Uber and Postmates argue that California's new "Gig" law violates the 9th and 14th Amendments, the Contracts Clause, and California's Baby Ninth Amendment

The tech companies have thrown the entire economic liberty kitchen sink at AB 5

|The Volokh Conspiracy |

A new California law makes it harder for "Gig" companies to classify certain workers as independent contractors. Uber and Postmates have now challenged the constitutionality of Assembly Bill 5. Attorneys from Gibson Dunn have thrown the entire economic liberty kitchen sink at the law. From the complaint:

AB 5 violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, the Ninth Amendment to the United States Constitution, and the Contracts Clause of Article I of the United States Constitution, as well as the Equal Protection Clause, Inalienable Rights Clause, Due Process Clause, Baby Ninth Amendment, and Contracts Clause of the California Constitution.

1. Plaintiffs bring this lawsuit to protect their constitutional rights and defend their fundamental liberty to pursue their chosen work as independent service providers and technology companies in the on-demand economy.

2. AB 5 is an irrational and unconstitutional statute designed to target and stifle workers and companies in the on-demand economy.

The first count is premised on the Equal Protection Clause. The parties argue that the law is infected by an "irrational animus."

101. AB 5 violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because it draws classifications between network companies and non-network companies without a rational basis for distinguishing between the two groups.

102. Likewise, the statute draws irrational distinctions between independent service providers and non-independent service providers that perform substantially the same work, disfavoring independent service providers relative to similarly situated nonindependent service providers. Laws unconstitutionally singling out a certain class of citizens for disfavored legal status or general hardships are rare. AB 5 is such an exceptional and invalid form of legislation.

103. No sophisticated economic analysis is required to see the pretextual nature of California's proffered explanations for AB 5's differential treatment. There is no rational distinction between network companies and many of the non-network companies granted exemptions under AB 5. The California legislators' focus on subjecting network companies to AB 5, and their willingness to grant a laundry list of non-network company exemptions in order to spare those types of companies the costs and burdens of complying with AB 5, demonstrates irrational animus against network companies in violation of their equal protection rights. This type of singling out, in connection with a rationale so weak that it undercuts the principle of non-contradiction, fails to meet even the relatively easy standard of rational basis review.

Uber and Postmates will have to distinguish this case from Williamson v. Lee Optical. Is the distinction between "network companies" and "non-network companies" who perform the same function any less rational than the distinction between optometrists and ophthalmologists who perform the same function?

But wait–Uber and Postmates argue that strict scrutiny applies! Why? Because the law would "burden, the fundamental rights of network companies and workers to pursue their chosen profession and determine when and how they earn a living." I'm not sure there is a single vote on the Supreme Court for this position. I don't think even Justice Gorsuch would review economic regulations with strict scrutiny.

Uber and Postmates also raise a claim under the Ninth Amendment:

The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. The right to work on one's own terms—as an independent service provider, rather than an employee—is one of those fundamental rights.

The Ninth Amendment has never been incorporated. It doesn't limit state action. The complaint makes no reference of the Fourteenth Amendment's Privileges or Immunities Clause, which would be the proper constitutional vehicle to raise this sort of claim.

The American Society of Journalists and Authors and the National Press Photographers Association have filed a similar case, represented by Pacific Legal Foundation. Their complaint raises different equal protection claims:

55. Granting a full exemption from AB 5 to speaking professionals who engage in marketing, graphic design, grant writing, and fine arts, but subjecting speaking professionals like Plaintiffs' members who are still photographers, photojournalists, freelance writers, and editors, to a limit of 35 content submissions per publisher per year, creates an irrational and arbitrary distinction among speaking professionals.

56. By enforcing the irrational and arbitrary distinction among speaking professionals, Defendant, acting under color of state law, irrationally and arbitrarily discriminates against Plaintiffs' members in violation of their right to equal protection of the laws.

57. Privileging marketers, graphic designers, grant writers, and fine artists by providing those speaking professions with an exemption from AB 5, while limiting still photographers, photojournalists, freelance writers, and editors to an exemption of only 35 submissions per publisher per year, is not narrowly tailored to any compelling government objective, nor is it rationally related to any legitimate government objective.

They also raise arguments premised on the First Amendment:

74. Pursuant to Cal. Labor Code § 2750.3(c)(2)(B)(ix) and (x), Defendant, acting under color of state law, limits AB 5's exemption for "professional services" as applied to speaking professionals who engage in still photography, photojournalism, freelance writing, and editing to only 35 content submissions per publisher per year. In contrast, AB 5 grants an exemption free from the 35-submission limit to speaking professionals who engage in marketing, graphic design, grant writing, and fine arts.

75. The 35-submission limit applies to Plaintiffs' members based on the content of their speech—i.e., whether they write about or photograph a topic in a manner that constitutes marketing versus a manner that constitutes journalistic reporting, or whether images are graphic design versus still photography.

76. Limiting AB 5's exemption for "professional services" as applied to speaking professionals who engage in still photography, photojournalism, freelance writing, and editing to only 35 content submissions per publisher per year, while granting an exemption free from the 35-submission limit to speaking professionals who engage in marketing, graphic design, grant writing, and fine arts is not narrowly tailored to a compelling governmental interest.

77. Under the AB 5 scheme, journalistic speech is expressly disfavored.

78. By enforcing the 35-submission limit, Defendant, acting under color of state law, unconstitutionally deprives Plaintiffs' members of their freedom of speech as protected by the First and Fourteenth Amendments to the U.S. Constitution.

PLF did not bring a claim under the 9th Amendment.

 

 

 

 

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  1. The equal protection claim must fail.
    New Orleans v. Dukes:
    “Unless a classification trammels fundamental personal rights [not economic as far as the court has been concerned since the 1930s] or is drawn upon inherently suspect distinctions such as race, religion, or alienage . . . any classifications other than these must only be rationally related to a legitimate state interest. . .States are accorded a wide latitude in the regulation of their local economies.”
    .
    Courts have gone out of their way to conjure up a rational basis even when the state doesnt raise them itself.

    1. “as the court has been concerned since the 1930s”

      Time to revisit those cases. Creations of the court can be undone.

      1. jst1, the national principle of political self-government is in the Constitution, not a creation of any court. As is a guarantee of a republican form of government for the states.

        For what reason would you even want those undone?

        1. To protected fundamental economic freedoms, the same way that fundamental non-economic freedoms are protected. The Constitution doesn’t make a difference between economic and non-economic rights; I don’t know why the court’s jurisprudence should.

          1. TwelveInch, the Constitution privileges a right of self-government ahead of economic freedoms, excepting those the Constitution itself stipulates. Madison famously explained why in Federalist 10.

            1. “TwelveInch, the Constitution privileges a right of self-government ahead of economic freedoms, excepting those the Constitution itself stipulates.”

              The constitution, as currently interpreted, privileges all sorts of freedoms ahead of self-government. There is no reason to treat economic freedom any differently.

              1. You are mistaken again. Self-government comes first. Which is why it gets the first 3 words in the Constitution, really big, for emphasis.

                1. The Preamble is completely unenforceable. Nor was it intended to be enforceable. It’s a meaningless sales pitch.

                  It’s also a lie. “We the people” did not have any say in the enactment of the Constitution. “We a few rich white elite revolutionary elites” enacted it. Black people were not asked their opinion. Neither were women, Indians, or poor or working class whites.

                  1. Dilan, Preamble or not, “We the People,” is a notably greater constitutional presence than notional, “economic freedoms.” Those are neither in the document at all, nor much recorded in the historical record of the Constitution’s creation. So folks who make that stuff up, and demand it be enforced as constitutional, while denying that enshrining self-government was a major intention, are very far afield from history. Your often-repeated remarks about constitutionalism are pretty present-minded too.

                    1. “Those are neither in the document at all, nor much recorded in the historical record of the Constitution’s creation.”

                      Not quite true.

                      No State shall … Law impairing the Obligation of Contracts,”

                      nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.

                    2. Brett, those are explicit, and acknowledged as included (by reference) in my comment several steps up. The ones in the comment you responded to I referred to as, “notional,” to distinguish them from the explicit references you quote.

                    3. No, worshipping the framers is racist and sexist, Stephen.

                      We were founded by people who wrote about we the people before going back and subjugating women, raping their slaves, and ordering the murder and theft of land from Indians.

                      I don’t have anything to do with their We the People. Unlike them, I have good values.

                    4. Also, in a common law system, whether a legal rule is included in statutory or constitutional text has very little to do with its importance. There are many important freedoms not mentioned in the Constitution, and many unimportant ones that are.

        2. Because it’s the California law that threatens self government?

          After all, it’s one group of people telling another group of people how to govern themselves, rather than each person governing themself. The CA law is the antithesis of self government, unless you take highly comedic and rare position that anyone can secede from any other polity, and so Uber et al are only bound by CA because they choose to remain bound by CA?

          If you actually favored self government you’d be opposed to this law, as it disrupts the agreement between Abby and Bob by inserting Charlene into the mix to tell Abby and Bob what they may not do. Charlene has no personal interest in what Abby and Bob do, but merely disagrees that they should be able to do it together.

        3. As always, you confuse majority rule and self-government.

    2. The newspaper limit might have a case, as it essentially forbids you from selling your product to certain classes of businesses with an arbitrarily low limit (35 items per year). It’s going to be a lot harder with pretty much any other class of restriction.

    3. No, it should succeed.

      They are irrationally handling people differently.

      But then we don’t have a justice system, but an injustice system.

  2. I hope this lawsuit becomes a poster case for why the “irrational animus” doctrine is such a bad one. Basically, it applies to laws the plaintiffs have animus against. Maybe they convince half the court to share their animus, maybe they don’t. Hate is often projected. We often regard as hateful that which we hate, and generally often project our own motives onto our victims. The reasons Catholics couldn’t be trusted with a vote is they were too intolerant. The reason black people deserved slavery is they were too savage and violent.

    Of course this legislation passes rational basis! Of course the gig economy rationally justifies special labor statuses. The fact that its opponents are using animosity jurisprudence to support their position only shows how subjective and constitutionally illegitimate animosity jurisprudence is.

    1. You’re mistaken It shows that they’re both very desperate and able to afford lots of lawyers, that is all.

      1. When plaintiffs rely on endlessly malleable concepts like “animus” that is desperate.

        1. It’s good law so far as I know only in the area of the Free Exercise Clause, so I don’t know what endlessly malleable means here unless you’re talking about Internet arguments.

          1. So all Uber has to do to win is for their board to adopt the Ferengi Rules of Acquisition as their sacred text?

            Hey, we’re just following our religious mandate!

    2. “Of course this legislation passes rational basis! ”

      Its completely irrational. Aimed at Uber, it is going to destroy free lance writing and not lead to any increase in “employment” as defined in the obsolete legislative imagination. Protection for a world that no longer exists.

      Its like a law requiring all auto manufacters to include a buggy whip and reins with the car so as to not hurt buggy whip and rein workers.

      1. Bob, free lance writing? Protected by the 1A. Free lance (closely managed) driver serfdom? Not so much.

        But the buggy whip example is good. That original with you?

        1. Free lance writing in the era of the internet is how low quality institutions get click farm content on the cheap.

          Vox Media will be ending contracts with California freelance writers ahead of the state’s implementation of a bill intended to protect workers from exploitation as independent contractors.

          In a story on SB Nation’s website published Monday titled “Thank You, California,” SB Nation executive director John Ness writes that “in the early weeks and months of 2020, we will end our contracts with most contractors at California brands.” He adds, “This shift is part of a business and staffing strategy that we have been exploring over the past two years, but one that is also necessary in light of California’s new independent contractor law, which goes into effect January 1, 2020. That new law makes it impossible for us to continue with our current California team site structure because it restricts contractors from producing more than 35 written content ‘submissions’ per year.”

          https://www.hollywoodreporter.com/news/vox-media-ends-work-california-freelance-writers-gig-economy-law-1263022

        2. “Bob, free lance writing? Protected by the 1A.”

          We’ll see. That’s what the Pacific Legal Foundation is arguing. Hopefully they’ll win.

          But many freelancers have already had their livelihoods destroyed.

        3. “Bob, free lance writing? Protected by the 1A. Free lance (closely managed) driver serfdom? Not so much.”

          They can write all the want, they just can’t get paid if they exceed 35 stories per year for one site.

          I fail to see how 1A rights are the only right/privilege worth protecting.

          “But the buggy whip example is good. That original with you?”

          Buggy whip is the classic example of trying to stop change. The reins are my own addition so far as I know.

          1. But that’s the question isn’t it? Is it a legitimate governmental interest to try to protect some class of economic producers?

            Your example is forcing carmakers to install buggy whips, but the government interest Wouldn’t be in having buggy whips in cars (that’s irrational), but in keeping buggy whip makers in business. It’s definitely rational, and might even be closely tailored, to require car making to install buggy whips if the governmental interest is keeping buggy whip makers employed. Just as it would be a closely tailored law requiring teleportation machines to have buggy whips attached – after all, that’s the technology displacing the need to employ buggy whip makers.

            But is that a legitimate governmental interest? That’s what gets elided so often – not whether it’s a good fit, but whether it’s a legitimate interest.

      2. Destroy free lance writing? Guess I’ll have to start charging for those comments on Use of the Lance Through the Ages I’ve been posting here.

  3. The First Amendment argument, that the law treats certain kinds of speech more favorably than others and is de facto speech suppression masking as a labor law, might have more traction. But unlike the general “irrational animosity” argument, it’s grounded in actual constitutional text that legitimately justifies heightened scrutiny.

  4. The kitchen sink should work, but won’t, because long precedent treats economic rights like they don’t actually exist.

    Even though in real life they’re some of the most important.

    1. You talking about Lochner?

      1. I know youve read this blog enough to be familiar with prof Bernstein’s arguments on this. Maybe you disagree with them but I dont see why one has to be obtuse and strawmen others

  5. Seems like the underlying argument, repeated in various guises, is that U.S. laws—and maybe the Constitution too—sanctify free-market ideology. If that is where the reasoning leads, then that is the argument which needs to lose.

    The notion that the “laws” of economics ought to trump the principle of political self-government should not be accepted uncritically. It will not make sense until someone can show that economic “laws” are sufficiently founded in evidence to make them comparable to the “laws” of physics.

    Until that happens—perhaps never—the courts of the nation should treat the “laws” of economics as the ideological preferences they currently seem to be. On that basis, courts ought to treat economic assertions as valid basis for statutory law so long as those assertions command majorities which get them duly enacted, but not otherwise.

    1. It’s not laws of economics. It’s freedom. Most of the world is corrupt, which means politicians get in the way so they can get paid to get back out of the way. It just has to be hidden a little better in nations with free speech.

      “I hate capitalism!” he thumbed into his iPhone, then took a bite of a pristine apple in the middle of winter.

      1. The world has high-functioning economies, for example Germany, that have historically been more tightly regulated than the US. It is not for courts to simply assume government is always evil, or to constitutionalize their preferred regulatory policy.

        The freedom the constitution guarantees is an ordered liberty, not an absolute liberty. It is up to the legislative branch to decide how ordered.

        1. “The world has high-functioning economies, for example Germany, that have historically been more tightly regulated than the US. ”

          Maybe Germany isn’t your best example. Just sayin’

      2. Krayt, if it is about “freedom,” and not law, what are we talking about? This is a lawsuit.

        As for capitalism, apples, and ideology, I prefer finer-grained insight. As Adam Smith famously said, capitalism serves capitalists, first and foremost (I paraphrase). The benefits for consumers are by-products (Smith’s view), and less reliable than the benefits for the capitalists (my view).

        If you want “pristine” apples in mid-winter, capitalism (large scale) is pretty good at delivering, “pristine.” Less good on the, “apples,” part. Smaller-scale capitalism does both “pristine,” and “apples,” but not mid-winter. There are natural limits, apparently, and where natural limits apply, the market adjusts to suit the capitalists, not the consumers.

        In closely-related news, where I live, no matter what the season, the only way you can find a ripe peach, or even one which will ripen after you take it home, is to go to an orchard, pay a fee, and pick it yourself (small capitalism, again). Around here, big capitalism delivers peaches which have been picked unripe, chilled too long in storage, and then offered, dead, unripenable, but pristine in appearance. In stores, customers are free to buy them, wait as long as they wish for nothing to happen, and then throw them away.

        No economic theory I have heard explains why that process continues, but it is a capitalistically-governed process which has been going on for years. Presumably, sales of peaches are notably down. I stopped buying produce-aisle peaches years ago. I mostly don’t eat peaches anymore. I blame capitalism for that loss, just as I blame it for the commercial extinction of better-tasting apples, which was apparently done to favor pristine-looking ones.

        If you want to become an apple small-capitalist in one bite, find yourself an orchard which will let you pay to pick Macoun apples in New England, in the second week of October. Pick however many you need to make it to the first week in December, which is about as long as they retain good form.

        I am pro-capitalist, enthusiastically so, but mostly pro-small-capitalist. I want government policy to favor small capitalism, and more aggressively to break big capitalism into smaller pieces. I have lost patience with expansively pro-capitalist ideologues, who distinguish neither on the basis of market results, nor social consequences. Policy must be about consequences, not about attempts to vindicate ideology.

        1. “Presumably, sales of peaches are notably down. ”

          Your entire argument depends on that one premise. Maybe it’s not. Maybe the majority of consumers are fine with grocery store peaches and sales continue unabated. Perhaps while you and a few others have stopped buying grocery store peaches, many more people have started buying them now that they’re more readily available and that more than compensates for those who don’t buy.

          1. As you might have guessed, he’s wrong. Production value has increased for the peach industry.

            1. I would not suggest that is impossible, gormadoc. The peaches I can buy now (in a produce specialty store) are as starchy and crisp as raw potatoes. Maybe folks are cutting them up to cook as french fries.

        2. If you want government to favor small capitalists, then you are not pro-capitalist, let alone enthusiastically. You are just another statist wanting jackbooted-thugs to enforce your goals.

          1. This is the dude who believes that video games shouldn’t be protected by the 1st amendment because “determinism” prevents them from being art (apparently he’s never actually played a video game or seen Milli Vanilli perform). Your time is wasted.

            1. gormadoc, you have a long memory, to go with your abiding resentments. And you almost got the argument right.

              The objection is not that video games are not art. The objection is that video games are not expressive. Perhaps you think there ought to be a 1A niche for non-expressive art, whatever that might be?

              1. That’s willfully ignorant of you Steve.

                Video games have the ability to be more expressive than any other medium due to the nature of interactivity.

                Apocalypse Now might tell you that war is a hell that makes monsters out of men. However, Spec Ops the Line makes you choose to be the monster by making you feel that you had no choice. The Shadow of Innsmouth makes you fear for the protagonist fleeing the death cult. Call of Chuthulu makes you fear for yourself in that same story.

                Even in the classic arcades, Missile Command was created as a representation of cold war fears of the coming nuclear war. It’s a hopeless battle that cannot be won or even survived.

                In short, my friend, you are wrong.

                1. Ben here, edited, is your description of the various games: “makes monsters,” . . . “makes you,” . . . “making you,” . . . “makes you,” . . . “makes you,” . . . ” a hopeless battle that cannot be won.” If that is an argument for “interactivity,” it’s a pretty paradoxical one.

                  1. What portrays the horror of the monster more? Watching Alien and wondering how Ripley will get out, or playing Alien Isolation and having to chose when to leave cover, hoping that the xenomorph doesn’t turn around and eat your face off?

                    Please, my friend, support your thesis that games cannot be expressive. Snark isn’t a rebuttal.

        3. Grocery stores around here do sell Macouns, but only during the period you mention.

          I go through a lot of them, until I have to fall back on Macintoshes. So I type on my Apple Macintosh while gnawing at my Macintosh apple.

          1. The apples are “McIntosh”.

          2. Why in the name of whichever god will answer would you ever tough a Macintosh Apple?

            Aside from apple pies (and hence, tart green apples), why would you ever buy anything other than a honey crisp or one of its numerous relatives? Sweet, crisp, tangy – it’s the ideal apple.

            No, I haven’t had Macouns in the desert Southwest, so no comparisons there. But we stopped buying all of the traditional red apples ages ago. Progress, man!

            P.S. right on peaches. We ate the last of my grandmothers bottled peaches five years ago and I haven’t had a good one since. Other people who don’t like peaches really don’t know what they’re talking about – a peach shouldn’t have the texture of an apple!

            1. Robert, the great thing about honey crisp is you never have to worry when you can’t find one. You can always get the same experience with a Snickers bar.

        4. Policy must be about consequences, not about attempts to vindicate ideology.

          Consequentialism is an ideology.

        5. Stephen Lathrop

          I live, no matter what the season, the only way you can find a ripe peach, or even one which will ripen after you take it home, is to go to an orchard, pay a fee, and pick it yourself (small capitalism, again).

          I suspect this is false. I suspect you can take out an ad somewhere and hire a personal assistant to go to the orchard, pay your fee, pick it and bring it to you. Capitalism permits this. I suspect your assistant could also phone the orchard, offer to pay a much larger fee and arrange for delivery. If demand were big enough, the farmer could arrange for something like grub-hub or uber eats to deliver it.

          Around here, big capitalism delivers peaches which have been picked unripe, chilled too long in storage, and then offered, dead, unripenable, but pristine in appearance. In stores, customers are free to buy them, wait as long as they wish for nothing to happen, and then throw them away.

          I rarely buy them. But they make a relatively tasty pie. You may not like them, but I benefit from the availability of this product you don’t value. (I on the other hand, don’t buy prickly pears. But I don’t gin up theories that their availability represents some sort of failure on the part of capitalism.)

          No economic theory I have heard explains why that process continues,

          I dunno. Seems to me there is a theory that the farmers sell the product to those consumers who want and value it and so have an incentive to…. Oh. Geeh. I think that theory is called capitalism.

          No: the theory doesn’t say: the farmers need to provide Steve Lathrop specifically with what he wants at a cheap convenient price, even if what Steven Lathrop wants is extremely labor intensive for the farmer, and Steven Lathrop doesn’t want to pay that much. That would be some other theory.

          1. Too many free market ideologues define the best result possible as whatever the free market delivers. Which is what, in this relatively trivial instance, you have done, lucia. But delivering actually-dead peaches to a produce market, for sale to customers who instead expect fruit that will ripen—and making a business model of it—is not a vindication of the system. It is a practice for which capitalist advocates should offer apologies, not apologetics.

            Capitalism would be easier for many folks to embrace wholeheartedly if its outright supporters were willing to acknowledge imperfections, and allow for policy correctives. Some advocates’ determination never to do that accounts for a notable share of the capitalist-skeptical responses the advocates confront (or create).

            1. Stephen,
              No. I haven’t defined the best result possible as whatever the free market delivers. Not even close. I also haven’t claimed it’s perfecct.

              I grasp that you don’t like the peaches at your grocery store. But that doesn’t mean they are any more “actually-dead” than the ones you like. I also don’t know why you think the customers who do chose to buy them have mistaken expectations.

              As far as I can tell, you are condemning a capitalism because you personally are not getting what you want which appears not only to be peaches you prefer but delivered to your grocery store. It’s true that capitalism doesn’t promise to bring Stephan Lathrop anything and everything he wants easily and conveniently to him at low cost. I don’t think anyone every claimed it would do so.

              But as it seems to be your gripe against capitalism is that you personally don’t get what you want when you want it, it seems to me your problem is you have the emotional maturity of a spoiled 3 year old.

              1. lucia, I am not using “dead” figuratively. By, “actually dead,” I mean, D – E – D, DED. Not alive, incapable of ever again doing anything a living fruit can do, such as ripen.

                Dead peaches, like dead people, remain inert. They are ex-peaches, infused with none of the properties of life, destined only to rot. Which is what the peaches I am talking about do invariably. A peach such as that changes not at all, until rot overtakes it. If at any time before that happens, you bite into it, you find it as hard, starchy, juiceless, and tough as it was the day you foolishly paid for it. Then, after a surprising number of days in that unchanging condition, it rots, and turns putrid—as will every other peach sold alongside it. Buy as many as you like. None ripen, all rot.

                Peaches do this, apparently, because they have been killed by being over-chilled (or chilled too long), either in storage, or in transport. And like a chilled corpse in a morgue, rot is kept at bay only by continuous refrigeration. The chill is on them still when they are taken from their shipping boxes, and placed on the shelves. But when you typically encounter them, sitting on the shelf, after that life-destroying chill has dissipated, they look fine. You have no means but experience to understand that these are not unripe peaches, awaiting transformation, but dead peaches, awaiting rot.

                I am not condemning capitalism. I am chiding it. Every friend of capitalism must be willing to do that, lest capitalism itself rot like a chilled peach.

                1. Stephen,
                  Sorry for interpreting “actually” to mean “actually”. But even figuratively, the peaches you like are also “D – E – D, DED. ” They cannot, for example, enlarge. I get it: you love this particular variety of “DED” and don’t like other ones.

                  I’m astonished you think that consumers who buy peaches at the grocery store are unaware of the difference between grocery store produce and stuff you can get by taking a long trip to a farm, hire someone to pick for you or special order from growers. These merchants are easily found (google “peaches shipped from grower”).

                  Yes: under capitalism, some items that require extra labor will either require you to expend your own effort and energy to obtain (by driving and picking yourself) or spend money (by hiring someone or paying extra to have the item shipped.)

                  I don’t think the fact that you might need to spend extra for the peaches of your dreams that require extra labor and handling to obtain, while other consumers can purchase peaches they consider adequate to their needs and pocket books is a flaw of capitalism.

                  I have no objection to your chiding capitalism. I merely think you are utterly mistaken in considering your gripes about peaches to represent a flaw in capitalism. Perhaps you can find a better example that actually represents a flaw.

    2. Not so much sanctify free-market ideology, as the individual freedom that ideology relies on.

    3. The ‘laws’ of economics are at least as certain as the ‘laws’ of physics most people learn. Just because a significant number of people refuse to believe them doesn’t make it any less true. For example, over 97% of economists believe markets are the best way to structure an economy. (The remainder are literally all marxist economists).

      But even if you refuse to accept economic reality, why should people’s economic rights receive less protection than their political rights? Are political rights based on ‘laws’ of politics, or just political preferences? The constitution is a document which preferences freedom over the state. It’d be nice if SCOTUS would put some teeth into economic rights. Prior to FDR stacking the court, few believed the government had any business micromanaging such decisions for us.

      1. Economics isn’t physics, though. It never will be. Social science has it’s benefits, but rock-solid predictiveness is not one of them.

        A great example is what you wrote here. Assuming your 97% number is close to correct (where are you getting that from, BTW?) The simple principle of ‘markets are good’ can mean a lot of things. What the OP, and presumably you, are arguing for is quite a bit more stark than that nebulous statement. The benefits of unregulated labor markets is not a law of physics.

        Also, invoking Marxist without evidence as just ‘I’ll be the people who are skeptical of markets are all Marxists’ smacks of lame redbating unless you dig into the crosstabs.

        Historically, Lochner proved not great for the economy, bad for individual freedoms, and actually harmful for capitalism by associating it with the above troubles.

        1. The 97% number is from a survey of economists. I don’t have a citation offhand, but it (and at least one other media article on it) were linked by a Reason article in the last several months. (And no, really, pretty much the only ones who disagreed literally are Marxist Economists. That’s not a perjorative description of them – there are academics who describe themselves that way, and they work out to somewhere under 3% of academic economists – given their answer to such a question is obvious, it’s a pretty solid inference they make up most, if not all, of the dissenters).

          (I’d further note that markets structuring the economy does not necessarily mean ‘laissez faire’.)

          I might also point out that i referenced the ‘laws of physics most people learn’ – which are generally horribly incomplete and not great for long term predictions or complex problems either. Heck, most people never even learn calculus, so we’re talking, at best, algeraic approximations of newtonian physics (which is an inaccurate model). Economics doesn’t need to be capable of ‘rock solid’ predictions to do as well.

      2. The ‘laws’ of economics are at least as certain as the ‘laws’ of physics most people learn.

        Go ahead. Pick yourself some non-trivial test of the predictive power of any law of economics you choose, and put a bet on it. If you win, double down. Keep it up until you go broke.

        There are plenty of physical laws where the same process would make you rich, every time. Except no one would take the other side of your bet.

        1. “ There are plenty of physical laws where the same process would make you rich, every time. Except no one would take the other side of your bet.”

          Yeah they will. Just look on Kickstarter or Indiegogo for numerous examples. Solar Roadways? Waterseer? The laws of physics say they won’t work, yet many people took the other side of that bet.

          Proving a corollary of a law of economics, “there’s a sucker born every minute.”

        2. On the one hand, most people never even learn calculus (much less differential equations), so physics “as most people learn” it is wrong. (Algebraic newtonian mechanics is *materially wrong*, even if a reasonable approximation of some simple problems in normal circumstances over short scales of time and space).

          On the other hand, a lot of real physics is rarely any more reliable than real economics. Solving the heat equation for a real object, like a turkey, for example, is horribly imprecise. (I’m reminded of a joke about maximizing milk production where the physicist-as-punch-line starts with ‘first, assume a spherical cow’). Fluid dynamics is horribly complicated and impossible to model outside of simple systems. Three-body (or more) problems are stupidly hard and impossible to make good predictions on (‘chaotic’ is the technical description).

          So when you demand economists be ‘as successful’ at making predictions as physicists in simplified laboratory settings, when the economist is doing the equivalent of trying to model whole ocean micro-currents, you’re setting up a false comparison. Physics isn’t capable of predicting an equivalent system either.

          So, one, I wasn’t even referencing real physics, but physics as is understood by most people. Two, even real physics predictability breaks down outside of artificial simplification, which makes real world predictions mostly informed guesses. And three, I’m not sure economics track record is as bad as you think it is.

          Just one pair of examples for successful economics ‘laws’:
          The Law of Supply and the Law of Demand are, much like a lot of physics, true but hard to make highly precise predictions about the real world because things are complicated. (Compared to n-body problems, I think physics is the clear loser here on predictive success). (LoS: if the price of a good goes up, more will be produced. LoD: if the price of a good goes down, more will be purchased, assuming sufficient supply exists).

          Now, you may well say that you can’t get a precise prediction on the response for a given price change in a real market, but a lot of physics won’t give you a precise prediction in the real world either. Tell me, this past thanksgiving, did you solve the heat equation for your Turkey, and did it give you the precisely correct cooking time?

          1. Fluid dynamics is horribly complicated and impossible to model outside of simple systems.

            I’m guessing you are not an engineer. Perhaps you have also never taken a fluids course.

            Before we argue too much about whether what you are claiming is utter nonsense, or just so vague as to be meaningless: Define “simple systems”.

            I have no idea whether you consider the water distribution system for a large city “simple” or “complex”. Engineers can certainly models these sufficiently well to permit us to design and implement reliable systems to deliver water to communities. Engineers can also model flow sufficiently well to predict external flows over things like aircraft sufficiently well to have functioning air craft and so on.

            For that matter: engineers can predict the temperature evolution in a turkey while it is being cooked sufficiently well for food scientists to create automated turkey cooking systems if that’s what a food scientist wants to do.

            1. I’d say anything contained in pipes is a (relatively) simple system, because the pipes constrain the directions the water can move, so all you need to do is apply pressure. Try something like ocean water movement dynamics for a complicated fluid mechanics problem comparable to predicting national or international economic events. (And considering what people demand predictions for, that means predicting small-scale phenomena from a full ocean model).

              I’m pretty sure, if they exist, automatic turkey cooking systems just use infrared to track the temperature of the turkey, not try to predict temperature evolution via the heat equation. (Which is pretty much what my microwave reheat button does, too. Much easier to just continuously measure the variable of interest and stop when ‘done’). The only automated systems i can find are turkey fryers, and they do, in fact, use temperature sensors rather than predictive modeling. Needless to say, that’s not a successful predictive model.

              1. It is undeniable that problems are more difficult to model than others. Some things are more difficult to predict than other things. That doesn’t make mechanics “materially wrong”.

                Try something like ocean water movement dynamics for a complicated fluid mechanics problem comparable to predicting national or international economic events.

                Tides can be predicted. Models can capture large scale repeatable features of ocean circulation. I’m not going to link that to economics because I know very little about economics. But you think prediction of ocean water movement is comparable to predicting large scale economic events, then I should think you would be conceding the metaphor suggests economics can predict large scale events.

                I’m pretty sure, if they exist, automatic turkey cooking systems just use infrared to track the temperature of the turkey, not try to predict temperature evolution via the heat equation.

                Probably true because engineers are practical. But predicting temperature evolution inside cooking turkey would be do-able as a mechanical engineering heat transfer problem– within some modeling constraints. We would need more than the heat equation. We would need some information about physical properties of turkey meet (obtainable) and information about distribution of meat, bone and so on of the raw turkey.
                The problem is totally do able. It would be mostly a pointless waste of time– because no one needs that info to cook a delicious turkey– but it could be done.

                But seriously, no one is going to do the calculation for a freakin’ turkey. They do it for material processing of problems to support manufacturing. This isn’t because the turkey is “harder”. It’s because the turkey problem would be pointless navel gazing.

                1. Ocean water movement/
                  I wasn’t talking about tides. Obviously you’re not terribly familiar with ocean science either (most people aren’t, so that’s not a criticism). Interchange of water between oceans, for example, has only been modeled at very large scale. How ‘deep’ water moves outside major currents is poorly understood. And even surface water movement is best understood by measurement rather than model. (The relatively warm mediterranean surface water that spills across the Atlantic, for example – while you might get in the ballpark of a couple hundred nautical miles by model, if you want to know what the actual extent is on a given day and time, you reference SST satellite imagery).

                  And that’s the large and repeatable stuff. What we can do is the equivalent of saying ‘markets have booms and busts’. At the level of ‘make a bet and profit’, you’d want a model of the whole ocean that could tell you things like how a sunken ship changed the way water eddied around objects on the sea floor.

                  Heat Equation/
                  The problem is the turkey is composed of heterogenous matter which doesn’t have consistent properties across the material. Even within just the bone or just the turkey meat, thermal properties vary because it’s not isomorphic. Then you have a complicated surface manifold which isn’t well represented by a mathematical function you can do differential equations on. (Assume a spherical turkey is a joke, but it’s also how a lot of this stuff gets approximated in reality, because natural surfaces aren’t easy to work with).

                  Most, if not all, industrial applications involve homogenous material with a relatively simple manifold, because that’s actually a tractable problem.

                  1. Squirrel,
                    You weren’t specific. You decreed “ocean dynamics” as the complicated ones. There are lots of ocean dynamics problems. Tides are one of them. Thermohaline circulation is one of them. Surface wave phenomena is one of them. The navy does modeling of interaction between water motion and seabed surface motion at the bottom. These “complicated” situations are modeled. Some that are not modeled could be. There is just no reasons to bother.

                    Interchange of water between oceans, for example, has only been modeled at very large scale.

                    Well… duh. News flash: Oceans are large. Interchange between large things is dominated by large scales, and so it is modeled that way. Effects that are not of interest can be ignored. This is not a “failure” of mechanics nor modeling.

                    At the level of ‘make a bet and profit’, you’d want a model of the whole ocean that could tell you things like how a sunken ship changed the way water eddied around objects on the sea floor.

                    Sure. But that doesn’t mean one can’t model this. That scavengers looking for buried treasured don’t do it doesn’t mean there is something wrong or intractable about modeling vortex shedding around objects laying on the subsurface of the ocean floor. It merely means it’s not the cost effective way to solve the problem that interests them which is to try to find treasure.
                    The problem with your examples is that while they are painstaking problems, they don’t advance the rather extreme claim you are making — which is that these things are impossible to model. They aren’t. They also don’t advance the even more extreme claim you made– that mechanics is “materially wrong”.

                  2. Squirrel

                    The problem is the turkey is composed of heterogenous matter which doesn’t have consistent properties across the material. Even within just the bone or just the turkey meat, thermal properties vary because it’s not isomorphic.

                    Sure. My ph.d. thesis is in the area of modeling multiphase flows.

                    Multiphase materials (whether flowing or not) are inheterogeneous, and usually isotropic. Properties vary with time and space. This makes the problem complicated.

                    But that doesn’t mean they can’t be modeled. As I mentioned, these problems are modeled. The “turkey” problem is certainly less complicated than the problem of inheterogeneous, isotraphic materials that also flow and melt and solidify– which is the problem people dealing with casting or other forms of material processing.

                    The difficulties presented with this problem do not represent any deficiency in “the heat equation”, which is perfectly fine and used locally.

                    The problems are sufficiently complicated that computer code are used– but they are dealt with. (Yes. Some sub-models are used to deal with fine scale behavior. That’s also not a problem with “the heat equation”.)

                    Most, if not all, industrial applications involve homogenous material

                    Oh? I’m guessing you aren’t an engineer. If you are or once were, you nevertheless appear to have little grasp of the range of industrial applications engineers deal with. You certainly have little grasp of what makes a problem complicated or difficult to model. Notwithstanding your expansive claims: the problem isn’t anything materially wrong with mechanics nor the heat equation!

                  3. Squirrel, you have conveniently nebulous goalposts for what hard and complex mean. As noted by Lucia, many problems are solvable to within quite effective tolerances, if that’s what you’re going for.

                    Bottom line – the behavior of groups of people with resources is not well-defined like the behavior of a ball on a slope or even a star.
                    Do we know the ball on the slope/star to 100% accuracy? That’s a silly question, as you noted. But the idea that we currently have anything in economics as predictive as what we have in even our layperson physics is even sillier.

                    1. Sarcatr0,
                      Heck, the behavior of an individual person with resources is not easily predicted either. This is true even given sizable of information about the person and their resources and it can be true for what might seem like simple “yes”, “no” decisions. Predicting behavior “simplest” situation involving decisions by sentient beings are simply less tractable than “simplest” in mechanics, heat transfer, or thermodynamics.

                      Of course, it’s also difficult (or very expensive) to do experiments to permit us to observe of economic decisions in nice “clean” simple settings where factors are isolated. It’s a heck of a lot cheaper and easier to do experiments logs rolling down ramps than to do an experiment to discover precisely how an individual consumer will react to the price of apples doubling. Predicting the aggregate is likely easier– but that’s still going to depend on what happened to the price of pears!

      3. The ‘laws’ of economics are at least as certain as the ‘laws’ of physics most people learn. Just because a significant number of people refuse to believe them doesn’t make it any less true.

        Outside of simple models in textbooks this is ridiculous BS. They are at best good generalizations, and useful for discussing a lot of things, and as a baseline for analyses, but no, they don’t resemble the laws of physics.

        over 97% of economists believe markets are the best way to structure an economy.

        Ell, that depends on what you mean by “markets.” Your claim is certainly false if you mean the libertarian delight of unregulated markets. You will find few economists who believe that.

        1. Unless you expand “laws of physics” to be pretty much everything we have a working theory of, those are also generalizations. Most of the working theories are also just generalizations. Newtonian mechanics are good enough if we’re working in a vacuum far from other objects, but they don’t represent normal life all that well, to be honest. They only work well once we bring in everything: gravity, friction, and electrostatics screw it up. Even then, we need more to describe relativistic effects and then those don’t apply very well to everyday life.

          Sure, supply and demand doesn’t do much out-of-the-box, but it can do a lot once comparative advantage is acknowledged, for instance.

          1. I would have said that exactly the opposite way – economic laws are just as good as Newtonian laws. They’re both known to be flawed, but good enough for a lot of purposes when precision integrated over any dimension isn’t important (so that error propagation doesn’t compound).

            What happens when you shoot bullet at a watermelon from 1 meter? Newtonian physics is perfectly fine for that. What about at a thousand meters? Still good, if you add in drag and wind. What about 10 thousand? Still good if you add in the rotation of the earth. What about if you up the speed from 1000m/s to 10k m/s? Same thing. 100k m/s? Now you have to add plasma, but Newton still works for that. What about a hundred million meters per second? Nope. Now Newtonian physics has broken down and the laws of physics under Newton no longer apply – you’re no longer in the energy transfer stage and now into mass annihilation, and Newtonian laws don’t even come close.

            Economic laws are similar – they are quite accurate until you let the errors compound.

            1. Depends on the problem you’re trying to solve.

              The heat equation, for example, works pretty well on a sphere of uniform material. Try to use it to calculate your cooking time for a Turkey and you might as well just give up and buy a meat thermometer.

              When you say shooting a bullet at a watermelon works pretty well under Newtonian mechanics, well, it depends on what it is you’re trying to calculate. How much will it slow the bullet by? Pretty decent. How much will the watermelon move? That depends on whether the watermelon stays in one piece (with a hole in it), ejects a chunk, or shatters. Not so great on that front. Predicting the trajectories of flying watermelon parts? Really bad.

              I’ll also note that while Newtonian mechanics is reasonably accurate for simple problems under normal conditions and short time scales, it’s also factually *wrong* as a description of reality. The wrongness just doesn’t matter much within those constrained conditions.

          2. Oh boy, comparative advantage!

            Gormadoc, have you ever noticed the tacit premise in comparative advantage, the one that doesn’t get mentioned much in economics class? Comparative advantage assumes (depends on, actually) the notion that labor will be fungible, and not only fungible, but fungible in unlimited quantities, elastically mobile across skill levels, and geographically mobile besides. See much evidence for all that in today’s economy?

            Try not to fall into the trap of supposing that a failed economic law hasn’t really failed if you can find explanations for why it doesn’t work. Down that road lurk unfaithful Scotsmen.

      4. “The laws of economics are at least as certain as the laws of physics.”

        This is not just true. It’s a very good statement of the problem.

        The problem comes from preferring the more exact (or “certain”) statement over the one that better predicts experimental outcomes. The more empirically grounded statement is almost inevitably not going to be as exact or “certain.” Physics in particularly, which has valued experimental verification, has been becoming less and less certain for more than a century, with chaos theory and other developments resulting in widespread acceptance of much greater limitations on our ability to make predictions about complex systems than was previously believed.

        A basic problem with economics is that it has tended to operate like mathematics or theology rather than like science, deriving statements from baldly assumed axioms using sophisticated, clever-looking logic and mathematics, and leaving it there. Instead of checking derived statements against experimental evidence like a real science does, the exactness of the statements, their sophistication, their “smartness,” is instead presented as the proof of their truth, as you did above. It’s snake oil and hokum.

        Behavioral economics attempts to test economic theories against experimental evidence. Classical economic theory simply crumbles when evidence rather than exactness becomes the touchstone of acceptance. It is a poor predictor of how people actually behave and how markets actually work. To take one obvious example, classical economics says prices seek and will tend to stay at an equilibrium. They don’t.

        1. The physicist Richard Feynman talked about “cargo cult science,” the idea that if you can duplicate the rituals of the scientific method, you will get the same results. The idea that physics is exact and has been very successful, therefore if we can be exact like physics, we’ll be successful too, is an example of the cargo cult mentality at work.

        2. Part of my point is that physics isn’t actually that precise (outside of simplified and carefully constructed lab conditions, getting a good physics prediction for phenomena is hard to impossible).

          I nowhere mean to imply that you can get precise predictions with economics. I meant precisely the reverse.

          For some real world evidence that markets structuring economies and institutions which protect property rights are superior to other methods we’ve tried, I recommend Why Nations Fail by Acemoglu and Robinson. They point to some compelling real world parallel ‘experiments’ in governance and show how outcomes are better for institutions with more economic rights protection. (For example: Nogales Mexico vs. Nogales, Arizona – a city split by a national border with consequently different institutions on either side.)

        3. ReaderY, that is an excellent comment, and much appreciated. A condensed way to say something similar, which I have enjoyed using for years, is, “Economics tells us how people would behave if people were numbers.”

    4. The actual Constitution- i.e., the common law, iterative process of caselaw interpreting the document- definitely does not enact Mr. Herbert Spencer’s Social Statics.

    5. No the US Constitution and US laws are premised on liberty.

      Just because the courts have failed to do their jobs, doesn’t mean that isn’t true.

  6. Sooner or later, some company will just respond to this kind of political nonsense by just pulling out of California until the populace recalls the politicians that enacted the madness, and votes in logic and reason.

    If all Uber apps in a CA location just showed a landing page stating “Uber has been outlawed by CA, and until those laws are repealed, no rides for you”, then there would be a voter lashback to fix the mindsets of the legislature. Even better if the app provided a link to a recall website.

    1. Or maybe the dark picture of the Californian business climate isn’t quite the all costs no benefit scenario you think it is.

      Otherwise it would already have happened.

      1. California is probably going to lose a congressional seat next census because of a decrease in population. First time ever.

        Even a state with such advantages as California has reaches a tipping point.

        1. Not what the post I was replying to said. And also hardly a sign of collapse for a state as big as Cali.

          1. Yes, bigness has everything to do with government collapse. Just ask the USSR, or any of the Chinese dynasties.

        2. California is probably going to lose a congressional seat next census because of a decrease in population. First time ever.

          California’s population isn’t decreasing. Its slowing down (much like the rest of the country). However – other states have seen larger population growths. That is the reason California most likely will lose a congressional seat (with a few other states like Minnesota and Alabama)

          And California’s economy is still 40% larger than the second largest economy in the US (which would be Texas).

      2. “Or maybe the dark picture of the Californian business climate isn’t quite the all costs no benefit scenario you think it is.”

        Are you kidding? Just look at the data. California has one of the highest GINI coefficients in the country. What a terrible place it must be! That means that a poor person in California is much poorer than a poor person with equal resources in most other places in the country.

        1. While California isn’t a great place to live if you’re near the bottom (the absolute bottom does better than they could do elsewhere), the GINI coefficient isn’t a great representation of actual poverty. For California and the US as a whole it’s more a representation of how easy it is to make very large amounts of money. Ukraine, for example, has a very low GINI coefficient but it’s not a great place to live whether you’re rich or poor. The Canadian lifestyle is broadly similar to that of the US but the GINI coefficient is low because of the lack of extreme high earners. We live far better now than in the 70s and with less relative poverty, but the GINI coefficient has actually increased, purely because the richest even even more now.

      3. Companies are leaving California due to the bad business climate, though. Manufacturers and large headquarters are the most affected; the first by the increasing burden of regulations and the latter by high wages demanded by workers who need it to afford the high cost of living. It’s coupled with California seeing net negative domestic migration, disproportionately the poor due to the high cost of living. The malaise isn’t just affecting the expensive cites either; the only rural counties with large population increases were the ones who absorbed victims of wildfires.

        1. As this very blog points out, the cost of living isn’t caused by business regulations, it’s cause by rich NIMBYs.

          My general point is that California has it’s problems, but the right’s decision to demonize them as the epitome of liberalism is silly, though effective self-propaganda. Just look at these comments – everyone loves a good nemesis to hate on.

          1. Two different issues. Many manufacturers can’t afford to do business in California anymore: the industry leaving California the most is manufacturing. That’s due to regulations, many of which are also NIMBY. And while zoning and land-use regulations might not be exclusively business regulations, they are a major driver of high property costs, which drives up the cost of living and in turn hurts the large headquarters.

            As an example, my wife worked with a man with an archaeology degree from CA. Not a common occupation in most places but in CA it’s a necessary one because they have to do a thorough archaeological examination of properties before developing or redeveloping them and keep some on hand during construction. He ended up losing that job with the recession, moved here, and got an unrelated job. It’s not a business regulation, per se, but it contributes to everybody’s problems. And it’s only one of many; they need many different people to do similar consultation work to develop property.

  7. An additional point is the California law conflicts with federal law.
    Under both the old 20 factor test and the newer subjective test, the uber/lyft drivers are independent contractors.

    IRS version of the newer subjective tests :
    “Facts that provide evidence of the degree of control and independence fall into three categories:

    Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
    Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
    Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?
    Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.”

    The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in

    1. Why in the world can’t people have one status for state law purposes and another for federal law purposes. Happens all the time. As an example familiar to most people, there are lots of items that are deductible for federal tax purposes but not for many state tax purposes, and vice versa.

      Being employees for state law purposes and contractors for federal law purposes is no different. They could pay state employee taxes but not federal employee taxes, for example. Congress lacks power to simply order people defined in an absolute sense. It can only define things for federal purposes. States always remain free to define them differently for state purposes.

      1. If you have employees for state law purposes and independent contractor status for federal law, then it creates a host of problems with state vs federal labor laws, discrimination etc.

        The only benefit is the $200 (approximate) additional state unemployment tax per employee per year, plus another $200-$400 of additional SDI for CA.

    2. Uber loses on those- “Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?”

      Yes. Uber penalizes drivers who do not take a certain number of jobs per month and at certain times.

      “Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)”

      Uber basically dictates all of those. Uber drivers can’t negotiate their rates with Uber and they can’t negotiate expenses.

      “Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?”

      If Uber doesn’t have drivers, the business fails flat out. Uber drivers are basically providing the key work for the business.

      Uber could provide a marketplace- allow people to sort by rating rather than cutting off drivers below a certain rating, allow drivers to bid on jobs, etc. They could be the EBay of ride services, as it were. But they present themselves as a provider of rides, and access to the drivers directly is opaque to the user.

  8. The litigants, the OP author, and it seems a decent cohort of the commenters are pushing for some radical redefinitions upward of federal power all of the sudden, which seems to me to be the real reason behind this litigation.
    I’d have though Lochner was dead, but who knows how this’ll turn out judicially these days.

    1. If you support substantive due process rights for abortion, gay marriage and all sorts of other things (with no discernible limiting principles) you have no leg to stand on (other than your policy preferences) in opposing the revival of economic substantive due process rights.

      1. Asking for a non-lawyer friend: Does “substantive due process rights,” mean the same thing as, “imaginary rights?”

  9. I am intrigued by this from p. 8 of the complaint:

    Company Plaintiffs maintain that (among
    other things) they are not hiring entities under AB 5 and can establish that app-based independent service providers are not employees under the ABC test.

    which seems a slightly less direct way of saying Company Plaintiffs admit lack of standing.

    1. That just seems like an alternate way of winning. If true then they both have no standing to challenge the constitutionality of the law and they’d be entitled to a ruling that the law doesn’t apply to them.

      It essentially saying “we don’t think this applies to us, but if it does, it’s unconstitutional.”

      1. No, when a plaintiff lacks standing the court does not have jurisdiction to issue rulings on anything substantive.

  10. This reminds me of Justice Thomas’ dissent in Lawrence v. Texas. He stated that the Texas anti-sodomy law was “uncommonly silly” and something he would vote against were he sitting in the Texas Legislature. But as a Supreme Court Justice, his duty was to determine whether the law violated some right in the Constitution.

    Of course, that did not stop the majority there from inventing a right that did not heretofore exist in the Constitution. The Court could do the same thing here, but won’t.

  11. From an ideological point of view, I think it is poor policy to always run to the courts to save us from well-meaning legislative idiocy. Let the people of California live with the effects of what their legislature did. Maybe they will learn that “give me all the goodies for nothing” is bad policy that leads to unintended consequences.

  12. I sometimes wish that those who think economic freedom trumps everything could find themselves transported back in time to the days when economic freedom did trump everything, so they could find themselves living in company towns, being paid in scrip redeemable at the company store, having their children work 14 hour days in factories, with no weekends, no paid holidays, lots of overtime with no overtime pay, and no health insurance. Sounds heavenly.

    There is a reason libertarianism never gets more than about 1% of the popular vote.

  13. Idk how those who support substantive due process in other arenas have anything resembling a principled case for opposing an unenumerated “right to pursue a lawful occupation” or something to that effect.

    1. Because no right, including substantive due process is absolute. Free speech does not include the right to shout under your bedroom window with a bullhorn at 3 AM. Freedom of religion does not include the right to hijack planes and fly them into buildings. The right to trial by jury does not mean small claims court is unconstitutional. And substantive due process does not preclude all economic regulation of any kind, otherwise we’d still have children working 14 hour days in factories. Because other people — and the system itself — have rights too.

      1. Your examples don’t work.

        The bullhorn violates the right to property – your verbal emissions intrude on my ownership of the air inside my ears.

        Your hijackers steal the plane from the pilots, or break the contract between pilots and passengers.

        And some children do work 14 hour days in factories, but we call them schools.

        The jury clause should prohibit small claims courts, you’re right on that one. Whether it’s a good idea or not is different, but it’s a valid complaint.

        1. Robert, your responses to my examples mostly miss the point. Even if the 9/11 hijackers had used their own planes, freedom of religion would not have shielded them from prosecution, because no right is absolute and other people have rights too. In fact, living together in civil society means there will always be rights in conflict that need to be balanced against each other. I agree with libertarians that economic liberty is important; I just don’t think it’s conclusive when faced with other people having interests that clash with it. It has to be balanced against other, competing interests that come from people having to live together in civil society.

          Your claim that you own the air inside your ears is certainly novel; can you cite any authority for that proposition? Assuming you’re right, do you have a tort claim against people whose conversations you overhear in public places? Or do you have a duty to protect your property by wearing earplugs (or soundproofing your bedroom if your neighbor happens to enjoy shouting through a bullhorn at 3AM?)

      2. “Because no right, including substantive due process is absolute. Free speech does not include the right to shout under your bedroom window with a bullhorn at 3 AM. ”

        Yup. Many other examples… Sexual autonomy doesn’t include the right to sleep with your boss…

  14. The founders were also very skeptical of democracy. Mencken said “Democracy is the theory that the common people know what they want, and deserve to get it good and hard. “

    1. *oops, meant As Mencken said, not saying Mencken was a founder

    2. I have yet to hear a good argument for why the political minority is any better at setting policy than is the political majority. Attacks on democracy are nothing more than tribalism brought to you by people who know they can’t win fair elections.

      1. It’s not a minority-majority dichotomy, it’s a give-it-to-me versus go-away dichotomy.

        If one party says “you must do this thing” and the other says “leave me alone” the “leave me along” side is almost always right, because they leave open the option to add more constraints later, while the constrainers can lock in their preferred rules. After all, they can always just keep voting on a rule that says “only unanimous votes can change the rules” until they win it and then lock in their preferred position in perpetuity with a mere simple majority.

        1. Robert, your argument basically boils down to conservative/libertarian policy preferences are entitled to special treatment. My view is that the public’s right to self governance means that procedural rules should be viewpoint-neutral. My vote should count the same whether I live in Manhattan, New York or Manhattan, Kansas.

          We have a Bill of Rights to protect political minorities beyond a certain point, and we need a judiciary that actively enforces it, but living under any political system means that at least some of the time, you’re not going to get the results you want. That’s life.

          And by the way, speaking as someone whose politics is probably to the left of most of those here, if “my side” lost elections fair and square, I think most of my fellow liberals would acknowledge that we lost fair and square and move on. The raw fury that you’re seeing from the left, which may yet spill over into actual violence, comes from the knowledge that we don’t have fair elections, and we’re losing because of the way the system is set up. Current demographic trends suggest that in 20 years, 35% of the population in mostly red states will elect 70% of the Senate. That’s a ticking time bomb, and a recipe for civil war.

  15. Having reviewed the Complaint, I don’t think that the summary in the post does it justice. One of their main arguments is that the new law imposes an expansive test for who is an employee (designed to capture app platform employers like Uber and Postmates). But then the law is riddled with exceptions, all of which allegedly were granted for politically connected industries.
    The result is a series of irrational distinctions.

    Many of the exemptions are wholly arbitrary. For example, a delivery truck driver is exempt when delivering milk, but not when delivering juice, fruit, baked goods, or meat products. See AB 5 § 5(c)(1)(A). A commercial fisherman is exempt when working on an American vessel, but not a foreign vessel. See id. § 2(b)(6). And a freelance editor or writer is exempt if she publishes 35 submissions per year per “putative employer,” but not if she publishes 36.

    Another distinction alluded to is that freelance grant application writers are exempt, while freelance article writers are not (if over 3 articles.) There are many more examples.

    So the issue is not just “animus,” it is that the law is irrational in that it aims to protect workers, but provides many exemptions (some vague) that can only be explained by political favoritism rather than any rational scheme.

    BTW, here is another interesting allegation:

    In the months preceding the passage of AB 5, the California Labor Federation circulated a one-page form that business groups could complete to request an exemption from the statute. These “opt out” forms were the idea of Assemblywoman
    Gonzalez’s staff and her staff, in turn, worked to amend the bill to create additional exemptions based upon the relative interest from labor groups in specific businesses seeking an exemption. This process played out repeatedly and is responsible for the
    irrational and arbitrary results of the final bill. Assemblywoman Gonzalez touted the fact that the bill reflected the union’s bare political interests to irrationally benefit friends and harm others, explaining at the time of its passage in the California Assembly that “I am a Teamster . . . . I am the union.”

    While I think this is still likely a loser, I don’t think it is as foreclosed by prior law as the commenters here seem to think.

    Take an extreme example. If the law said, “any business whose name starts with the letters Q or X is exempt,” then clearly that would be irrational and likely unconstitutional under the Due Process Clause. These exemptions are not that extreme, but they are still, on their face, hard to explain.

  16. Late to the party as I was on leave.

    I didn’t see any mention of the comment that “The Ninth Amendment has never been incorporated. It doesn’t limit state action.”

    Sure, it may not have been incorporated, but I still think it limits state action

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