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Published online by Cambridge University Press: 10 February 2020
In this essay I examine restrictions on labor as takings of property: a liberty to work is property, and restrictions of that liberty are takings. I set property in one’s labor within a unified framework for all forms of property, understood as a social institution for balancing two freedoms: freedom to act even if it interferes with someone else, and freedom from interference. As such, property includes not only possession but also use and disposition. To restrict use or disposition is to alter those freedoms, which is a taking of property, including property in one’s labor. I understand such takings to be justified insofar as they benefit the persons whose freedoms are altered, taking up the question of when restrictions on use and disposition of labor are to the benefit or the harm of excluded workers. Appreciating that labor is property, and that restrictions on labor are takings, reframes the justificatory burden that restrictions on labor must bear. And where that justification is lacking, this approach reframes the nature of the wrongs that unjustified restrictions perpetrate, especially against the most vulnerable workers.
Work on this essay was supported by a visiting fellowship at the Eudaimonia Institute, Wake Forest University, in spring 2018; I thank the directors, staff, and donors of the Institute. For comments on earlier versions I thank Mark LeBar and Greg Robson; those who attended my session at the March 2018 PPE Society Meeting, particularly Billy Christmas, Charles Delmotte, Eric Mack, Jim Otteson, and Dave Schmidtz; and the other contributors to this volume. Last but certainly not least, I thank Carmen Pavel, Dave Schmidtz, Bas van der Vossen, an anonymous referee, and the editorial team at Social Philosophy and Policy.
1 “Interference” here is a descriptive rather than a normative term, and one of our central questions will be when interference is wrongful.
2 Section I develops the approach to property I take in “Self-Ownership as a Form of Ownership,” in Schmidtz, David and Pavel, Carmen, eds., The Oxford Handbook of Freedom (New York: Oxford University Press, 2018).Google Scholar
3 On this general rationale for forced rearrangements of rights, see Coase, Ronald, “The Problem of Social Cost,” Journal of Law and Economics 3 (1960).CrossRefGoogle Scholar
4 Schmidtz, David, “The Institution of Property,” in Schmidtz, Person, Polis, Planet (New York: Oxford University Press, 2011).Google Scholar
5 Coase, “The Problem of Social Cost.”
6 See also Rose, Carol, “Property as Wealth, Property as Propriety,” Nomos 33 (1991): 232.Google Scholar
7 Bamford v. Turnley 122 ER 25, vol. 122 (1862).
8 See Hohfeld, Wesley N., “Some Fundamental Legal Conceptions as Applied in Legal Reasoning,” Yale Law Journal 23 (1913).CrossRefGoogle Scholar
9 George Bramwell, opinion in Bamford v. Turnley (1862).
10 I owe the phrase to Richard Epstein, “Nuisance Law: Corrective Justice and its Utilitarian Constraints,” Journal of Legal Studies 8 (1979): 82.
11 See Mack, Eric, “Elbow Room for Rights,” in Sobel, David, Vallentyne, Peter, and Wall, Steven, eds., Oxford Studies in Political Philosophy (New York: Oxford University Press, 2015): 204–7.Google Scholar
12 Schmidtz, David, “Property and Justice,” Social Philosophy and Policy 27, no. 1 (2010).CrossRefGoogle Scholar
13 On these three incidents of property rights, see Epstein, Richard, Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985), 59.Google Scholar
14 Daniel C. Russell, “Locke on Land and Labor,” Philosophical Studies 117 (2004). Contra G. A. Cohen, Self-Ownership, Freedom, and Equality (New York: Oxford University Press, 1995), 173.
15 The classic discussion is Guido Calabresi and A. Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” Harvard Law Review 85 (1972).
16 Morris Kleiner, “Occupational Licensing,” Journal of Economic Perspectives 14 (2000): 191. The locus classicus is Kenneth Arrow, “Uncertainty and the Welfare Economics of Medical Care,” American Economic Review 53 (1963). See also Akerlof, George, “The Market for Lemons,” Quarterly Journal of Economics 84 (1970): 500;CrossRefGoogle Scholar Shapiro, Carl, “Investment, Moral Hazard, and Occupational Licensing,” Review of Economic Studies 53 (1986).CrossRefGoogle Scholar
17 See Kleiner, Morris and Krueger, Alan, “Analyzing the Extent and Influence of Occupational Licensing on the Labor Market,” Journal of Labor Economics 31 (2013): 184–85.CrossRefGoogle Scholar
18 Arrow, “Uncertainty and the Welfare Economics of Medical Care.”
19 For discussion see Kleiner, “Occupational Licensing,” 192; Carolyn Cox and Susan Foster, The Costs and Benefits of Occupational Regulation (Washington, DC: U.S. Federal Trade Commission, Bureau of Economics, 1999), 9–11.
20 See again Hohfeld, “Some Fundamental Legal Conceptions as Applied in Legal Reasoning.”
21 Demsetz, Harold, “Toward a Theory of Property Rights,” American Economic Review 57 (1967): 347.Google Scholar
22 It is even possible to characterize the state in terms of this power, as a network of forced exchanges; Epstein, Takings, 15.
23 Gordon Tullock, “Public Decisions as Public Goods,” Journal of Political Economy 79 (1971): 917. I am using the phrase “public good” as economists do: a good that is both nonrivalrous and non-excludable.
24 See Richard Epstein, “The Clear View of the Cathedral,” Yale Law Journal 45 (1993): 2092-93, 2096-2111, 2120; Epstein, “The Seven Deadly Sins of Takings Law,” Loyola of Los Angeles Law Review 26 (1993): 963–64.
25 See Epstein, “The Clear View of the Cathedral,” 2111–20. It isn’t obvious what institutional form those limits should take: Epstein (Takings) argues that it is a strong judiciary; William Fischel (Regulatory Takings: Law, Economics, and Politics [Cambridge, MA: Harvard, 1995]) that it is a strong judiciary at some levels of government, but various sorts of political activism at other levels. See also Daryl J. Levinson, “Making Government Pay,” University of Chicago Law Review 67 (2000).
26 See Epstein, Takings, 96–97.
27 See Epstein, Takings, chap. 9. See also Fischel, Regulatory Takings, 153.
28 For the same reason, it is not a taking when a lease on public land is canceled, where the lease agreement permits (United States v. Fuller 409 U.S. 488 [1973]). See Epstein, Takings, 146–51.
29 See also Epstein, “The Clear View of the Cathedral,” 2113; cf. Frank Michelman, “Property, Utility, and Fairness,” Harvard Law Review 80 (1967): 1182.
30 Given the presumption of property-rule protection, the proper standard is necessity rather than mere expediency. See Epstein, Takings, 110.
31 See Epstein, Takings, 166-68, 179, 181. Of course, it is as important to be as strict about “public goods” as it is about “public use.” Unfortunately, human imagination overproduces purported examples of public goods; see Coase, “The Lighthouse in Economics,” The Journal of Law and Economics 17 (1974).
32 See Epstein, Takings, 167 and chap. 18.
33 Berman v. Parker 348 U.S. 26 (1954), 36; Hawaii Housing Authority v. Midkiff 467 U.S. 229 (1984), 2329-30. To date the most prominent offspring of these decisions is Kelo v. City of New London 545 U.S. 469 (2005).
34 See Michelman, “Property, Utility, and Fairness,” 1182–83.
35 It is this understanding of how property claims are justified that sets apart the approach I take here from the otherwise similar approach of Liam Murphy and Thomas Nagel, in The Myth of Ownership (New York: Oxford University Press, 2002), who notice that property holdings exist only within institutions, but seem not to notice that a justification for holdings might attach to the institutions that license them rather than to the particular holdings per se.
36 Shapiro, “Investment, Moral Hazard, and Occupational Licensing.” For discussion see Department of the Treasury Office of Economic Policy, the Council of Economic Advisers, and the Department of Labor, Occupational Licensing: A Framework for Policy Makers, https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf, 58–60.
37 Kleiner, Morris and Krueger, Alan, “The Prevalence and Effects of Occupational Licensing,” British Journal of Industrial Relations 48 (2010): 678–79;CrossRefGoogle Scholar Kleiner and Krueger, “Analyzing the Extent and Influence of Occupational Licensing on the Labor Market,” 175–77; Kleiner, Morris and Vorotnikov, Evgeny, “Analyzing Occupational Licensing Among the States,” Journal of Regulatory Economics 52 (2017): 135–39;CrossRefGoogle Scholar Treasury et al., Occupational Licensing, 17–18. Recent data at the time of this writing are available from the United States Bureau of Labor Statistics (https://www.bls.gov/cps/certifications-and-licenses.htm).
38 Treasury et al., Occupational Licensing, 19–23.
39 Shepard, Lawrence, “Licensing Restrictions and the Cost of Dental Care,” Journal of Law and Economics 21 (1978);CrossRefGoogle Scholar Cox and Foster, The Costs and Benefits of Occupational Regulation, 29–35; Kleiner, Morris and Kudrle, Robert, “Does Regulation Affect Economic Outcomes? The Case of Dentistry,” Journal of Law and Economics 43 (2000); Treasury et al., Occupational Licensing, 60–61.CrossRefGoogle Scholar
40 Shepard, “Licensing Restrictions and the Cost of Dental Care”; Sidney Carroll and Robert Gaston, “Occupational Restrictions and the Quality of Service Received,” Southern Economic Journal 47 (1981); Cox and Foster, The Costs and Benefits of Occupational Regulation, 21–24; Kleiner and Kudrle, “Does Regulation Affect Economic Outcomes?”; Kleiner, “Occupational Licensing,” 197; Kleiner and Krueger, “Analyzing the Extent and Influence of Occupational Licensing on the Labor Market.”
41 Carroll and Gaston, “Occupational Restrictions and the Quality of Service Received”; Cox and Foster, The Costs and Benefits of Occupational Regulation, 28–29, 35–36.
42 Cox and Foster, The Costs and Benefits of Occupational Regulation, 37.
43 Shepard, “Licensing Restrictions and the Cost of Dental Care,” 188–94.
44 Institute for Justice website, http://ij.org/pillar/economic-liberty/?post_type=case.
45 Especially given the explosion of online ratings services; see Treasury et al., Occupational Licensing, 34–35.
46 See Epstein, Takings, chaps. 13–14.
47 See Epstein, Takings, chap. 14.
48 See Epstein, Takings, 204. See also Michelman, “Property, Utility, and Fairness,” 1168–69, 1171–72.
49 Fischel, Regulatory Takings, chap. 2.
50 Lucas v. South Carolina Coastal Council 505 U.S. 1003 (1992).
51 Fischel, Regulatory Takings, 59–61. See also Epstein, “Lucas v. South Carolina Coastal Council,” Stanford Law Review 45 (1992–93).
52 Cf. Epstein, “Physical and Regulatory Takings,” Stanford Law Review 64 (2012): 101; Richard Epstein, “The Harms and Benefits of Nollan and Dolan,” Northern Illinois University Law Review 15 (1995): 486; “The Seven Deadly Sins of Takings Law,” 973; Fischel, Regulatory Takings, 144.
53 Fischel, Regulatory Takings, chap. 2. By contrast, Michelman (“Property, Utility, and Fairness”) argues that a public project should proceed without compensation when the administrative and other costs of compensating would dissipate the net benefits of the project. This approach, it seems to me, takes the locus of justification to be the particular taking, and not the institution that licenses taking according to Michelman’s rule.
54 Dick Carpenter II, Lisa Knepper, Angela Erickson, and John Ross, License to Work (Institute for Justice, 2012, http://ij.org/report/license-to-work/). Ironically, it is in all likelihood not in spite of the higher stakes for EMTs that training hours are shorter, but precisely because of the higher stakes: legislatures have much more to lose by making EMTs scarce than by making cosmetologists scarce.
55 For an overview of the effects of licensing on the labor market, see Treasury et al., Occupational Licensing; see also Mary Gittleman, Mark Klee, and Morris Kleiner, “Analyzing the Labor Market Outcomes of Occupational Licensing,” National Bureau of Economic Research 2015 (http://www.nber.org/papers/w20961).
56 Kleiner, “Occupational Licensing,” 194–96; Kleiner and Kudrle, “Does Regulation Affect Economic Outcomes?”; Kleiner and Krueger, “The Prevalence and Effects of Occupational Licensing,” 681–84; Kleiner and Krueger, “Analyzing the Extent and Influence of Occupational Licensing on the Labor Market,” 173–74, 185–94; Gittleman et al., “Analyzing the Labor Market Outcomes of Occupational Licensing”; Kleiner and Vorotnikov, “Analyzing Occupational Licensing Among the States,” 143–46.
57 Kleiner, “Occupational Licensing,” 196; Treasury et al., Occupational Licensing, 12, 35–36; Patrick McLaughlin and Laura Stanley, “Regulation and Income Inequality,” Mercatus Center, 2016, https://www.mercatus.org/system/files/McLaughlin-Regulation-Income-Inequality.pdf; Kleiner and Vorotnikov, “Analyzing Occupational Licensing Among the States,” 146–50; Nila Bala, “Occupational Licensing Locks Too Many Americans out of the Job Market,” The Hill, 4 January 2018, http://thehill.com/opinion/criminal-justice/367444-occupational-licensing-locks-too-many-americans-out-of-the-job.
58 Shepard, “Licensing Restrictions and the Cost of Dental Care”; Kleiner, Licensing Occupations (Kalamazoo, MI: Upjohn Institute for Employment Research, 2006); Morris Kleiner and Kyoung Won Park, “Battles Among Licensed Occupations,” National Bureau of Economic Research, 2010, http://www.nber.org/papers/w16560; Kleiner and Krueger, “Analyzing the Extent and Influence of Occupational Licensing on the Labor Market,” 178; Gittleman et al., “Analyzing the Labor Market Outcomes of Occupational Licensing.”
59 Shepard, “Licensing Restrictions and the Cost of Dental Care,” 188-89; Kleiner, “Occupational Licensing,” 193; Janna Johnson and Morris Kleiner, “Is Occupational Licensing a Barrier to Interstate Migration?” Federal Reserve Bank of Minneapolis, 2017, https://www.minneapolisfed.org/research/sr/sr561.pdf; Treasury et al., Occupational Licensing, 39–40, 64–66.
60 Treasury et al., Occupational Licensing, 38–39.
61 Williamson v. Lee Optical of Oklahoma, Inc. 348 U.S. 483 (1955).
62 For discussion see Clark, Neily, “Beating Rubber-Stamps into Gavels,” Yale Law Journal 126 (2016), https://www.yalelawjournal.org/forum/beating-rubber-stamps-into-gavels-a-fresh-look-at-occupational-freedom.Google Scholar
63 Niang v. Carroll 879 F.3d 870, 873 (8th Cir. 2018).
64 See Bernstein, David, “The Due Process Right to Pursue a Lawful Occupation,” Yale Law Journal 126 (2016), https://www.yalelawjournal.org/forum/the-due-process-right-to-pursue-a-lawful-occupation-a-brighter-future-ahead;Google Scholar Shanor, Amanda, “Business Licensing and Constitutional Liberty,” Yale Law Journal 126 (2016), https://www.yalelawjournal.org/forum/business-licensing-and-constitutional-liberty.Google Scholar
65 For example, North Carolina State Board of Dental Examiners v. Federal Trade Commission 135 S. Ct. 1101 (2015); see Neily, “Beating Rubber-Stamps into Gavels.” Some suits have even been brought under the First Amendment, when the occupation has been one of communicating; see Neily, “Beating Rubber-Stamps into Gavels” and Shanor, “Business Licensing and Constitutional Liberty.”
66 Thornton, Robert and Timmons, Edward, “The De-licensing of Occupations in the United States,” Bureau of Labor Statistics Monthly Labor Review, May 2015, https://www.bls.gov/opub/mlr/2015/article/the-de-licensing-of-occupations-in-the-united-states.htm.Google Scholar
67 See Bernstein, “The Due Process Right to Pursue a Lawful Occupation.”
68 Pennsylvania Coal v. Mahon 260 U.S. 393 (1922).
69 It’s tempting to call this law (the Kohler Act) an exercise of the police power, but it wasn’t. Mines like Pennsylvania Coal were already supporting surface owners; the actual effect of the Kohler Act was to pressure mining companies into paying a tax (under the also-newly-created Fowler Act), as the price of retaining their support rights. See Fischel, Regulatory Takings, chap. 1; see also Epstein, “Why Is This Man a Moderate?” Michigan Law Review 94 (1996): 1761–62; Rose, “Mahon Reconstructed: Why the Takings Issue is Still a Muddle,” Southern California Law Review 57 (1984).
70 See Epstein, Takings, 50. This was the rationale stated in Penn Central Transportation Co. v. New York City 438 U.S. 108 (1978) and even in Lucas.
71 See Epstein, Takings, 104. For criticism see Michelman, “Property, Utility, and Fairness,” 1184–90, 1226–28, 1250–51; Epstein, Takings, chap. 17; Richard Epstein, “Takings Law Made Hard,” Regulation (Winter 2009–2010); Fischel, Regulatory Takings, 1–2. For a more congenial view of the Court’s approach, see J. Peter Byrne, “Ten Arguments for the Abolition of Regulatory Takings Doctrine,” Ecology Law Quarterly 22 (1995); William Michael Treanor, “Take-ings,” San Diego Law Review 45 (2008).
72 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 169.Google Scholar
