Thursday, March 29, 2012

master and servant, NOT principal and agent

The way that labor economists normally think about employment relationships is in terms of "Principal-Agent Models". The term "Principal-Agent" is meant to classify any set of models in which the Agent's behavior is in some way influential on the profitability of a project, of which the Principal is the residual claimant.

The thing is, the history of employment law in America has not developed according to Principal-Agent law. Principal-Agent law is normally used to describe relationships between, say, a merchant (Principal) and the deliverer of the merchant's goods (Agent). Because the Principal will not get paid unless the Agent gets the goods to the customer on time, it seems natural to think about the legal dimensions of such a relationship using Principal-Agent law.

So what kind of law has historically been applied to employment relationships?

...Wait for it...

Master-Servant law. Traditionally used to define the ambit of the master over his servant in feudal England, this body of law was transported to the U.S. by legal scholars in the late 18th century. By the early 19th century, when industrialization began to develop in the U.S., courts by default applied Master-Servant law to employment disputes.

So labor economists are wrong for talking about labor relationships in terms of Principal and Agent. That's not how contract law thinks about workers and employers! From the early 1800s up until today, (yes, today), employment law is largely defined as the law of Master and Servant. Principal-Agent law is separate and certainly does not deal with labor contracts between employer and employee.

Chalk it up to another reason why labor economics is inherently bourgeois and therefore evil.

Saturday, March 24, 2012

39 stripes

A slave code from Alabama (1852) reads:
#993. The patrol has power to punish slaves found under the circumstances recited in the preceding section, by stripes, not exceeding thirty-nine. 
(The "patrol" was the officer in charge of making rounds on the various plantations to catch slaves who were off their master's plantation without permission or who were simply loitering. Any white, male slaveowner below 60 years old were required to be available for patrol duty -- seems similar to jury duty today.)

Why 39? The number comes from the amount of lashes Paul received from the Jews, according to 2 Corinthians 11:24. Jewish executioners were not allowed to go above that amount of lashes according to the law of Moses (later codified into Roman law). 40 lashes was considered a death sentence.

Monday, March 5, 2012

legal history teaching materials

Someone who commented on my previous post asked for the reading list for the course I'm teaching on law, labor, and capitalism. I linked to it back in January -- you can find the post in which I linked to it here.

In addition to the reading list, I've uploaded two more items (both PDF). The first here is slides from a lecture I gave on the history of police in American history (inspired by Christopher Tomlins' research on the subject), titled "'F*ck tha Police'? Law, Institutional Change, and the American Revolution". The second here is a lecture on the relative autonomy thesis as applied in Morton Horwitz's brilliant Transformation in American Law, 1780-1860. The title of that one is much less interesting: "Relative Autonomy and Historical Materialism in Horwitz's Transformation in American Law".

Just a brief note: the field of legal history is ripe for economists' picking. It is indeed due time to revive the idea of a "law and economics for the left", or a "radical law and economics", or maybe simply, "heterodox law and economics", something in the spirit of the early 20th century Commons-esque old institutionalism, but updated with a more interdisciplinary and stronger theoretical outlook. I humbly consider my dissertation as one step in that direction -- we'll see where that goes.

More on these issues when I get around to getting them out of my head and putting them down somewhere.