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Comment by lukifer | Hacker News Reader

I beg to differ; at the risk of appealing to authority, Article 23 of the UDHR [1] states that free choice of employment is a basic human right. Just because an injustice is mild compared to extreme cases, it does not mean it is not injustice.

Even if non-competes are only intended to prevent Wonka employees from selling recipes to Slugworth, the end result is vendor lock-in for humans. If your skill set involves deep specialization, the transaction cost of seeking new employment is abandoning your skills completely, and/or stalling your career for N years. Though I can understand guarding specific trade secrets, I don't think anybody has the right to dictate how another human spends their productive hours.

[1] http://www.un.org/en/documents/udhr/

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You have free choice to avoid employment with companies that require non-competes.

Moreover you are even welcome to start a company that does not require non-competes and later on have the pleasure of investing in professional development of people who may later turn their talents against you.

Not if there are no (desirable/worthwhile) companies that take people on without a non-compete.

And what if you work for such a company but want to strike out on your own? The non-compete clause doesn't differentiate between an existing competitor and one you found yourself.

You also have the choice to bad mouth non-competes live in states where they are mostly invalid(like California) and support laws banning non-competes.

Waiver of a right != denial of a right

If someone takes your apples, it makes a huge difference whether you agreed to trade them for the taker's oranges.

A right that you cannot waive is not a right; it is an obligation.

In that case: am I allowed to voluntarily pledge every minute of my life to you for the next 7 years in exchange for an all-expenses trip to the other side of the world? If I change my mind, are you allowed to imprison and torture me until I comply to the terms of the agreement?

While this is textbook ad absurdum, there is some point at which a line is drawn on which rights may be voluntarily surrendered, especially as regards selling one's future self. (Or if you believe that all rights can be voluntarily sold/surrendered: Can I voluntarily surrender my right to surrender rights? Can I sign a contract that says I may no longer sign contracts?)

Indeed, there is a line; the existence of a right to free choice of labor ain't it though.

You tell me where you think the line should be drawn:

(a) You agree not to leave Apple* for Google, for 3 years.

(b) You agree not work for Google, ever.

(d) You agree not to develop software for anyone besides Apple, ever.

(e) You agree not to do any kind of work for anyone besides Apple for 3 years.

(f) You agree not to do any kind of work for anyone besides Apple, forever.

Personally, I don't think any of those contracts should be enforceable by law, regardless of what people foolishly choose to sign.

* (the choice of Apple being entirely arbitrary)

However I draw the line, it would not be grounded in appeal to the existence of a right to choice in labor, as you attempted to justify it.

There are good arguments for prohibiting certain arrangements; the one you gave wasn't one of them. That's all I was trying to say.

For philosophical reasons, I like using the idea of fundamental human rights to justify things more than simple pragmatism. It makes it easier to build a solid foundation of things that can be taken for granted in a human existence, making more cognitive effort available for other matters.

People also have a universal, fundamental right to some level of property ownership. But if you equate that with the obligation never to waive it in exchange for something else (e.g. sell or give their stuff), as the GGGP was doing, then "you're doing it wrong".

There are good reasons to oppose the specific exchange of rights involved in these non-compete agreements. Pointing out the existence of the rights is not one of them, because the entire dispute is about why it should not be waive-able.

You're making shit up.

There's nothing in the legal definition of "right" that implies it must be waiveable. From Black's Law Dictionary: "An interest or expectation guaranteed by law". There are inalienable (or inherent rights) which cannot be transferred or surrendered (though they might be terminated): life, liberty.

And there are rights which cannot be waived. The right to sue, for example, though you might lose your right to trial by jury if you agree to arbitration.

>There's nothing in the legal definition of "right" that implies it must be waiveable. From Black's Law Dictionary: "An interest or expectation guaranteed by law".

I wasn't speaking of legal definitions, just making the uninteresting observation that, if I can't trade a right for something more valuable to me, then it is functionally an obligation, and not the bundle of goodness typically associated with rights. Again, consider the difference between a property right in your apples when you can vs can't sell/give them.

>There are inalienable (or inherent rights) which cannot be transferred ...

>And there are rights which cannot be waived. The right to sue, for example, though you might lose your right to trial by jury if you agree to arbitration. ...

You're assuming exactly what's under dispute. I don't accept that such rights should exist, so asserting that they do tells me nothing more than that you agree with the (IMHO misguided) legal classification certain rights have.

I certainly agree that some rights need a higher standard of proof, waiting period, etc before giving up, to establish that it's valid consent and the person is thinking clearly and so on. (We definitely dont do this right when it comes to police searches.) But that's miles away from certain rights being unconditionally inalienable by the holder.

Have you ever thought about why others should always be able to veto my sale of a right altogether?

Edit: I'd appreciate a more constructive response than downvoting.

I'm not among the downvoters (it's not possible for responses to ones' own posts), but you're continuing to argue for something that's not at all supported under legal doctrine, as well as highly disfunctional in reality, though you're at least doing so under the cloak of personal belief, rather than trying to claim some sort of authority.

Your definitions continue to be fabrications without foundations in broader legal or political theory.

Me: A right you can't waive is burdensome.

You: Well, Black's law disagrees. Under current precedent some rights can't be waived.

Me: But my point is just that such laws are stupid. To the extent that waiving a right can lead to bad situations, the problem is the lack of true, informed consent and so should be addressed at that level.

You: Current legal precent refutes that.

Me: ???

I don't care to get into this debate now because reasons.

But you might want to look up why certain rights are generally considered or legislated to be non-waivable.

Guiding hint: it sets up perverse incentives, creates tremendous power imbalances (and exacerbates existing ones), and, net net, is seen as a negative for society.

You haven't made any points, you've asserted them, backing up along an increasingly narrow and slippery, and steep platform as you're cornered with a set of inconvenient facts regarding your case. Among the reasons I find any discussion with you to be, in all likelihood, to be tremendously unproductive.

So I'm out, but you're welcome to research further on your own.

>But you might want to look up why certain rights are generally considered or legislated to be non-waivable.

I'm intimately familiar with them! It's why I've come to my conclusion: all of the reasons are either confused, would invalidate the right to sell one's apples, or are an issue of informed consent that only justify greater scrutiny, waiting periods, etc rather than a blanket "lol you can't trade that right".

Had you read my responses, you could have articulated -- perhaps even substantiated -- those reasons in your own words the first (not fourth) time around, rather than dwell on the orthogonal issue of how many jurists agree with you. Then we could have had a productive discussion and probed each other regarding the basis for our beliefs, and perhaps learn something from each other.

But as it stands, you chose to condescendingly lecture me about issues that don't speak to those I raised, as per my previous reply.

Next time, would you mind focusing on the substance, rather than on citing Black's Law to refute that "a right ... is not a right" and such?

For example, you could have said something like, "well, inalienable rights can definitely feel like obligations, but capping what people can waive has the following benefit ..." And then gone on about the stuff you're only now saying. See how much more productive that is?

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