1037941173 Roderick Tracy Long

    They can’t and don’t take seriously the realities of private power, of domination, and of the need for someone (the state or the unions or both)

    Some of us at BHL oppose the state’s intervening but are all for unions’ intervening; see, e.g., this.

    • Robert Levine

       The paper at the link is definitely worth reading, and reinforces my long-held belief that current labor law severely disadvantages unions and employees. What we actually have is freedom of contract for employers but not for employees.

      In a truly libertarian economy, labor unions would flourish, I believe.

  • http://www.facebook.com/people/Roderick-Tracy-Long/1037941173 Roderick Tracy Long

    They can’t and don’t take seriously the realities of private power, of domination, and of the need for someone (the state or the unions or both)

    Some of us at BHL oppose the state’s intervening but are all for unions’ intervening; see, e.g., this.

  • http://pulse.yahoo.com/_IS6D45LBBXR5X4WFMPHTTB5ZVY InStereo

    The consequences of allowing employers to fire an employee at will massively out weight the consequences of placing restraint on the employer.  The examples given in this argument are specious and not rooted in reality.  Companies with terrible labor practices, pr, and public image thrive due to a labor market desperate for a job.  If societal pressure can push employees into bad jobs then society can pressure employers to curb their morally and ethically abhorrent behavior through laws.  In the choice between Capital/Labor governing the people, and our Government of the people governing, the latter will always win out.

    • TracyW

       
      If societal pressure can push employees into bad jobs then society can pressure employers to curb their morally and ethically abhorrent behavior through laws.  

      But pressuring someone is not the same as actually ending a bad behaviour (obviously, the illegal drug trade is under pressure from laws but illegal drugs such as dope and heroin are still widely available, albeit probably more expensive than they would be if they were fully legal).  

      One difficulty with laws curbing bad behaviour is that if the employee has broken a law, and the employer can credibly threaten to reveal this fact to the authorities, then the employee is going to be reluctant to turn to the law. 

      Also, laws only help with things that the general public finds morally and ethically abhorrent.  A low unemployment rate helps with whatever you personally find morally and ethically abhorrent. 

  • 3cantuna

    Daniel B. Klein’s article on “knower organizations” does not, contra what you imply and recommend,  look favorably on government.  In fact, the government is the worst of all solutions to knowledge/trust issues in a market place.   Why would you even cite it in support of government intervention?

    • Jessica Flanigan

      The point is just that if there is ‘market failure’ in information, or even if there isnt, it’s conceivable at least that government could help this problem by promoting informed employee choice. I also favor private knower organizations, which are the ones I link to in the other links on that section (like Angies list,) but if progressive liberals are looking for something that government can do to combat employer abuses, I’m suggesting that they focus on providing the public good of information before resorting to coercive restrictions.

      That, I take it, is also Kleins point. He argues that government too often restricts consumer choice on the grounds that there isn’t enough information for informed decision making, but that voluntary knower organizations can make informed choice possible. If private knower organizations can do it, then why couldnt government also do it so that everyone can enjoy the epistemic benefits of some kind of testing agency. the CPSC database is a good example.

      So while I agree that it would be better if there was competition among knower organizations and they were private, failing that I don’t think it’s nearly as terrible that the government play an epistemic role as it is when the government coerces employers. Do you?

      • 3cantuna

        Thanks Prof. Flanigan.

        Government produces public bads, not goods.

        1) regulatory capture 

        2) inability to handle information– weighing, putting together, coordinating appropriate response (Hayek, Mises, ….).  e.g. All the significant pieces of the pre-911 terrorist plot were known by government.

        3) The non-economic nature of government agencies in themselves: no pricing of resources, entrepreneural calculation, or social feedback that amounts to accountability on expenditure (profit/loss sheets); lack of incentive to serve public (no profit motive tied to serving market); the control of resources but not the responsibility for them;  the one-sided government protected nature of an agency– it can set the price arbitrarily etc.  Lack of competition creates status.

        and so on….

        If you want to have the government watch employers– and you know that 1, 2, 3 are in play, how would you answer “Quis custodiet ipsos custodes?”  Who will police the government?

  • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

    Just one note: My stomach always goes a bit queasy when I read about the “rights” of employers when said employers are almost universally corporations. It immediately renders most of the argument moot.

    • SheetWise

       Wow.  That is so incredibly crude and shallow.  Who peed in your lemonade?

      • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

         The Supreme Court. Citizen’s United.

        • SheetWise

           So, can I assume you oppose all structures used to organize people — or is there something special about corporations?

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  • 311006

    Better than UBI is low unemployment and plentiful jobs.

    Job creation without higher government spending, inflation, or trade barriers: /ɯoɔ˙ʇodsƃolq˙uɐlduoıʇɐǝɹɔqoɾ//:dʇʇɥ

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