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Defending a Job Guarantee

Raul Carrillo, Modern Money Network & Attorney

Most contemporary Law and Economics literature treats unemployment primarily as a phenomenon of private ordering and thus primarily a subject for private law analysis. To be more specific, a baseline assumption in Law and Economics is that unemployment is a natural state of affairs for individuals, anterior to the existence of the state. Subsequently, unemployed individuals attempt to match with employers via private agreements, to become employed. They then concretize this private matching via “labor contracts.” To the extent that the state and public law are involved in decisions as to whether or not individuals are employed or unemployed, it is in resolving disputes that arise in the non-government sector of the social order.

Recently, there has been an academic and activist backlash against this sort of thinking. People are beginning to re-assert that law serves a constitutive role with respect to the labor market, as well as a governing role. A synthesis of insights between progressive schools of legal thought -- Legal Realism, the “Social Citizenship” tradition, the Critical Legal Studies movement, and its antecedents – and heterodox schools of economic thought – Post-Keynesianism, Institutionalism, Modern Money Theory – yields a broader, deeper vision of unemployment as a function of legal design. If we can envision unemployment as a social wrong at least partially created and perpetuated by the state, then we might argue that the government has an affirmative obligation to remedy that wrong through guaranteed employment – most notably though a Job Guarantee, a policy that has recently regained political steam.

Good ink has been spilled on the “high level” philosophical approaches to the “right to work at a living wage,” as well as the “low level” administrative musculature of direct job creation programs. However, comparatively less legal analysis has been conducted at the “middle level,” discussing how a Job Guarantee might find roots in case law in the United States and thus be defended in court.

This paper will discuss historical attempts to legislate mass, direct job creation. Moreover, it will analyze lawsuits that were mounted in an effort to force the government to guarantee jobs based on said legislation. Finally, it will ask what Constitutional doctrine might have to say about full employment and a possible guaranteed right to a job.

By-and-large, attempting to force the state to guarantee full employment based on past and present legislation has not proved successful. However, is there a doctrinal approach that treats unemployment as a problem of public ordering and public law? Does any case law illuminate a way forward a Job Guarantee? What does doctrine say about direct job creation, especially concerning rights, administrative accountability, entitlement protections, and even thinking of jobs as “property”? These are all questions we must consider as we advocate for true full employment.