[0]: https://www.cbsnews.com/news/noncompete-agreement-feds-sue-3...
This doesn't mean you can scurry off a just build a competing product/service to your existing employer. You probably also have NDA and/or IP agreements too.
> The Commission found that employers have several alternatives to noncompetes that still enable firms to protect their investments without having to enforce a noncompete.
> Trade secret laws and non-disclosure agreements (NDAs) both provide employers with well-established means to protect proprietary and other sensitive information. Researchers estimate that over 95% of workers with a noncompete already have an NDA.
Trade secrets would generally include anything from code, approaches to problems, product roadmaps, customer lists, etc (so spans not only engineering... but also product, sales, etc).
I had to sign a noncompete once, in order to get a severance package when the company was going out of business. I asked a lawyer about it, who said don't worry about it, there isn't going to be anyone who will ever enforce it.
It was pretty messed up and this rule fixes that awful situation.
I have been hired to write software to implement investment strategies. My noncompete prevents me from leaving and immediately taking a job at company that invests in the same markets. That is a reasonable way for the company to protect its intellectual property.
> My noncompete prevents me from leaving and immediately taking a job at company that invests in the same markets. That is a reasonable way for the company to protect its intellectual property.
Takee your investment industry example - a non-compete could prevent you from taking a lucrative position in a competitor of your current employer, doing completely unrelated work like writing software for their settlement system. I would rather have the freedom to choose where I work.
Apple+ is like MSNBC: they only want incrementalist pseudo-agitators rather than those who speak truth to power. (MSNBC has a history of firing hosts who Washington king makers or Comcast executives disapprove of.)
"existing noncompetes for senior executives can remain in force."
So what happens to these people, are they stuck with the noncompete forever?
so if they leave, they can still be sued?
or is it that they can't start a competing business at the same time?
The Commission also finds that instead of using noncompetes to lock in workers, employers that wish to retain employees can compete on the merits for the worker’s labor services by improving wages and working conditions.
(A decent LLM + RAG + LexisNexis or Westlaw’s proprietary extremely extensively human annotated datasets of constutitons, statutes, case law, precedent, and scholarship, OTOH, would likely be ingredients from which a powerful professional tool could be built.)
> wouldn’t even provide reliable legal tooling.
There are already funded companies and even hobbyists in Discords I'm in doing this with RAG, also patient medical docs, etc. it's really great for that use case of specific document data like laws or a patient's medical history.
Here are some AI assistants that I created that can interpret law, examine medical docs, help you buy shampoo, or even give you price and parts comparisons at your local auto parts store: https://github.com/bennyschmidt/ragdoll-studio/tree/master/e...
I say said in jest because (and this is counter to your second point) it very likely will not replace lawyers, but become tooling for lawyers.
Also - what happens in situation where someone is leaving one company to work for a direct competitor? How do noncompetes function there to prevent sharing of confidential information or trade secrets that will help the competitor?
Folks can easily hop around, ask for higher wages and take their skills to a new company that directly competes with the old.
There's a heavy competition among the tech companies both for talent and for their businesses
The next few years will be interesting. We’ll see if any other metro outside of California will offer it real competition now that the ban on non-competes is national.
It's so dystopian that this was ever a thing.
Non-competes were supposed to exist to prevent employees from bringing trade secrets to competitors. Instead, they were used to trap people in poorly paying jobs.
What were these guys up to? https://www.ftc.gov/about-ftc/commissioners-staff/former-com...
Lot's of devs will be surprised to discover they are in policy making positions.
I absolutely love this.
I tried to negotiate to get them to at least agree making the non-compete periods pay out my full comp and not just base, but they absolutely refused to budge an inch. Some people I knew there had non-competes locked in at their base salary when they started, which in some cases was 10+ years ago, meaning that it was a relatively paltry amount. They also had a clause in them that stipulated that it was 100% at the discretion of the firm as to whether they would enforce it or not- meaning that it wasn't even a guaranteed paycheck if you left... they would decide- and only after you left or were fired- if they were going to enforce it, leaving you in limbo until they made their decision.
F non-competes. Mine worked out okay, my wife got burned hard on them and it took her career at least 2 years to recover from hers.
This is a problem for two main reasons:
1. The executive branch can unilaterally revoke these regulations, making them more volatile. Maybe my non-compete is invalid today, but will it be in 4 years when I actually want to change jobs? Changing a law takes approval of either majority of both chambers plus the president, or a supermajority of both chambers.
2. It lowers the stakes in congress, which I believe causes more misbehavior. When the stakes are actually high enough, congress tends to get things done. When the stakes are low, congress grandstands for reelection.
Not losing in court every other month.
If only we could have an election year, every year, without all the annoying ads and stress.
So at least this way, things can get done.
If Congress can delegate authority at will and with tremendous vagueness vagueness (as in the case of the FTC) then that allows Congress to be more disfunctional. If the Court reverses Chevron and later guts the FTC then Congress will have to get its act together -- they might not, but if they do then the Court will have helped us enormously.
I predict this will be kicked around the executive branch and bounced in courts. Even if it stands, like you point out, future administrations can just revoke it. All the while, Congress should be taking action and codifying this.
The US Constitution + amendments delineates the powers of the branches. Is the situation you describe possibly a window in time when executive branch constitutional overreach has not been yet challenged?
[ edit : great explanations below -> sincere thanks ]
Some have argued that it's unconstitutional for congress to give away its power (even conditionally) in this way, but AFAIK that's a rather fringe legal theory. Certainly the FTC has existed for over 100 years at this point, so there's been plenty of time to challenge it.
The court recently found (in W. Virginia vs. EPA) that Congress cannot delegate power in "major questions". This rule might not be a "major question", but given the vagueness of the statutory foundation of the FTC, it's possible that all of the FTC's work is on thin ice. The Court would likely not rule the whole FTC and its past regulations unconstitutional, but it might start looking askance at regulations that seem remotely like major questions.
Is this rule a "major question"? I don't know, but I'm inclined to think "no".
That's the duty of the legislature? To make more rules?
They're not going to be able to claim that a SWE is now the VP in charge of changing lightbulbs and is now a policy-making position. There is a whole lot of text in the rule about what a "policy making position" is, and I'm certain that there is a considerable amount of legal and accounting history behind that SEC Rule which will act as precedent.
If you are flipping burgers for minimum wage and your boss says they can sue you if you leave for a competitor, are you willing to chance it?
[0]: https://www.cbsnews.com/news/noncompete-agreement-feds-sue-3...
Polls show that the vast majority of people are unhappy with Congress, and yet they get re-elected at very high rates. There’s no real reason to suspect that their job performance had anything to do with getting elected anymore.
They could very easily just fail to regulate everything that actually needs it. The alternative to the FTC isn’t Congress doing the regulation, it’s no regulation at all.
Perhaps I’m overly pessimistic but I think we’ve gotten to a point where gerrymandering has just broken Congress irreparably by divorcing their job security from their effectiveness. I hope I’m wrong and you’re right.
[0]: https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
You can see the public history here: https://www.regulations.gov/docket/FTC-2023-0007/document
https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete-rule...
It's not surprising after thinking about it for a minute, but it did startle me to read that the FTC measures innovation by the number of patents issued.
> In addition, the final rule is expected to help drive innovation, leading to an estimated average increase of 17,000 to 29,000 more patents each year for the next 10 years under the final rule.
I've always thought of that as representing a stifling of innovation.
The short lifetime of patents and the requirement that you publish detailed information about the invention significantly mitigates this. If they were measuring innovation by the number of copyrights filed, then I might agree with you.
For a lot of industries 20 years is an awfully long time to the point of complete irrelevance - and that "detailed information" is often vague enough to be unusable. Combine that with an overly-broad range of patent-able things and an overworked USPTO granting clearly invalid patents, and in practice (at least in the tech/software world) it's doing more harm than good.
Patents are no longer about protecting R&D investments. They have become more about patenting the vaguest concepts possible, in the hope of making a profit when someone else does an actual invention which somehow stumbles into your patents' wording.
There are some industries where due to slow-moving markets the 20 year patent period is still sensible, but for most sectors we would be better off with a 5 or 10 year patent period to account for the increased speed of innovation.
Further, most patents may contain key details, but they also intentionally contain as much broad information as to create a massive exclusionary zone, not to mention burying any legitimately useful information.
20 years is not short! 20 years might be appropriate for capital-intensive innovations (e.g., in pharma), but definitely not for industries where innovations are not typically capital-intensive. E.g., 20 years for cryptography and software patents is a disaster.
not if patents become a weapon against actual innovation - which it has devolved into being today.
Far from being made to progress science and the arts, patents have become a method for which large corporations can add moats to competition. Things like codecs for video/audio, which are purely mathematical expressions, have been patented. Genes and molecules, even tho they might occur naturally, can be patented (a very tenuous form of invention - it's discovered, even if not naturally occurring!).
And not to mention design patents.
I say the entire patent system needs to be abolished, or at least, made such that only applicable to physical mechanisms, and not software, nor biological systems.
Most of the purported benefits of patents seem based on theories that most people don’t understand. We all take some received knowledge about their supposed operation, and usually proponents of patents know nothing about how powerful innovation in open source and other patent-free spaces can be.
However, it's true that this property - of being a valid measure, but interventions to change it having the opposite effect on the inferred variable - is a very unfortunate one in a metric.
https://www.stlouisfed.org/open-vault/2021/june/how-to-measu....
Insane to me that they use this as a measure of innovation, when almost by definition it is the antithesis of innovation.
Sure, for any individual‘s fitness or a company’s “innovativeness” they are useless, but in aggregate they can be revealing.
Sadly, over my long career as a tech startup entrepreneur, my experience has been that your assumption is correct the vast majority of the time. Now when I teach or mentor young tech entrepreneurs I'm often explaining why they probably don't want to prioritize filing patents as part of their startup strategy. While there are certain exceptions, especially in pharma, biotech, materials science or medical fields, the years it takes for a patent to become enforceable and then the upfront cost + further years required to actually get a judgement, make patents largely ineffective in most startup contexts. There's also substantial uncertainty as to whether a startup can get the patent granted at all. After that, there's the challenge of getting it granted in a form which remains defensible and can't be easily worked around. Many people don't realize patent examiners can refuse to grant a patent unless the applicant narrows the claims.
Conversely, as a tech startup these days you do need to worry about patents potentially being used against you. The majority of tech patent cases are giant vs giant fighting over turf, a large incumbent trying to kneecap an emerging startup competitor (usually filing suit to make the startup unattractive to investors for a year and never intending to actually go to court) or patent troll vs everyone. Personally, I had both a giant trying to stop my startup's Series A funding and several patent trolls. Despite having no actual merit, the giant's suit did freeze our Series A and we nearly died. After seven months we'd demonstrated we could survive without a Series A so they dropped the suit (of course) but by then they'd cost us more than half our cash in just defending an obviously sham claim. As one investor told me, "Yes, it's clearly a bullshit claim but it will still cost serious money and a lot of founder attention over the next 18 months to get it thrown out and that, unfortunately, tips this deal over our risk threshold." And responding to the constant patent trolls just burns up startup founder attention and scarce cash in nuisance legal fees.
Despite the old-school trope of "garage inventor patents invention, makes fortune", frankly, from the perspective of fostering typical tech startups, you'd probably prefer a world where there were no patents outside of pharma, medical, bio, etc.
But as for the usefulness of patents to startups, at least with material-science-y hardware, I've heard possession of a defensive patent portfolio described as "table stakes" for existence, with enforceability et al being secondary.
It was interesting watching patents and unicorn dreams shape VR. Instead of years of commercial ferment exploring low-hanging niches, we wait for monoliths to eventually create maximally-hard mass-market consumer tech, and will then backfill easier niches, eventually. An industrial policy optimized for pharma, yielding pharma-shaped industries.
When I worked at FAANG you had a whole class of PE engineer who literally couldn’t build anything to save their lives. But they would constantly file patents with a frenzy like IT guys rack up certifications. Of course when the patent office gets an application from $FAANG they approve it.
And people who aren’t in the know just see patent on the resume and keep hiring these people thinking they are the next Elon Musk or something, unfortunately.
https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete-rule...
This would be a game changer. My experience with garden leaves was that the base salary remained but since the bonus and benefits were gone, the total comp was severely affected
> Furthermore, where a worker does not meet a condition to earn a particular aspect of their expected compensation, like a prerequisite for a bonus, the Commission would still consider the arrangement “garden leave” that is not a non-compete clause under this final rule even if the employer did not pay the bonus or other expected compensation
I think TC is not included, will still get a base, but benefits seems to be included
I'm interested to see how this hits finance firms – I know people who were forced to take a year off between jobs (although they were compensated the whole time). Always thought that would be a pretty sweet deal.
Senior executives cannot enter into new non-competes though.
I've been surprised I haven't seen this mentioned on social media or in the news. Are my friends wrong, or are people celebrating because this is just a step in the right direction even if it may not do anything yet?
Edit: it was a dig to the pro-competition façade some pro-business people put forward.
Should be the motto of every government in the world.
I seriously can't understand how anyone could be opposed to this. Laws that help people and protect them from people who have power of them are... good. That's what laws are for.
Given in tech industry / FANG, most people earn above the $151,164 I wonder how they define "policy-making positions" ?
As I read the above sentence I understand that this is a binary and and not an either you earn that much or are in policy making positions?
That plus tax subsidies for third-party insurance and we ended up in the current mess.
More importantly, and especially if the Chevron doctrine falls, I don't see how the Congress can delegate so much power, so ambiguously, to the FTC. It seems like a "major questions" issue, especially if the FTC then uses this to regulate practices in a way that amounts to usurping Congress's power. For example, imagine that the FTC declared walled gardens an unfair practice. Or suppose the FTC set a maximum transaction fee (think of Apple here). Such examples would have such tremendous impact as to arguably require legislation rather than bureaucratic fiat.
There has to be a better way. Perhaps the best way would be for Congress to every term consider banning recent innovations in business practices that are "unfair" -- to do it before the businesses using those new practices can use them to gain so much power that Congress might have a hard time banning those practices later.
(how bad? I don't know.)
Some of those non-competes were ridiculous with their "in perpetuity throughout the ends of the Universe" type wordplay, I'm surprised governments haven't been more vigilant on things like the stifling of entrepreneurial mobility, since it only helps their economies in the long run to do so.
Make it possible to disrupt, design economies for entrepreneurs as much as for corporations, and reap the benefits IMO. Let those big evil uglies get disrupted if they can't stay relevant or retain top talent.
https://natlawreview.com/article/state-law-restrictive-coven...
I wonder how many companies will start offering "consulting" over brunch on a saturday to their competitors employees?
Sure, NDA's still apply, but have fun proving that if it's all verbal over brunch...
"The Commission declines to extend the reach of the final rule to restraints on concurrent employment. Although several commenters raised this issue, the evidentiary record before the Commission at this time principally relates to post-employment restraints, not concurrent employment restraints. The fact that the Commission is not covering concurrent-employment restraints in this final rule does not represent a finding or determination as to whether these terms are beneficial or harmful to competition. The Commission relatedly clarifies that fixed-duration employment contracts, i.e., contracts between employers and workers whereby a worker agrees to remain employed with an employer for a fixed term and the employer agrees to employ the worker for that period, are not non-compete clauses under the final rule because they do not restrain post-employment conduct."
Isn’t it premature to get excited before the proverbial ink is dry?
I’m very much in favor of a total ban of noncompete agreements.
That said, it seems like all the parties that stand to benefit from them will fight tooth and nail to see this doesn’t come to pass.
Thoughts?
Use gray areas in the law to do things that it was obviously not intended for, then advertise how you did the thing, and then when it inevitably gets shut down because its not legal you blame the other side for killing it.
He is just playing with voters.
0. Get hired by any MAANG or tech company of sufficient size outside of California.
1. Watch as the employment agreement is marked on the edges or in the metadata as being specifically tailored to that state with different protections and obligations than employment agreements signed by other workers doing the same job in different states.
2. Negotiate on onerous terms that are harmful to your interests.
I don't know if this is more of an "executive order" wish because if the FTC had the power, it probably would've done so already.
I have no idea how much every server I go to is making. How do I know if it's good or bad? How do I know if they have any benefits? Especially now that everyone wants a fucking tip. I buy some ice cream with my kids and I'm supposed to tip 20% to someone for scooping my ice cream? I have no idea if the server is making $15/hour or $4/hour to determine if the tip is part of their pay or pure bonus etc.
It's baffling you blame the consumer. Employers are the ones that don't want to pay what their employee is worth.
Honestly the entire country is broken because of simple issues of non-guaranteed healthcare and non-guaranteed time off etc. If basic human rights were guaranteed we wouldn't have to play this constant game of figuring out what to pay people at a minimum.
Why economists are so critical of non-competes - https://www.nominalnews.com/p/to-compete-or-non-compete
> Under the final rule, existing noncompetes for senior executives can remain in force. Employers, however, are prohibited from entering into or enforcing new noncompetes with senior executives. The final rule defines senior executives as workers earning more than $151,164 annually and who are in policy-making positions.
> The final rule will become effective 120 days after publication in the Federal Register.
That's not to say that patents can't be abused—they certainly can—but it can give a smaller person leverage.
For example, I could see this leading to overreaching non-solicitation agreements, where you can't approach "any person/company ever added to our CRM" (for a period of time), thereby effectively ending any chance of you have of building or working for a competitor.
> With respect to garden leave agreements, as noted previously, commenters used the term “garden leave” to refer to a wide variety of agreements. The Commission declines to opine on how the definition of non-compete clause in § 910.1 would apply in every potential factual scenario. However, the Commission notes that an agreement whereby the worker is still employed and receiving the same total annual compensation and benefits on a pro rata basis would not be a non-compete clause under the definition, because such an agreement is not a post-employment restriction. Instead, the worker continues to be employed, even though the worker’s job duties or access to colleagues or the workplace may be significantly or entirely curtailed. Furthermore, where a worker does not meet a condition to earn a particular aspect of their expected compensation, like a prerequisite for a bonus, the Commission would still consider the arrangement “garden leave” that is not a non-compete clause under this final rule even if the employer did not pay the bonus or other expected compensation. Similarly, a severance agreement that imposes no restrictions on where the worker may work following the employment associated with the severance agreement is not a non-compete clause under § 910.1, because it does not impose a post-employment restriction.
If this survives the Supreme Court, wouldn't a company would have to put in your employment contract that you/they must give x months notice to end employment if they wanted to restrict you? Otherwise you could give one days notice and they wouldn't be able to put you on gardening leave.
I have no idea why the recruiter was willing to put this in writing, and thankfully, I was able to find other work instead.
I know it's not a non-compete, but there are other ways that companies can illegally form cartels to suppress labor.
You passed on a juicy class action lawsuit.
If a company wants to pay someone not to work for a year, they're free to do that whenever they want. Maybe without noncompetes, they'll have to pay more to make it worth it for the guy being paid to sit around!
EDIT: Er, the FTC explicitly does not comment on garden leave:
> With respect to garden leave agreements, as noted previously, commenters used the term “garden leave” to refer to a wide variety of agreements. The Commission declines to opine on how the definition of non-compete clause in § 910.1 would apply in every potential factual scenario. However, the Commission notes that an agreement whereby the worker is still employed and receiving the same total annual compensation and benefits on a pro rata basis would not be a non-compete clause under the definition,350 because such an agreement is not a post-employment restriction. Instead, the worker continues to be employed, even though the worker’s job duties or access to colleagues or the workplace may be significantly or entirely curtailed. Furthermore, where a worker does not meet a condition to earn a particular aspect of their expected compensation, like a prerequisite for a bonus, the Commission would still consider the arrangement “garden leave” that is not a non-compete clause under this final rule even if the employer did not pay the bonus or other expected compensation. Similarly, a severance agreement that imposes no restrictions on where the worker may work following the employment associated with the severance agreement is not a non-compete clause under § 910.1, because it does not impose a post-employment restriction.
My guess is that garden leave will be offered, but in right-to-work states there will be no way to enforce that the employee remains employed.
Yeah. Remember this when you go to vote in November. Elections matter.
The federal government can absolutely regulate both employment and contract law. (Merger agreements are contracts. The FTC was established to block bad mergers.)
Whether the FTC can do this is untested. But that’s more a Chevron issue than a federal powers one.
https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
Where in Article I Section 8 does the Constitution grant that power?
Now, that doesn't mean the Supreme Court won't come up with their own hot take, but at some point appeals and district courts are just going to say no when they send a case back.
What is the Supreme Court going to do? Federal judges can only be removed by impeachment of the House and conviction of the Senate. The Supreme Court has no power to enforce its decisions.
They will kill this faster than they killed the COVID vaccine mandate. Govt. agencies can’t make laws, even if we may agree with them (I actually do in this case). However this isn’t the role of an unelected government agency.
What I'm referring to here is Wickard v Filburn in which the Supreme Court ruled that a farmer growing food on his own land to feed to his own animals was participating in "interstate commerce" and could thus be regulated by the federal government.
This is a big part of why the federal government can control things like which plants you are allowed to grow in your home.
But when the FTC tries to regulate something like non-competes and protect average workers the corporate attorneys come out of the woodwork, "oh no, the federal government can't do that!"
This would be an example of an "unfair" practice, which mostly are about predation in the context of unequal bargaining position when litigated under "Little FTC Acts"[2]. I don't know offhand whether these similar laws have been used to achieve the same thing state-by-state, but the FTC rule meets the straight face test for sure. So, regardless of what happens next at the Federal level, this is about to become a white-hot area of litigation under state "Little FTC Acts".
[1] https://www.law.cornell.edu/uscode/text/15/57a
[2] https://litigationcommentary.org/2021/06/15/a-fresh-look-at-...
So, yeah, seems like at least those non-competes impacts interstate commerce.
This Supreme Court could be friendly to invalidating that expansive interpretation though
so, big mismatch from the executive branch / agencies with the judicial branch which could completely warp our relationship with the Federal Government and what we find familiar in our way of life
But I dont think its as simple as saying “contract law is part of state law”
I say contingent because the history of the Supreme Court is far from a deductive process of pure interpretation.
I recognize the utility of the Supreme Court while dismissing any grandiose claims of objective morality or obvious legality. It is a body of people after all.
it seems like thats a mixture of the SEC and IRS
https://www.uschamber.com/finance/antitrust/chamber-comments...
>The Chamber and its membership are strongly opposed to the Proposed Rule. It would categorically ban nearly all noncompete agreements—regardless of individual circumstances, such as a worker’s skill, job responsibilities, access to competitively sensitive and proprietary information, bargaining power, or compensation—and require that organizations rescind all existing agreements and provide notice to affected workers of such rescission. Such a proposal fails to recognize that noncompete agreements can serve vital procompetitive business and individual interests—such as protecting investments in research and development, promoting workforce training, and reducing free-riding—that cannot be adequately protected through other mechanisms such as trade-secret suits or nondisclosure agreements. For centuries, courts have recognized the procompetitive benefits of noncompete agreements and balanced those benefits against any negative costs imposed by particular noncompete agreements. As perhaps acknowledged by the Commission’s request for comments on narrower alternatives, the Commission’s categorical ban would sweep in millions of noncompete agreements that pose no harm to competition, and in fact benefit the U.S. business community, economy, workers, and consumers.
https://www.uschamber.com/finance/antitrust/u-s-chamber-to-s...
>The Chamber will sue the FTC to block this unnecessary and unlawful rule and put other agencies on notice that such overreach will not go unchecked.
It may be aimed at prodding the Congress into action.
Without anti compete stealing your competitors staff becomes a valid business strategy. Buy up the competitions best people and cripple them.
This favors those with the most capital not the least.
Wouldn't that mean they are accurately identifying ego-driven candidates that aren't actually engineers? :P
This seems written to stop even VPs being covered.
Some places if you need someone to do specialized thing X you can just walk down the street. Most places you'll need to find someone willing to move and and take a big hit on his career options. So that deep bench of skilled labor and business resources is a big deal.
A good example of disastrous 2nd order effects.
Unelected technocrats legislating by decree is the purview of the Supreme Court not the FTC, so sayeth the majority of current Supreme Court justices. I imagine a bunch of stuff is about to break since elected officials cannot pass jack shit in this hyper-partisan era.
That's literally their job.
The same thing happened with Roe; it is not the job of the Supreme Court to enact public policy. That is for the legislature to do. If you talk to anyone in law, they will tell you that, regardless of their personal opinion on abortion, Roe is perceived as one of the worst court rulings ever because it was specifically designed to “legislate through the court”. Here we are in the same position again, with a non-legislative body enacting public policy; we don’t learn.
"Under this Act, as amended, the Commission is empowered, among other things, to (a) prevent unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce; (b) seek monetary redress and other relief for conduct injurious to consumers; (c) prescribe rules defining with specificity acts or practices that are unfair or deceptive, and establishing requirements designed to prevent such acts or practices; (d) gather and compile information and conduct investigations relating to the organization, business, practices, and management of entities engaged in commerce; and (e) make reports and legislative recommendations to Congress and the public."
Noncompete acts are an unfair method of competition (see (a)), which Congress granted the FTC the power to define and restrict (see (c)). It is, quite literally, their job.
Sure it does. US Marshals are the muscle of the court system. They enforce federal court orders when necessary.
The reason those geographical clauses are in those contracts is because many states have ruled that non-competes are illegal unless they are limited in some ways to be "reasonable", and one common way states courts measure this is by ensuring that they are limited to something that might be a reasonable 'business area' that the company competes in. Corporate lawyers typically write in the exact radius that state courts have historically enforced into their non-competes to avoid them being disqualified for being too broad.
"Interstate commerce" on the other hand, just means any sort of business activity that crosses state lines. Basically every business engages in interstate commerce, just because commerce requires many interstate activities, like using the internet, or accepting electronic payments, or ordering supplies made in a different state.
I’m just saying that non-competes like this should be regulated under Federal authority because they explicitly cover geographic areas that include multiple states. That’s in addition to the impacts on “interstate commerce” proper (which as you said is basically all commerce).
Said another way: I find the argument that non-competes should be allowed or disallowed under the authority of only state laws to be lacking. If a contract in state A dictates what you can do in state B, it’s an interstate issue and Federal law could (should?) be involved.
And regardless, federal power to regulate commerce hinges on actual interstate commerce taking place. A contract between two entities in one state, under the laws of that one state, that merely mentions another state, isn't interstate commerce.
The Commerce Clause, when interpreted expansively — as federal courts have largely done. (We'll see what happens with the 6-3 conservative majority of this SCOTUS incarnation.)
1. Whether Congress can ban noncompetes nationwide through its ability to regulate interstate commerce.
2. Whether Congress can say "so-and-so can make any laws he wants about x".
3. Whether this is in scope of the FTC's mission of preventing unfair trade practices.
To me, #1 is a clear no for intrastate agreements, but under Wickard it is constitutional.
#2 is yes under Chevron.
#3 seems an obvious yes.
The only question would be if SCOTUS decides now is the time to correct what it sees as prior incorrect decisions.
The court could still decide that this rule is a "major powers question" and so belongs to Congress. This would allow the court to not have to reach any question of whether the FTC has broad powers, whether the act that created the FTC is constitutional, or whether Wickard was correctly decided. Therefore it seems more likely that the court would do that -again, if it wanted to reverse the FTC here- than anything else.
Can you imagine if the court ruled the FTC to be unconstitutionally created? They wouldn't risk that chaos.
I'm a huge fan but nobody's perfect. Two parties were not only inevitable but work unbelievably well.
I'm not American, and I really don't want to inflame the political passions of either side, but take the US 2020 election, for example. I remember reading an article comparing various polling results on policy points and candidate popularity to the election outcome.
The polling results suggested that people didn't want Trump again, but liked many of his policies, and didn't want a far-left candidate either. Through votes for president, governors, senators, etc, they got exactly what the polls said they wanted.
Using the two-party system, over a hundred million US voters were able to send a very clear and nuanced message to the political system. How's that for a solution to a distributed co-ordination problem?
It's also career limiting to be the person that sued their employer. I didn't have any monetary damages, as I was able to find alternatives.
The "class actions never make money for the plaintiffs" refrain is 99.8% true. The people who get a postcard mailer about their eligibility usually get shit. The 0.2% outlier are the people who put themselves at risk by providing the testimony that wins the case, and they're rewarded for it. And the blood-sucking lawyers of course.
For me, the full cost of my current employer’s health plan is about $1800/month, and a comparable plan from the healthcare exchange is $2200-3000, depending on the plan. So if I were to lose my job, it’d be significantly cheaper for me to use COBRA than get a plan from the exchange.
(These numbers are typical of finance industry compensation and non-compete terms.)
> In finance
I think everyone should make 2-3x the poverty level income (we can debate exact numbers), and everything after that is bonus. So long as the company pays a bonus most years it means in a bad year you have enough to live on and don't need to find a new job, while in a good year you have a nice bonus to buy nice toys.
but yes, not at all relevant
its hard for me to understand why people get the agency acronyms mixed up and interchanged. I can sort of see it, but I’ve just never seen people be so confidently wrong outside of perhaps the eastern medicine crowd.
It takes less resources to remedy a failed over bridge. You’d have to have a basket of measurement like how we measure CPI - current approach is lazy.
The house takes just as long to build, but it's sturdier, longer lasting, better insulated, etc?
I am not saying it’s easy, but economics is full of complex measurements, financial derivatives, and god knows what. Maybe they should spend some effort measuring the real world.
It is not "best for people's freedom" to have that restriction; it benefits some people (those who remain employed) and worse for others (those who are laid off or cannot get a job). And it's good for companies that make tools to automate jobs away (we've seen more fast food kiosks recently).
But the big picture point I was making is that it's silly to wave the flag of economic freedom if you don't actually embrace that concept wholeheartedly (which I am assuming she does not).
There is a net economic loss - externalities imposed on society - to people working at jobs where their basic needs aren’t being met. That comes in the cost of mental and physical health issues of the worker as well as their family through their inability to properly care for their children; which is a humanitarian issue but an economic one as well because those children don’t reach their full potential. Police, jails and health services all have this burden fall on them, and we all experience a lower quality of life as a result.
It's less "end of at-will" and more "if you want effective non-competes, it's going to cost you".
I think you're right that negotiated gardening leave will happen but I can also see companies baking in the gardening leave at the start of employment (so no longer at will) as being cheaper.
Those are illegal in at-will states.
> people that might have once moved to California for its laws will no longer do so
Which is a huge demographic right? After all, most people don't come to California for its incredible beaches, paychecks, food, diversity, entertainment, etc. it's our wonderful laws that attract everyone, right?
> Which is a huge demographic right? After all, most people don't come to California for its incredible beaches, paychecks, food, diversity, entertainment, etc. it's our wonderful laws that attract everyone, right?
Yes, that's why I expressed uncertainty on how bad this would be for California.
Did you not say in your opener:
> It is bad for a state
I should have appended the other statement with /s
That is to say, people don't typically move to California because they love the legal system, it's typically for other reasons like our weather, economy (jobs), diversity, schools (difficult to find hard data, but just search for it and see what things you see listed). Even in the case where someone does base their moving decision on a state's stance on entrepreneurial mobility, California being many years ahead of this FTC decision would only make it a better candidate, not worse.
Others passing the same measures years later does not make California seem "bad" in comparison. It would signal that they're just ahead of the curve on the issue, so I think your take is flawed.
If the invention takes 3 weeks and $0, yeah, 20 years is a long time.
…then the patent can be invalidated on the basis that it is obvious.
If the invention is commercially valuable, then invalidating it (or just pretending it doesn’t exist until you get sued, then invalidating it) can make more sense than licensing it.
A related issue is that there are many, many patents that most people (e.g., competitors) mostly ignore, because everyone, including the patent owner, knows that they would be invalidated if challenged.
Clicking through to the website and seeing the kind of articles on there makes it pretty obvious that's not the case though, even ignoring the .com domain.
> The vote on the final rule, which fell along party lines, with three Democratic commissioners voting in favor and the agency’s two Republicans voting against
https://www.forbes.com/sites/mariagraciasantillanalinares/20...
Washington (Democrat led), I think, most recently passed a non compete ban for those under a certain salary, but I cannot think of any Republican led states that have advanced such legislation, or espoused views that they want to.
It falls in line with similar worker friendly legislation passed by Democrat led states such as longer family leave, paid sick and family leave, higher unemployment benefits, higher minimum wages and minimum salaries for exempt workers, eliminating non tipped minimum wages, and publishing of salary ranges on job listings.
Edit to respond to below:
Is it partisan in California? If anything, I would have thought the California non compete ban is the most un-partisan issue since it has been in place since 1872, so neither of today's parties would be credited with it.
This is an unfortunately common response that often misses the point: U.S. government agencies do indeed have the power to make decisions with the force of law. Rule-making is a valid authority (subject to legal review of course)
Perhaps the courts will have to step in clarify? But this won't solve the administrative issue. If agencies don't have "agency" to do their jobs well, that would be ironic.[1] Perhaps Congress will be motivated to write better laws?[2]
[1] I'm deeply suspicious of efforts to undermine agencies under the cover of "only Congress makes law"... I suspect is it often a guise of undermining the laws one party does not like. Or, sometimes, even as an effort to undermine the idea of regulation at all. The latter point is hardly hidden -- it is central to a lot of right-leaning rhetoric which seems to boil down to "regulation bad, freedom good". This level of reasoning would have Milton Friedman rolling in his grave, as some regulation _provably_ helps reduce market failures. (And even center-left people typically want markets to work well.) But I digress.
[2] Hah. The idea that we would give Congresspeople and their staff even more responsibility to specify laws _without_ an associated increase in their competence for those areas where the law applies strikes me as foolhardy.
There are (of course) valid powers available to agencies. The question is what powers are valid.
Beware the dark arts of rhetoric. I’m familiar with spotting this one because my constitutional law professor used it often. He helped us to see right through it.
Logic and argumentation should win, not words designed to scare or muddle.
Intellectually honest comments reveal their fundamental guiding moral and political philosophies, rather than painting a one sided picture.
Edits done as of 6:30 pm eastern time.
Just like Judges.
The idea that courts are the only delegates of the elected representatives of the people who are allowed to figure out the nuances of how to carry out the democratically legislated responsibilities of government is a bit of a brainworm that has infected US politics and makes the Supreme Court a little too important.
My view is that as long as there’s genuine consent, two parties agree to something, no one is coerced, both are of sound mind, two human beings should be able to enter into any contract you can imagine. It doesn’t matter if that’s Gay Marriage or a firearms transaction.
The role of government should only be to ensure that that both parties engaged fairly. The minute you want to start using the government to ban one thing or another based on some moral imperative, is the minute you stopped respecting the autonomy of other people and decided to force your morality on another through collective force.
The burden of proof is on the Government to prove that Congress explicitly intended the agency to regulate this part of contract law. Like I said before, I personally support banning non-competes. But it has to be done legally. It has to be done within the constraints of a system of laws.
There was nothing to enforce as the court didn't impose any obligations on Jackson.
The obligations imposed by the ruling within Worcester v. Georgia was that states (specifically Georgia) could not enact and enforce regulations on Reservations and Native American land because of pre-existing treaties. It was never claimed that the quote is about what decisions were made with regards to Jackson; it was about what decisions were made for Georgia, and that Jackson had no intent to enforce them.
Jackson was very much complacent to Georgia's continued intent to regulate, and later remove, Native Americans from their designated land.
Also, the point counts even if Apple just patented enough to block comparable phones.
The point: For the smartphone market, 20 years would be a very long effective time for any foundational or gatekeeping patents.
that’s literally every patentable invention ever, though.
Remington didn’t invent the hunting rifle… they didn’t even invent the first self-loading or lever action rifle, probably.
“removing the annoyances and downsides that make a previous approach infeasible or impractical” is more charitably described as “a useful innovation that advances the field”.
Now, the problem is that a lot of patents are issued for things that someone else already has done, so the recipient of the patent isn't actually advancing the state of the art. But on the face of it, "removing the annoyances and downsides that make a previous approach infeasible or impractical" is literally what patents are supposed to be granted for.
Instead, they delegate powers to agencies that can make rules within some tight purview and pursuant to some defined purpose, and if they step out of line Congress is completely within their power to legislate their preferred stance into law.
Congress is very capable of legislating about something that's relevant to their interests: look how fast the TikTok ban was passed.
That is one theory; another is that they don't legislate because they have no need to -- because the bureaucracy handles everything.
NY Governor Hochul vetoed it because she is a hack politician and yielded to Wall Street pressure. Politicians with a spine (or constitution, if you prefer) are in short supply.
https://apnews.com/article/noncompete-agreement-bill-veto-ne...
> But in recent months, the legislation had come under fierce attack by Wall Street and top business groups in New York. They argued the agreements are necessary to protect investment strategies and keep highly-paid workers from leaving their companies with prized inside information and working for an industry rival.
At which level(s), or do you mean voters? Voter sentiment has essentially no bearing on public policy, and it was even proven with data in a Princeton study confirming what we already knew. [0]
If I might quote Gore Vidal: There is only one party in the United States, the Property Party … and it has two right wings: Republican and Democrat. Republicans are a bit stupider, more rigid, more doctrinaire in their laissez-faire capitalism than the Democrats, who are cuter, prettier, a bit more corrupt — until recently … and more willing than the Republicans to make small adjustments when the poor, the black, the anti-imperialists get out of hand. But, essentially, there is no difference between the two parties.
Partisanship tribalism is a divide-and-conquer gambit that has been largely successful in keeping Americans fighting each other counterproductively and voting against their own interests.
0. https://www.cambridge.org/core/journals/perspectives-on-poli...
Its a harmful practice across the board.
[0]: https://www.cbsnews.com/news/noncompete-agreement-feds-sue-3...
[1] https://thecounter.org/biden-targeting-non-compete-agreement...
Although, someone in this type of a role can often get away with ignoring noncompetes as long as they're smart about how they exit.
Simply put though, they shouldn't have to.
so that's the viewpoint in which patents may be "the antithesis to innovation". i won't argue which one's correct, just providing it here since you requested.
Software arguably is not suited for a patent system, but patents have worked well for centuries.
This is exactly the claim I'm taking issue with. The OP implied that the legal definition of innovation was "patents filed" and implied that this is somehow meaningful, and I'm saying that the absence of patents is not evidence of a lack of innovation.
If a person working can't afford basic expenses they're slightly better off than not working, locally, but at a policy level neither outcome is acceptable---and part of the solution is to ensure that there is a floor because, surprise, employers will pay powerless people less if they are allowed to do so. It is a tradeoff between "making some jobs uneconomical" versus "putting a floor on people's ability to be exploited", and the obvious next step of logic is to look for, given that that floor is in place, what other parts of the economy will transform around it? Well: some jobs are removed (bad maybe) but other jobs will pay more than they would (good maybe), plus some prices for things will go up (bad) but they go up in a way that allows people to make non-exploitative wages (good), which means that the much richer and greater-agency employers may have to share more profits with labor (good) which means that some business ventures might not be profitable anymore (maybe bad) but then they'll have to innovate to find more profitable ones (good)...
etc.
Pretending like there is one argument and ignoring the rest of the picture is ignorant and a waste of everyone's time.
In finance you make more money, but work more hours and have more stress per hour typically. Still probably a good deal, but it's not a Pareto efficient deal.
How do you square that up though with the power differential in employer / employee relations? The employee has to work or be destitute. That gives employers a tremendous amount of power in any contract negotiation.
Coercion doesn't have to be a gun to your head. Every person in the workforce is under a pretty coercive force which is that without gainful employment you are going to go without housing, medicine, transportation, etc. Without any collusion on the part of the employers, the market works to select those employers who can create the contract conditions most favorable to profit production. We shouldn't be surprised that "favorable to profit production" and "disadvantaging the worker" are often closely aligned, every company would like to pay as little as possible for their input and get as much profit as possible out of their outputs. Labor, or Human Resource, as corporations like to call it, is an input and so there's a tremendous systemic pressure to craft contracts in the way that will get the maximum profit out of every employee.
Sure the employee didn't have to sign that unfair employment contract, they could have elected to sign one of hundreds of unfair employment contracts. The fact that they have a large variety of unfair contracts to select from doesn't on its own increase the fairness of the contract. The "collective force" of "you need money to operate in society" means that all workers are coerced to sign "the best deal they can get" which doesn't mean it's going to be a good deal or a fair deal for the worker, just the best that the market has.
Many individuals care about society as a useful construct -- a construct that is not easily calculable from individual utilities. [1] This would suggest that even utilitarians should care about society -- unless they think they get to define what matters to their precious individuals. [2]
[1] Sure, one can say society is _causally_ derived from individual actions, but... (1) the derivation of what society looks like is not predictable enough for the time scales we care about; (2) individuals are influenced by society, as a matter of perception
[2] If I may attempt some satire, I wouldn't at all be surprised if some utilitarians are a sort of "mini-autocrat" at heart -- in the sense they get to decide what counts in every individual's utility function. e.g. "I value you, individuals!, yes I do!... but I get to tell you what really matters for your happiness! and after I do that I decree that the summation operator is how we put it all together!"
Let me refer you to George Carlin's approach: https://youtu.be/xIraCchPDhk
I worked at a hedge fund in NYC. I gave my 2 week notice. HR said that the employee contract that I signed when I joined stated a minimum of a 4 month notice period. This would have completely killed my next job which I already accepted.
I should have known this was in the employee agreement, but I didn't know they they would threaten lawyers on me if I didn't stay 3 months.
Executive agencies aren't a "fourth branch of government with little oversight", they're article II section 2 'departments' of the executive, established by law, and controlled by the president and appointed officers, with as much oversight as congress legislates to require, plus accountability to the courts for remaining within the bounds of their legal and constitutional authority.
Personally, I feel Congress giving its authority to the executive branch breaks constitutional separation of powers period. Could Congress grant the President autocratic authority? SCOTUS says it has to give sufficient standards to delegate authority and inconsistently says yes or no to different attempts, but really what congressional standard did the FTC use to arrive at this (admittedly good) rule?
As it happens, I am very against noncompetes and I very much like this action by the FTC. You should have read more closely and shouldn't have assumed the opposite.
> Whether the net benefit is good or bad is largely a subjective matter of political opinion.
Without knowing the intention of the author above, when I see the phrase "subjective matter of political opinion", it makes me wonder if it serves as a "semantic stop sign" or "thought-terminating cliché"[2].
WRT net benefits... it is one thing to have differing predictions about what will happen and quite another to assess each possible scenario.
I recognize differences of opinion and want a society that protects the freedoms to have them. However, to me, opinions matter much less than reasonable claims based on evidence. Luckily, when reading [1], there are many testable claims embedded in the arguments of the various justices.
For example, in the cases of an ambiguous law, who is better suited to understand the ambiguity... agency experts or judges? Which groups have better knowledge of the domain? Which have experience in engaging in sustained discussions with the industries they are regulating? Agencies have an objective advantage for both.
Here is my point: say we go through the, say, top twenty arguments and we dig into the details. I predict that most opinions one hears at the outset from the public don't survive contact with reality. Those opinions have to get tossed. What remains? Nuanced assessments of better and worse scenarios. By making these assessments more nuanced, the hope is we find workable and sensible compromises.
[1] https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
[2] https://en.wikipedia.org/wiki/Thought-terminating_cliché
One side will say with some justification that these rules make sense and are definitely a net benefit, and we should expect this to be the case because the agency is run by technocrat experts who evaluate these policy decisions for a living and do a far better job than we can expect of even the best congressional staffers.
The other side will point out that it's a very fine line between the current, mostly harmless rule-setting actions of benevolent agency experts, and an unelected deep state that can become a tool of fascist ideologues. Our freedom is dependent on safeguarding our democracy, and that means no rules that don't trace their core to laws passed by elected representatives. These people would point to the disastrous actions of the DEA and FDA, for example, which is currently waging war on ADHD patients via the artificial Adderall shortage, or Operation Choke Point (google it).
Where you fall on this debate is a subjective matter of political opinion. There are pros and cons to both sides.
"Understanding the ambiguity" is fine if we are talking about trying to figure out what was intended by the people who put the ambiguous phrases in. But the issue isn't about who can "understand" the ambiguity, it's about who's going to be making things up and giving the ambiguity as an excuse. Asking whether bureaucrats or judges are better at "understanding the ambiguity" is the wrong question--understanding something and doing it are very different things. They'd just understand that the law is supposed to be X, and give a spurious justification about it being Y instead anyway.
Your use of phrases like "thought-terminating cliche" makes you sound like a rationalist. In which case I hope you know what a quokka is. (For the uninitiated, a quokka is an animal that can't understand that someone might want to hurt it.) If someone has an agenda that is against your interests, having "better knowledge" and being "better suited to understand" and "having experience" just makes it easier for them to harm you.
This was something passed by a Democratic administration. Therefore Republicans hate it, and since 2/3 of the Supreme Court is Republican, it's likely to be struck down.
The actual reasoning comes later. Something-something-Federalist-Papers-something. I'm sure they'll have no trouble digging up some Founding Father who said something that sounds like banning this, if you squint right.
I know a great many lawyers, of both parties, who have more respect for the Supreme Court than I do. They are more informed and better educated than I am, so you should take my cynicism with a grain of salt. But in my experience, treating the Supreme Court as a partisanship machine yields extremely accurate predictions.
When this country was founded, a lot of its residents were slaves, so I'm sure Thomas and Alito will find plenty of fodder in that for their "originalist" stance denying workers rights.
This supreme court has been very down on federal powers, so it really would not be surprising if they pulled "the major questions doctrine" to ultimately kill this off.
That's my take as well. There is almost certainly no doubt that the commerce clause (under current precedents since the 30s) gives Congress the authority to make legal rules like this one. If there be doubt here then it will be about a) the ability of Congress to delegate this power with b) such a vague and all-encompassing term as "unfair" to describe the practices that the FTC may regulate, and/or c) whether this particular rule violates the "major questions" doctrine found in the recent W. Virginia vs. EPA case.
My comment two levels up was not a comprehensive assessment of the pros and cons of this policy issue. My goal was to highlight that while I recognize subjective opinions, I care about them relatively less until we fully pursue rational means of understanding.
That's the point.
On that note, Alito and Thomas had to use a pre-U.S. colonial law as their grounds to overturn Roe, so there is no limit to how far they will go to use "orignalism" to further their ideology.
It is bad for a state - at least in relative terms - if it has a good thing and suddenly every state has that good thing.
It's not bad when people are copying you, it signals that California is ahead of the curve on the issue...
I suspect this is bad for California
Moving the goalpost fallacy:
Moving the goalposts is an informal fallacy in which evidence presented in response to a specific claim is dismissed and some other evidence is demanded.
> Some of those non-competes were ridiculous with their "in perpetuity throughout the ends of the Universe" type wordplay, I'm surprised governments haven't been more vigilant on things like the stifling of entrepreneurial mobility, since it only helps their economies in the long run to do so.
> Make it possible to disrupt, design economies for entrepreneurs as much as for corporations, and reap the benefits IMO. Let those big evil uglies get disrupted if they can't stay relevant or retain top talent.
My point all along is that "is this a good thing for the FTC to do?" and "is the FTC doing this thing good for California" are separate questions. My initial comment only opined - in the negative direction - on the latter question which is why I have been perpetually confused about you arguing the former question.
If you don’t want to them to leave, then entice them to stay.
Getting rid of noncompetes puts workers and companies on more even footing, reducing the large power difference.
Ideas aren't property and they are stolen. You can steal a glance as well, but you know that has nothing to do with property either.
I also could have used the colloquialism poaching, but then I would be hearing about how people aren't big game and hunting is bad.
> Getting rid of noncompetes puts workers and companies on more even footing
We already know it doesn't have to: https://forums.appleinsider.com/discussion/185051/judge-appr...
That fine was probably minor compared to the wage suppression.
> If you don’t want to them to leave, then entice them to stay.
Poaching all the staff away from a company is illegal in CA, it's called raiding. This change will not create laws out of thin air.
You argument is that this case demonstrates there isn't any problem and that companies don't have actually have a significant power advantage? Not very convincing.
> Poaching all the staff away from a company is illegal in CA, it's called raiding. This change will not create laws out of thin air.
This is only true in the specific narrow situation where there is intent to harm the company. There is nothing wrong with the general case where you simply want to hire those workers.
The question will ultimately arise "by what authority can the FTC make such a sweeping judgement" and it would not surprise me to hear the SC rule that this is an overstep of the authority they were given by the laws creating and maintaining the FTC.
Previously, the FTC could have argued that the chevron doctrine gives them this right. However, that is almost certainly about to be completely abolished this term.
The right of contract is almost certainly going to be more important to most members of the supreme court than any other considerations. That's my 2 cents.
Otherwise, why aren't well capitalized competitors in California hiring up the best people at their competitors and crippling competition, as it were? We just don't see this happen on a large scale like this suggestions.
Now, that's my take on it at charitably. My honest opinion about it is simply: who cares. If you want people to stay, give them reasons to stay that aren't the legal equivalent of holding a gun to their head
CA has a corresponding law that prevents this. The last time I looked the FTC wasnt creating at NEW law to prevent the other side of this coin:
Rule 3: Workforce “Raids” Are Illegal in California
Technically, poaching employees is not illegal in California, but restrictions on workplace raids are mentioned in the legislation. In fact, state law prohibits companies from acting in bad faith to solicit a mass amount of employees from their competitors to intentionally hurt their business. This is called “raiding,” and when your competitor does it, you can file a tortious interference claim against them. Most of these cases require an employment contract to be successful in pursuit of damages.
FROM: https://www.flclaw.net/is-poaching-employees-illegal-califor...
[0]: that the California government anticipated and defined, to their credit
Labor is a market. It is too often ignored in favor of private equity concerns.
So does the US Supreme Court lol
More seriously I think the issue is going to be whether it's executive overreach, not whether it's good or bad for a competitive marketplace.
And how would that not be an "unfair business practice"? Vague legal terms are problematic.
Yes, I agree.
> and that means no rules that don't trace their core to laws passed by elected representatives.
I think this is too strong of a claim. Why?
We live under many rules that don’t trace back to laws elected by elected representatives. Many of our laws descend from common law which predates representative democracy.
Not to mention that there are tremendous sources of power outside one’s governmental sphere that constrain our options, such as culture, corporations, and other governments. Whether one calls these “rules” or “constraints” is sort of beside the point when you focus on a society’s ability to respond to undesirable forces. This leads to how I would restate your claim…
Perhaps a more accurate statement would be this: freedom depends on mechanisms such that the people can drive policy.
> FDA, for example, which is currently waging war on ADHD patients via the artificial Adderall shortage
Why do you choose this loaded language? This does not build credibility in my eyes. War means something, and it not that.
I don't mean to split hairs nor imply that I alone get to decide what words mean. But I do have good reasons to suggest that words matter and that we should pay attention to them.
I am saying that rational people seeking truth strive not to use phrases "waging war" in a spirit of rationally discussing an issue. The way it is used above doesn't shine light on the core issue. The phrase invites tribalism and gut reactions rather than reason.
At the very least, such a phrase (1) presumes intention; and (2) assigns blame. These are two additional claims beyond the claim of harm to people with ADHD. I think one can make a decent argument about how agencies with too much authority can cause harm without invoking the war metaphor. Invoking that metaphor makes it harder to discuss the issues that seems to be driving this (interesting) discussion. I would frame that issue broadly as: (A) To what degree do agencies have legal and rational authority to clarify ambiguous laws? (B) Given what we know about human nature and organizations, what are some possible downstream outcomes?
Again, I'm making the case that a sentence like "But people have different opinions", when offered in the sense of e.g. "and that's all we can really say about that" is a disservice to understanding. As I see it, we have much necessary work to do that has nothing to do with pointing to differences of opinion. I think we need more substantive truth-seeking. If we engage in that fully, yes, differences of opinion will remain, but they will likely be applied to more nuanced aspects of the issue. This would be a good thing. It would help us talk in clearer ways.
I hope you can see that I am not dismissing rational claims of harm. I am instead expressing concern about the rhetoric used.
If you find yourself disagreeing with me, it might help to know that (i) I generally push back against moral relativism. Also (ii) I don't assign moral worth to mere opinions. I assign moral worth to people and their well-being, not merely to any and all electrochemical fluctuations that we call thoughts and beliefs. To summarize, I respect the ability of people to have opinions, but I don't give those opinions some kind of fundamental moral weight.
Why? Many such opinions are unconnected with reality. Sometimes, they don't even make sense _for them_; i.e. for their own self-interest! Moreover, enlightened people who pay attention to their own thoughts can notice this -- it is not something I have to impose on them.
[1] https://reason.com/2024/02/26/dea-shuts-down-drug-factory-ev...
Stepping back (hopefully to clear the air), I hope you can see this: it is hard for others to tell when you are using a phrase sarcastically to criticize some other party's usage of the same phrase.
Aside: unfortunately, the use of "war" as in "war on drugs" often corresponds with armed conflict... though to my knowledge, this is not a recognized problem with amphetamine mixed salts.
Patents are always the tool of the moneyed and the lawyered, which is not the same thing as protecting R&D investment. There are exception, such as the guy who spent 12 years suing car companies over the windshield wiper, but that actually proves the rule because of time spent. It even apparently cause his marriage to break down. [1]
> Kearns sought $395 million in damages. He turned down a $30 million settlement offer in 1990 and took it to the jury, which awarded him $5.2 million; Ford agreed to pay $10.2 million rather than face another round of litigation.
Not that I don't agree with you, what makes Kearns' pursuit 'greedy'?
I’d argue the same applies to all patents; the world would be better off without them in general.
https://www.uspto.gov/sites/default/files/documents/RT2%206-...
There is no such thing as a software patent.
There is no such thing as a rubber patent.
There is no such thing as a steel patent.
There is no such thing as an electricity patent
There is only ... a patent.
So either you think "well it's not a software patent, it's a patent that covers the application of some software" is a useful point to make, or you're being pedantic for pedantry's sake. To the former, I don't think that makes a difference to someone being sued by a patent troll.
Well no system can work that way - if judges in court were overworked and making invalid judgements, then the legal system would fail no matter what kind of laws you have and no matter what police does
An overworked Supreme Court does not lead to more Supreme Court decisions.
Former USPTO patent examiner here. I'll answer why an overworked USPTO will lead to more patents at present, but I make no claims that it should be this way.
The effective default is to grant patents. Why? Because the examiner has a finite amount of time for each application and has to have some sort of justification for a rejection. Unless there are some formal problems with the patent application, "I couldn't find prior art" means that a patent will be granted. Examiners could try "official notice" to basically say that they don't think it's novel or non-obvious without providing a reference, but that's easily defeated by attorneys. Examiners must provide a clear justification for a rejection.
If the amount of time an examiner has is too low (and it's far too low), that increases the chance that no prior art will be found, and consequently increases the chance that invalid patents will be granted.
Contrast that with the Supreme Court: The Supreme Court can decline to see a case. You can't do that as an examiner. You can try to have an application transferred, but that will just give it to another overworked examiner!
Suppose an institution is overworked, it has two options - long queue or rush the job.
Courts understand their role is important, so you have a long wait, but they d0 the job properly.
Patent office, perhaps, rushes the job. Now whether they issue too many or too few patents is maybe equally bad, in my view, it’s screwed up either way.
And the wealthy and powerful use that wealth and power to influence how government functions.
Thus, the current situation.
And the maximum payout on violating a patent should be the remaining profit to end the patent.
Differences between industries then look after themselves.
This supreme court is very much on track to eliminate any authority federal agencies have that aren't explicitly written into law. Effectively destroying federal agencies ability to make rules.
Very dramatic. Really, it's a reaction to Federal Agencies — unelected governmental representatives — unilaterally making their own rules out of the gray areas.
Eliminating Chevron will trade "unelected governmental representatives" who work at Federal Agencies like the FTC with "unelected governmental representatives" who are work for Federal Agencies that are the US Courts. Progress?
This is like saying that the US President is an unelected governmental representative. The population actually votes on a Representative for the Electoral College (EC). The Representatives in the EC then vote for President and Vice President. And yes, the EC Representatives are voted for because they say they will vote for a particular candidate (and as we figured out in 2012, many states have laws penalizing EC Representatives who don't vote how they committed to).
Under current precedents all the State decriminalization of marijuana and other drugs that we've seen are all unconstitutional. It was the liberal justices + Scalia who made it so. Those State laws decriminalizing various drugs are being tolerated by the feds -- for now.
The federalism revolution and its opposite both cut both ways.
On the whole I would prefer that the court resume its federalist revolution, even though some results I wouldn't like.
No, that's not how that works, ironically because in the name — Electoral College — the President is, elected. Regardless by the populous or not.
Appointees are politically chosen, yes by a representative, but usually with major political leanings built into the rules they make, with little to no oversight.
War on Poverty.
War on Cancer.
America just loves war metaphors. I think you're reading too much into it.
https://www.hoover.org/research/rise-war-metaphor-public-pol...
I’m detecting an argument that “other people muddle words, so I can too”. Yikes. Can ain’t the same thing as should.
Maybe I should be more specific: The words you wrote can be easily read as a crackpot suggestion that the FDA is seeking to actively harm people with ADHD. (I write this now after having reread the source comment.)
Cancer doesn’t know we are at war with it; neither does poverty. There is no one we can kill to solve these problems. Instead, hopefully, we are seeking understanding of science and human nature so that we can reduce these problems.
Anyhow, I can’t tell if any of my main logical arguments have gotten through, which is a symptom of a bad conversation in my eyes at least. I don’t view this as a debate —- rather as a process of understanding.
The path of least resistance makes appearance once again. If we don't understand that this guides the default final state, we would argue about nothing constructive.
Interesting. Did you enjoy it? Why did you stop?
I stopped for the simple reason that the job was far too difficult, and poorly paid on top of that.
Where do you get that from?
Reversing Chevron will mean that Congress will have to work harder to get the regulations that it and the Executive want. If Congress were not disfunctional that would be a very good thing. And heck, reversing Chevron might well function to help Congress function more normally.
It would be very strange for the court to create the major questions doctrine then impanel itself as the ultimate regulator.
Jury awarded 1/6 after litigation.
Ford payed double to get rid of this nuisance.
$30 million in 1990 was fuck you money. It’s still enough to comfortably retire on for a high school aged person.
Edit: sorry about the non sequitur. Bitterly learning about inflation and fiat recently.
Not only that, but in the odd scenario where it was "kept liquid", or kept purely in cash, it'd be worth $30m in today's money, not $100k. It's not clear where the $100k figure is even coming from. Even $100k/year doesn't make sense in any context I can derive.
I guess if he lit the money all on fire, it would be worth nothing, too.
I don't think that currency exists though. The closest current example I can think of is if you're Argentinian and you bought $30m worth of Argentinian pesos in 1992 which would be worth ~$35k today. But that is due to relatively recent hyperinflation, not yearly 10% inflation, 10 years ago it would still be worth $4.3m, 15 years ago $8.8m.
You'd have to be seriously asleep at the wheel (or being strong-armed by local law enforcement, unfortunately) to keep your liquid currency parked in a hyperinflationary currency.
Even a fully-functional representative body can't write laws that are explicit enough to cover every possibility. And the U.S. Congress is far from functional.
The Court accepts that governments outsource regulation to e.g. the private developers of building codes. Similarly, we don’t benefit from a Congress mired in details over the minutae managed by many areas of the federal government.
It's anti-textualist, anti-originalist, anti-legal theory. It's a rule that the Supreme court has to invoke to achieve their objectives because they have no other avenue. The law was clear, the intent clear, and what congress desired was clear. Major questions should be solved by congress passing a revision to the law. The supreme court invoking it robs congress of their power because "we know better".
The reason it's such a bad rule is no lower court or litigant can really invoke it. It is only something the supreme court can use because it's undefined what qualifies as a "major question". Boiled down, it's "we don't like the law congress passed but we can't come up with a constitutional, textual, or historic reason why that law or it's application is invalid".
They would not use "major questions" if there were any other legal reasoning to go to.
Not really. First, any inferior court can also apply the major questions doctrine -- the SCOTUS is merely the final arbiter, but presumably in many cases either there will be no case (because the Executive will preemptively go to Congress) or the Executive will accept a lower court's decision w/o having to go all the way to the SCOTUS. Second, the doctrine is pretty clear: if the impact of a regulation is politically very controversial and its impact on the economy or liberty is quite large by comparison to more mundane regulations, then it belongs to Congress.
Quite arguably, Congress deemed the precipitating questions were not "major questions" and expressed as much by delegating to agencies.
That's a tremendous stretch because Congress can be very vague in its delegation of authority and decades later the agencies it delegated power to can interpret anything they want into that language and -because of the oft-repeated point about Congress' disfunction- the agencies can't be stopped.
> Since "major questions" has no concrete definition,
It's like obscenity: you know it when you see it. But it's simpler: if there's a controversy, there's a chance that the issue is a major powers issue, and then you have to look at whether the liberty/economic impact of the regulation is extreme enough that Congress must decide it.
But then on the other hand, Congress is dysfunctional and is incapable of legislating.
This feels like a recipe for the unelected branch (the courts) to run everything.
- Congress is allowed to delegate to the executive (agencies)
- but if an agency goes so far in beyond the original understanding of its delegation as to cause a major political controversy, then it has overstepped its mandate
For example, if Congress were to delegate to the EPA the power to ban internal combustion engines at the EPA's choice, then the EPA could absolutely do that. (Perhaps Congress couldn't if the court revisits Wickard, who knows, but if Congress could, then so could EPA). But if Congress were to pass a bill regarding clean air and decades later the EPA decides that a clean air mandate means the EPA can ban ICEs, then that would clearly be a major question (well, today it would be; maybe in another two decades it wouldn't be), the courts would not (today) allow such a regulation, and EPA would have to go ask Congress to ban ICEs or to delegate that authority to the EPA.
> This feels like a recipe for the unelected branch (the courts) to run everything.
If the courts were to decide that EPA can't ban ICEs under the Clean Air Act but that the courts can, that would be pretty insane. Perhaps before Chevron the courts sometimes did that sort of thing, but they wouldn't now if Chevron is reversed because this SCOTUS absolutely does not want that and will write an opinion that reflects that -- that much is clear. So I think this is hyperbole. Instead if Chevron is reversed, and together with W. Virginia vs. EPA, "major questions" will not be decided by the courts -- major questions would go undecided as long as Congress leaves them undecided, with the status quo preserved. That would not be a bad outcome!
Because "major political controversy" is very subjective and subject to manipulation (we had a "major political controversy" over the name of French fries in the 2002 era), the "then" part of your clause governs in most cases. That is "it has overstepped its mandate."
Congressional oversight of the executive agencies involves the two elected branches working together to govern. Delegating more power to the unelected branch is not a healthy way for a republic to operate.
Just because some people do not like the results of their delegation does not mean that Congress is similarly dissatisfied with those same results. Some parties want Congress to be dissatisfied and exercise its powers. Congress regulated a single app made by a single company this week; Congress can act when it wants to do so.
I think that's abdication.