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Gilded Age Conceptions Of Labor Contracts: Wrong Then, Wrong Now

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Many of you will be familiar with the first Justice Harlan’s response to the bare majority of the Supreme Court’s conclusions that maximum hours laws violated the 14th Amendment:

It is plain that this statute was enacted in order to protect the physical wellbeing of those who work in bakery and confectionery establishments. It may be that the statute had its origin, in part, in the belief that employers and employees in such establishments were not upon an equal footing, and that the necessities of the latter often compelled them to submit to such exactions as unduly taxed their strength.

I think Yglesias’s response to Erik, which suggests that trying to apply more stringent labor standards to American corporations abroad is undesirable even in principle, makes the same basic mistake the Lochner majority did:

I think that’s wrong. Bangladesh may or may not need tougher workplace safety rules, but it’s entirely appropriate for Bangladesh to have different—and, indeed, lower—workplace safety standards than the United States.

The reason is that while having a safe job is good, money is also good.

Ygelsias, admittedly, does concede that there are areas where collective choices to interfere with labor contracts are justifiable — as, for that matter, the Lochner majority did — but he nonetheless simply assumes that the safety conditions that led to the death of at least 194 people represented free choices made by the Bangladeshi state and Bangledeshi workers. The problem is that I see no basis for this assumption. Without endorsing everything in the Mr. Destructo critique, this is right at the heart of the question:

The building, which housed 5,000 workers laboring in four clothing sweatshops, churning out low-cost exports for retail stores like DressBarn and Benneton, had been closed by government inspectors on Tuesday, following reports of cracks in the building’s foundations and walls. Though engineers warned of a collapse, the building’s owner, the politically connected Mohammed Sohel Rana, assured a Bangladeshi newspaper that the cracks were not serious, while his tenants ordered their workers back into the listing building. As hospitalized laborer Nurul Islam stated, “None of us wanted to enter the building. Our bosses forced us.”

A fairly open-and-shut case of criminal negligence, inflicted on a horrifying scale against hundreds of the most vulnerable people on Earth—all of them impoverished, half of them women, and at least some of them children, crushed in day-care centers on the building’s ground floor. The crooked owner, Sohel, had flouted the law over the past five years by illegally adding three stories on top of the building, likely causing the cracks. In contravention of the law, the sweatshop foremen coerced hundreds of people fearful of losing their jobs into dying instead.

This is the key problem: I don’t see who’s making the “choice” to ignore the basic safety of workers except for the rapacious employer and, by extension, the companies using his exploitative services while looking the other way. This certainly wasn’t the choice of the Bangladeshi state, since the practices of the factory that lead to the deadly collapse were illegal. The workers made a “choice” put their lives at risk in conditions that were known to be appallingly unsafe only according to the kind of logic that led hack Gilded Age jurists to conclude that minimum wage and maximum hours violated the due process rights of not only employers but of workers. The argument for greater intervention on the part of richer liberal democracies to enforce tougher labor standards is not an argument that we should be imposing “our” values on Bangladeshi citizens who don’t value worker safety the way we do. It’s argument that we should be using the greater enforcement capacity and leverage of richer liberal democratic states to enforce values that all evidence suggests are shared between richer and poorer nations. (Hobbes didn’t have an explicit section in Leviathan that we have a universal shared interest in not being crushed by collapsing building so that a well-connected scumbag could employ more people in his sweatshop and American retailers could save a few pennies a unit, but I think his general logic applies here.)

If you want to say that Erik’s solution is politically impractical, as I’m sure he’d be the first to agree you’re probably right. I don’t have any immediately feasible policy solution to present you. But I don’t see any objection in principle to the idea that the American government should be doing more to prevent gross abuses of workers being employed on behalf of American corporate interests and consumers. If there are problems with any given policy solution, it’s certainly not that such policies interfere with the free choices of Bangladeshi workers to work in buildings that are illegally unsafe.

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