Can an Employer Unilaterally Change the Terms of an Employment Contract?

In a whiny blog post at 200 Proof Liberals addressed to his provost, Jason Brennan claims that you can’t enforce a contract which gives one side unilateral and unlimited power to change the terms of the contract. The context is a “compact” that Georgetown’s administration has imposed on students, faculty, and staff regarding the spread of COVID-19.

I’ll let Brennan’s provost respond to Brennan’s foot-stamping complaints, but I couldn’t help laughing out loud at Brennan’s worldly wisdom, offered as an aside, on the subject of employment law.

Further, the document suggests that students, staff, and faculty agree that you can unilaterally change the compact at any time, and that they pre-consent to whatever changes you later make. I don’t know if this document qualifies as a contract in some legal sense, but in general, in legal contracts, even when there is language to the contrary, parties do not acquire the right to unilaterally revise the conditions.

Do employers acquire the right to unilaterally revise the conditions in an employment contract? Contrary to Brennan, in general, they do.

Suppose you sign a contract at a job that employs at-will but also employs the fiction of an employment contract. The fiction of a contract, however paradoxical in appearance, is useful to such an employer, since it gives employees the false security of believing that they enjoy the protections of a contract, and also allows the employer to “hold the employee” to the terms of this contract for the duration of the employment, even if the terms change every other day (or every other hour).

The contract will typically be written in such a way as to look like a contract while simultaneously being subject to the “terms” of at-will employment. So I’m not talking about the special case of at-will employment modified by a contract that renders the employment contractual rather than at will (as in the case of certain high-level executive hires). I’m referring to the ordinary case of at-will employment that features a fundamentally fictional contract–the kind of employment contract that most people unwittingly sign under the false impression that it binds both sides to terms that neither side can unilaterally change.

Since, under such arrangements, you can be fired at will–with or without cause, with or without notice–the employer has the de facto and de jure power to alter any agreement made with you at will. That’s why it’s called “at will employment.” If you don’t comply with a unilateral change to the terms of employment, your employer can (and often will) fire you, and “in general,” you have no legal remedy if that happens, whether de facto or de jure. I wonder whether Brennan has ever heard of an employee that “serves at the pleasure” of the executive (whether in political or business contexts). What does he think that means? The conditions that Brennan finds so onerous and so terrible at his tenured job are the ones that govern virtually all employment all of the time. I’m not sure how it can take someone with Brennan’s arrogance 40 years to figure this out, but I guess it can.

Is Brennan’s ass covered by his carefully legalistic use of the phrase “in general”? No, it isn’t. Most employment in the U.S. is employment at will: Montana aside, at-will employment is the legal presumption in this country. But despite the apparent paradox involved, employment at will almost always requires that the employee sign a contract of some kind–including, in many cases, binding agreements of various sorts before any offer is made, e.g., non-disclosure, waivers of privacy (e.g., consent to drug testing), agreements to look and act a certain way off the job if hired (e.g., no visible tattoos), etc. Agreement is a necessary condition of getting the interview; if you don’t agree, you don’t get it. But once you agree, then if you get the job, you’re told that you keep the job only if you uphold the agreements, which can change at any time.

So the truth is the exact reverse of what Brennan asserts: in general, an employer can unilaterally change the terms of employment, and fire you for your failure to comply with terms that are indefinitely open to revision. This is a fact known to just about everyone except chaired and tenured professors of business ethics and public policy at elite institutions. But it’s a fact just the same.

22 thoughts on “Can an Employer Unilaterally Change the Terms of an Employment Contract?

  1. A fine point: isn’t the at-will employer technically threatening to fire unless a new, different contract is agreed to (not literally unilaterally changing the contract)? If so, maybe Brennan is technically correct (but entirely missing the relevant general point)? Also aren’t such contracts technically just immediately-terminable, not literally fictitious (even if, relative to how the employer can change the terms of the on-going relationship on a dime, the two things are equivalent)? Such contracts, I imagine, function much like my month-to-month lease, though on a much shorter time scale: though I can technically radically alter the lease for next month for a tenant, there is considerable pressure of habit, expectation and sometimes-misguided moral suasion and conscience for me not to do so. At least in many contexts, such an arrangement usefully promotes stable, continued, mutually-understood terms, though this is achieved through incentives or sanctions that are not forcible and legal. The benefits here are not achieved as reliably as through legal sanction (even in the propitious conditions in which they tend to be achieved), but there is also potentially less cost/risk to one or both parties. None of this happens if the contract is literally, through intention or convention, make-believe.

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    • A fine point: isn’t the at-will employer technically threatening to fire unless a new, different contract is agreed to (not literally unilaterally changing the contract)? If so, maybe Brennan is technically correct (but entirely missing the relevant general point)?

      An at-will employer can do that, but need not. Suppose my contract asserts that p, but I’m an at-will employee. Suddenly, my employer starts proceeding on the assumption that ~p. I call him out, and he fires me just for that. Can he do that? Absolutely. In this case, he’s not asking for my agreement to a new contract. He’s just unilaterally changing the old “contract,” and treating dissent as a firing offense. Legally, he can fire me for simply pointing out that the new arrangement violates the old contract. (He can fire me for asking the wrong question on that subject.) Suppose he doesn’t want that said out loud? Then it doesn’t get said out loud. If I do it, I lose my job.

      Also aren’t such contracts technically just immediately-terminable, not literally fictitious (even if, relative to how the employer can change the terms of the on-going relationship on a dime, the two things are equivalent)?

      Depends what you mean by “such contracts.” Suppose I sign a contract for a one-year position. It says, “We are employing Khawaja for a one year position, starting July 25, 2020, ending July 25, 2021, at a salary of $60K, with such and such benefits, and such and such duties.” That looks pretty clear, right? Then it says, in small print, “For fuller list of benefits and responsibilities, consult the employee handbook.” You consult it, and it turns out that you’re an employee at will and you serve at the pleasure of the president. That means you can be fired without cause, even if you perform “such and such duties” in exemplary fashion. It also means that since the president is a hedonist whose pleasures know no limit, there are no limits on what she will demand of you. The list of her demands goes well beyond “such and such duties,” and occasionally (quixotically) even includes reprimands for performing “such and such duties.” That’s just how she rolls.

      In this context, I would say that the contract is a fiction. Worse than being a fiction, it’s an open secret that it’s a fiction. At some level, everyone knows that it’s a fiction. But as time goes on, even the smartest person becomes complacent, succumbs to weakness of will, and starts to half-believe that he’s “on contract.”

      By the way, in a context like that, if you are “promised” a $60,000 salary for a year of work, and are fired after a month, there is no presumption that your salary will be pro-rated if you haven’t been paid yet. In practice, I think most institutions would rather avoid the hassle of litigation, and so, will pay you your pro-rated salary. But things get fuzzy here. In practice, if you’re fired and you were at-will, precisely because no reason was needed to fire you (and no due process was obligatory), any reason can be given ex post facto for the termination. Who could challenge it? The employee has been escorted off site. All of his access to records has been cut off. What if the employers make up a story that he was let go because he made sexually inappropriate comments on the job? Or sexually harassed someone? And for that reason, the institution feels it would be “inappropriate” to pay such a fiend.

      Now what? What attorney would take such a case? And even if one did, what the hell would he do with it? What kind of case is it? Breach of…contract? What fucking contract? You’d probably have to pay double in attorney’s fees to collect what you were owed. Who’s going to do that while they’re penniless and conducting a desperate job search? How would you do discovery if the institution claims that all of the material is proprietary? Maybe there is a route out of this, but it will be incredibly time- and money-consuming. No one who could afford the attorney would end up in this situation in the first place.

      What I find so ludicrous about Brennan’s missive is his belated realization that, you know, the university is making demands of a sort that might induce a lot of people to lie about adherence. You don’t say. Thanks for beaming back down to Earth, Jason. That very practice has been happening now since the adoption of at will employment + fake contracts. Where the hell have you been?

      Such contracts, I imagine, function much like my month-to-month lease, though on a much shorter time scale: though I can technically radically alter the lease for next month for a tenant, there is considerable pressure of habit, expectation and sometimes-misguided moral suasion and conscience for me not to do so.

      Well, I would say that precisely because a month-to-month lease operates on a different time scale, at will employment isn’t that much like a month-to-month lease, but I guess I can meet you half-way here by saying: it depends. A month-to-month lease with Michael Young is probably different from a month-to-month lease with John B. Asshole, Jr. down the street. So what applies to a month to month with you won’t apply to one with him.

      Same with an at-will employment arrangement. It depends on the culture of the institution, and the individuals involved. If you have a healthy culture of honest workers and fair bosses, an at-will arrangement can in practice be indistinguishable from being on contract. But if you’re working in a den of thieves, all bets are off.

      I didn’t mean to be offering an all-in judgment on at-will employment arrangements. They have their pros and cons. My point is that Brennan’s claim about employment contracts is false. You can easily have a contract, duly signed and “executed,” but whose provisions essentially mean nothing because they’re revisable at will.

      Finally, I find his overall complaint pretty fucking childish. Jason Brennan has got to be the only person on the planet who can make me feel sorry for a university administrator. He has the option of coming to campus or not. If he comes, there are conditions. If he can’t or won’t meet the conditions, he can teach from home. I’m sorry–what is the problem here? What exactly is he crying about?

      The rationale for the conditions imposed by the university’s compact is pretty obvious. Suppose I’m a member of the Georgetown staff, dealing with Brennan face to face. Regardless of our mutual caution, there is some risk of transmission on either side. From my perspective, I have no way of controlling Brennan’s interactions with third parties, and yet those third parties could get me sick, put me in the hospital, give me chronic conditions, or kill me (or do the same to my intimates, unless I avoid them, as per the compact).

      It’s not as though, if the worst were to happen, Brennan is going to admit to liability and pay me damages. The issue of liability isn’t going to arise in a situation this cloudy. Contact tracers can’t get voluntary cooperation from people who face complete immunity from liability. No one has bothered to figure out who infected the Felician faculty/staff who died of COVID, much less the relatives of the students who did. People just murmured their condolences, and moved on. And that was despite our closing down.

      So the only assurance the people who come into contact with Brennan have of avoiding adverse clinical outcomes is the justified belief that everyone is following the same risk-averse protocols. (And even perfect adherence to those protocols is no guarantee of anything.) Are the protocols onerous? Yeah. But do they have a clear rationale? Yeah. So Brennan’s whole “I can’t have sex with my wife!” routine just seems deliberately obtuse, as though it’s just a total mystery why the university is imposing the compact on students, staff, and faculty. Brennan’s response to the whole thing is, “Well, I won’t get sick! My expected IFR is low!” Forget the tragic-comic pseudo-epidemiology on display here. The simpler response is: but Jason, the world consists of other people, too. And infection involves more than fatality.

      But whatever: if the conditions are too much, then sit home. You’ll avoid the commute, and you can have as much sex with your wife as you please. Coming from a guy who’s always trying to flaunt his proletarian upbringing, this aggressive sob session about First World Problems seems a bad look. I mean if this is your idea of a problem worth crying about after 4 million cases and 150,000 deaths, you need to take another look at your sense of moral priorities. But I’m not holding my breath, so to speak.

      But as it stands, I will have to choose to teach online and avoid campus,

      If I were the provost, I’d be pretty quick to accept that offer.

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      • “Suppose my contract asserts that p, but I’m an at-will employee. Suddenly, my employer starts proceeding on the assumption that ~p. I call him out, and he fires me just for that. Can he do that? Absolutely.”

        Yes. If unilateral change of terms + firing for objecting is legally allowed, then there is no legally enforceable contract (though still in some sense a contract or agreement). So I suspect you are right (and I was wrong) about the fictionality of the employment contract as a legally enforceable agreement. And there is something dishonest about employment contracts with employment-at-will. Maybe put them in a different form and call them mutual understandings? It makes more sense to me, when there are employment contracts in something like an at-will framework, to have genuine, legally-enforceable contracts of limited-time duration; such employment contracts would be genuine and more analogous to a month-to-month lease, legally speaking.

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        • Unilateral change of terms + a legal right to fire for dissent is not just legally allowed, but the default assumption in 49 of 50 states. Much more so than “cancel culture,” that state of affairs explains Americans’ self-infantilized inability to handle real dissent about ethical, political, and cultural matters. Primarily, they learn this sort of self-infantilization in the workplace, not the university. Universities have started to abandon their earlier commitment to academic freedom, and have now come to follow ordinary workplace norms. That’s why norms of free speech are being eroded there. But universities are following, not leading. It’s not primarily a left-wing phenomenon, but a business phenomenon that any partisan camp can exploit. Right-wingers focus on left-wing malfeasances, and leftists do the reverse. But if you look at it impartially, it’s anybody’s game.

          I agree that contracts + employment at will is dishonest, but that’s just the tip of the iceberg. Dishonesty is a ubiquitous feature of contemporary work life. Hiring, promotion, and firing decisions are a swamp of arbitrariness, deceit, and opacity. I don’t think this is adequately appreciated in the business ethics literature, where discussions about personnel decisions fixate obsessively on issues of racial and gender discrimination.

          https://plato.stanford.edu/entries/ethics-business/#HiriFiri

          But the deeper issue, surely, is the inevitable abuse that arises when people can hire, promote, and fire without trying very hard to have justifiable reasons of any kind.

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          • Not sure hiring/firing decisions are as bad as you say (or precisely how bad you are saying that they are). I suppose that, at a certain point of arbitrariness or immorality, the costs of employment-at-will start to outweigh the benefits. Would love to see a conceptually, morally and empirically informed treatment of the topic.

            I think it is worthwhile, in the discussion of left-wing “cancel culture” and the various issues surrounding it, to speak to workplace cultures that stifle dissent and the effects this kind of thing has on folks’ attitudes and expectations regarding dissent, self-expression, etc. and its institutional or cultural suppression (‘I guess this is how things go out in the world; The Man just gets to shut you down’). You have made this point before on the blog and I am happy to be reminded of it.

            However, I think the reasons for and tactics/sanctions in for stifling dissent (and other sorts of moral policing) matter quite a lot. Understandable commercial reasons and the sanction of losing one’s job (or prime hours or a promotion) are one sort of thing. Unwarranted moral certainty, the judgment that merely using non-preferred pronouns (or perhaps being in the wrong place or nodding along when someone says ‘God damn America’) puts one beyond the pale morally, and moral demonizing and social “mobbing” to drive the offender from polite society — these are quite another sort of thing.

            I think we have different views of what the central or most salient bad thing in “cancel culture” (or specifically modern left “cancel culture”) is. Maybe you are more worried about the sheer stifling of dissent (that you see a lot of in other places as well as in left-dominated contexts) and I’m more worried about the kind of moralizing bad will — typical of the modern left and various forms of fanaticism — that can motivate the stifling of dissent (and as well the “moral policing” of other things taken to be beyond the moral pale)? Not here and now, but at some other place and time, I would like to say more about what I take the fanaticist witches-brew of moralizing bad will to be (and the background conditions in which it exists) — and why I think this is the central matter of moral concern in evaluating left-wing (and to some extent right-wing) “cancel culture” and other manifestations of fanaticism.

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            • It’s an axiom of the job recruiting process that the candidate will be asked, “Why did you leave your last job?” It’s also an axiom that any answer that casts your previous employer in a bad light will disqualify you for the position you’re seeking, regardless of its truth. The process doesn’t just incentivize lying and penalize candor at the outset. It does so while claiming to want to “get a better sense” of the candidate and while hypocritically trumpeting the virtues of honesty, integrity, etc. It’s as though HR managers were snowflakes who melted at the mere suggestion that employees ever leave employment because employers engage in wrongdoing. Better to hear that the candidate thought they could “add value” or “seek growth opportunities” by changing employment venues (“I thought I might add value by seeking growth opportunities in a new space”).

              I don’t see why cancel culture is worse than that. Whatever its faults, cancel culture is more honest and straightforward than HR culture. The advocates of cancel culture come straight out and tell you that certain things are evil, that those things shouldn’t be promoted, that cancellation is a peaceful and effective means of subverting evil, and that the duty to subvert evil overrides other considerations. That can easily be misapplied, but none of it is wrong in the abstract. Even when misapplied, it isn’t nearly as dishonest as the pretense the governs HR culture.

              And in some cases, it’s a perfectly legitimate response to the apathy, inertia, and skepticism that seems to afflict people when they’re obliged to stop talking the talk and start walking the walk on matters of justice. Look at the exchange I had with “kakatoa” in the post on the ABCs of occupation. Think of how easily the corporate executives he mentions could have come up with “understandable commercial reasons” for keeping their supply chains in apartheid South Africa. But they didn’t. Someone had to stand up in some meeting, and say, “Look, this is bullshit. We can’t keep promoting apartheid in this way.” But if you get fired for suggesting that Corporate got something wrong, then you have to sit there and rationalize the company’s actions indefinitely, no matter what evil you’re promoting. Cancel culture is a useful counterweight to rationalizations of that kind.

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              • When I hire someone (or when I screen tenants), I’ll always ask about relationships with previous employers or landlords. Typically, I get references and actually talk to the previous employers/landlords. If the answer I get is some version of “I left on bad terms,” I’m wary. Could as easily be a problem with this person as a problem with the previous landlord/employer. If I have another candidate, otherwise equal or better, I’ll go with that person. If this is known and expected, there is a certain chilling effect on mentioning bad past bosses and landlords. If this chilling effect is strong enough, and I know it, then, at a certain point, I might just go through the motions in asking about past bosses or landlords — and just get the information myself through some other means. This sort of thing is, I think, primarily a failure in social dynamics, a failure in the kind of expectations and norms that come to govern a type of relationship or institution. Once this kind of failure gets going, at least if the moral failure is quite bad and one knows it, one has a moral responsibility at least to call it out and mount some token resistance.

                Complacency about and complicity in something like this that is obviously evil — well, if that description fits, then we owe everyone (or all participants in the process) some response to such social-relational, institutional failures. Complacency about and complicity in everyday bullshit — I don’t much waste my time on that and I would not urge others to as a matter of general advice. The question is where to draw the line (and what to say, both universally and objective and personally, about the borderline or uncertain cases). I hate flagrant disregard for the truth (and hypocrisy) in any given respect and in any given context, but I take this to be a personal thing, not a universal concern for all — except in special cases and until and unless it reaches a certain point as a general cultural phenomenon. For this reason, I would hate the job recruitment process as you describe it, but I would not say that it is evil. It is not clearly a case where everyone needs to “get up, stand up, stand up for your rights” or anything like that.

                (If I have time, I’ll say more about present left-wing cancel culture — and more generally the phenomenon of morally policing the bounds of what is acceptable in speech, expression, thought, behavior, etc. — later.)

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                • If the answer I get is some version of “I left on bad terms,” I’m wary. Could as easily be a problem with this person as a problem with the previous landlord/employer.

                  I find that close to incomprehensible. Take the case where you don’t know the facts beyond what the person tells you. If the person left on bad terms because the previous landlord/employer really was at fault, then you’re being needlessly wary of someone who’s telling the truth. On the other hand, if the person left on bad terms but tells you that they left on good terms, you’re credulously believing them precisely because they know what lie to tell you. I guess I don’t see the point. What truth do you expect a question like that to track? In a good portion of cases, you’re knowingly setting out to disbelieve truth-tellers and believe liars.

                  I guess I’d say that a practice doesn’t have to be evil to invite resistance. Ordinary corruption–lying, cheating, stealing, hypocrisy, etc.–probably doesn’t qualify as evil, but it gradually eats away at social trust. And a society without social trust is a pretty miserable place. I mean, imagine a society in which every third person acts like Jason Brennan. It may not be evil, but who would want to live there? Littering, careless driving, and rumor spreading aren’t evil, either, but I don’t think they should invite complacency.

                  “Complacency about and complicity in everyday bullshit — I don’t much waste my time on that and I would not urge others to as a matter of general advice.” Forget bullshit. What about complacency and complicity in a more everyday form of shit? Dog shit. You’re telling me that if someone’s dog shits on your lawn, you’ll just sit and watch? It’s the kind of thing that literally happens every day. It’s not evil, but it’s got to stop.

                  One implication of this discussion seems to be that whole swatches of contemporary life–employment relations, LT relations–flout the most basic norms of of truth-telling. In that light, the fixation on cancel culture strikes me as a gigantic misallocation of moral priorities.

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                • That’s helpful (your July 27, 6:53 pm response).

                  (1) I’m not imagining that my landlord/tenant or employer/employee hiring situations have broken down to the point of the practice/relationship being a farce of hypocrisy. But some of the dynamics are there for this to happen. So most tell the truth, there are not many good liars, I don’t believe many lies about this. I don’t end up disbelieving many truth-tellers either — I just ask more questions and get more information. I’ve rented to people who had shitty previous landlords and they’ve told me about it. Point is just that I have an incentive to reject folks when I’m not sure but they could have had disputes with past landlords and been at fault. This, if done by enough people in my position and given other non-propitious conditions (e.g., if all landlords had to deal with previous landlords who were property management companies that do not reveal anything except whether the tenant paid her rent on time), could result in a collapse into hypocritical farce.

                  (2) You are right that a practice does not have to be evil to invite (or require) resistance (and urging or requiring others to resist) — that is just the easy case. We might define a broader category of mandatory resistance to this sort of thing like this: complying with the practice goes against a basic moral obligation either naturally (e.g., norm according to which rape is justified in certain circumstances) or conventionally (e.g., around here, a mandatory element in respecting other people is not allowing one’s animals to shit on their property). By way of contrast, I think much context-specific lying and hypocrisy, even if morally non-ideal, makes sense for the parties involved (there are good reasons or incentives at the level of individual action) and neither naturally nor conventionally contravenes some basic moral obligation.

                  As I’ve framed things, the important question would be just what the content of any basic moral obligation to tell the truth is (your “basic norms of truth-telling”). I don’t have a well-worked-out answer here, really just my intuitions. One of my intuitions, already expressed in the last sentence of the last paragraph, is that if I’m stuck in a social situation or practice in which dishonesty is required to achieve important goals, it is often okay (if regrettable) to lie. Another is that it is better if — as usually happens once a morally flawed practice gets established — everyone knows what is going on and goes through the motions in a semi-hypocritical manner (this might explain the ‘often’ in my first intuition). This picture makes sense because, when we lie and everyone knows that is how the game goes, quite plausibly, we avoid violating the basic norm of truth-telling (however, precisely, we characterize this) in the lying. By way of contrast, think of one lying in accord with the rules of such a practice, but in doing so taking advantage of someone who is uninitiated and naive… Maybe or maybe not is my framing here entirely on-target, but we do need a distinction between something like: (a) morally bad practices that one has reason (and would admirably) take it upon oneself and urge others to make better and (b) immoral practices that one is morally required to resist (and warranted in directing moral outrage toward others for their complicity or complacency).

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    • Apropos of Brennan’s post, read the NYT article I posted below. I just wish someone were capable of speaking directly to Brennan to tell him what utter horseshit this is:

      I was on the fence about teaching in person this year. I am 40-years-old, have no co-morbidities, and on the best estimates, have an expected IFR of maybe 0.01%. I am one of the faculty least at risk. But as it stands, I will have to choose to teach online and avoid campus, because if my in-laws decide to visit on Thanksgiving break (after 11 months of all us practicing radical social distancing), I will have to have agreed that we must all wear masks except when alone in our individual rooms.

      If he was on the fence, all that’s happened is that he’s been nudged a bit to one side. But the rest is Flat Earth Epidemiology, particularly this: “I am 40-years-old, have no co-morbidities, and on the best estimates, have an expected IFR of maybe 0.01%. I am one of the faculty least at risk.”

      First of all, Brennan’s own view is that our “best estimates” aren’t all that good. Now, on an ad hoc basis, it seems that the best epidemiological estimates are good enough to make predictions about clinical outcomes in an individual case. How did that happen? What changed, except for Brennan’s polemical purposes?

      Second, there is no such thing as a reliable “expected IFR” for an individual in a superspreader environment–and a university is such an environment. An IFR is a population variable. To wrench it from claims about populations and apply it to individuals in highly specific contexts is to commit a fallacy of division. This fact is now increasingly being recognized with respect to the misuse of R, but it’s also true of IFRs. (I’m not sure I can get the link to work, but see David Adam, “The Limits of R,” Nature, 16 July 2020, which is online).

      Third, why would anyone trust Brennan’s say-so that he has no co-morbidities? To be certain of the veracity of that claim, we’d need to see his medical records. Is he going to make them public? Even the medical records might be incomplete or inaccurate or unreliable. He’s the one who keeps harping on the defective epistemic methods of medicine as compared with economics. So why think that Jason Brennan’s medical records track the truth nearly as well as…oh, I don’t know…one of Tyler Cowen’s blog posts? Why take his private medical records on faith (assuming they even exist)?

      During the adjunct justice controversy, I asked Brennan pointblank how long he’d worked at GEICO; judging from the way he’d talked about it, one got the impression that he’d worked there for years. It turns out he worked there for six months. That’s what he’d been making such a bloody big deal about. A person as prone to exaggeration as that can’t be believed simply on his say-so on a matter of life-and-death.

      Fourth, even if we waive all of the preceding, an IFR says nothing about morbidity or hospitalization rates. But those are of obvious clinical significance, as you’ll see if you read the article below.

      Fifth, as one of my COVID-19 Narratives made clear, even physicians wearing PPE and exercising the utmost care have been infected despite their every best effort. There is no reason to expect that kind of care in a university setting. And there’s no evidence that full adherence to the strictest protocols will prevent community transmission in a superspreader environment. So I would discount Brennan’s confident nonsense about low expected individualized IFRs. It’s meaningless claptrap.

      https://irfankhawajaphilosopher.com/2020/04/08/covid-19-narratives-3-a-physicians-view-of-the-front-lines/

      Finally, Brennan’s whole focus is on the risk to himself, as though he was the crown jewel of Georgetown University, and all that mattered was what mattered to him. I guess it’s quixotic to hope for Brennan to impose limits on the expression of his own malignant narcissism. But it doesn’t hurt to ask.

      You can see why they don’t have comments at 200 Proof Liberals. What would do they do with a comment like this?

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  2. Brennan:

    I don’t know if this document qualifies as a contract in some legal sense, but in general, in legal contracts, even when there is language to the contrary, parties do not acquire the right to unilaterally revise the conditions.

    Marital vows regularly include language to the effect that one agrees to stay with the partner “in sickness and health.” Yet spouses regularly file for divorce when the burdens of care for a sick spouse exceed what they want to handle. In the absence of a pre-nuptial contract specifying otherwise (and I’m not even sure such a pre-nup would be enforceable), the divorce goes through. In principle, the divorcing spouse can get a better settlement than the divorced one. How is a marital vow any less of a contract than a university “compact”? And how is it possible unilaterally to escape its requirements by divorce if the terms of a contract, once entered, can’t be changed unilaterally?

    Even simpler case: If one spouse gets sick, and the other spouse just simply announces that the sickness is not his problem, refusing to support the sick spouse, then the latter spouse has unilaterally changed the conditions of the marital vow. Does Brennan think this doesn’t ever happen? The obvious truth is that parties to an agreement acquire the right to unilateral revision all the time based on asymmetric bargaining power. They just unilaterally change the agreement in the full knowledge that there is (whether de facto or de jure or both) no legal remedy for such a unilateral change.

    Even in cases where there is no unilateral revision to the conditions of a contract, the contract can be written so loosely as to allow just about anything consistently with its “terms.” So Brennan’s comment seems sanguine at best.

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  3. We ran out of space up there, so I’m responding to your July 29/6:08 pm comment down here. I guess I’m unconvinced. In fact, this is an old problematic for me. I know you’re neither an Objectivist nor a libertarian, but when we were part of that milieu, I was perennially baffled by the way people conceptualized lying versus force-initiations. When it came to lying, the claim was: if the stakes are high enough, feel free to lie to achieve your values. But when it came to force initiations, the claim was: emergencies aside, the stakes can never be high enough to achieve your values through force. But since lying and force belong to the same moral genus–methods of interaction that bypass rational agency and consent–it’s always been unclear to me why the norms that govern the one should be so at odds with those that govern the other. Either both should be subject to the same sort of stringent prohibition, or both should be done on a case-by-case basis.

    Granted, as I say, you’re not an Objectivist or a libertarian, but the position you’re taking reminds of the ones I used to hear (and still hear).

    On issue (1): I don’t see you’re in a position to know what you claim to know about the veracity or falsehood of your would-be renters or employees. If they have an incentive to lie, then short of an all-out investigation that chases down every detail, how would you know who’s lying and who’s telling the truth, and in what proportion? To imagine that you know just seems to me an unwarranted assumption. You don’t know. “Point is just that I have an incentive to reject folks when I’m not sure but they could have had disputes with past landlords and been at fault.” I think it’s less an incentive in any truth-tracking sense than a sheer gamble. In fact, half the problem with the whole situation is that it gives everyone involved the illusion of having knowledge that no one actually has.

    On (2): I think the irony is that in (1) you’re denying that the situation has collapsed into a hypocritical farce, and in (2) you are admitting that it has! How much more hypocritical would things have to be before you regarded them as at the point of collapse and farce? What you’re describing in (2) is a hypocritical farce!

    I agree that we need to give content to the norms of truth-telling, but there is also such a thing as lapsing into moral skepticism–or demanding Cartesian precision–at the very moment when moral action is required. Consider the way that libertarians now like to talk about “liberty.” They’ve quietly jettisoned talk of the “NAP,” and replaced it with “the presumption of liberty” (see Huemer’s Problem of Political Authority, p. 174, or Brennan’s Libertarianism: What Jason Brennan Thinks You Should Know). The view is that our rights against encroachments on liberty are strong but defeasible. The most obvious set of defeaters arises in emergencies. Maybe there are others. The content of the “presumption” is not entirely clear or determinate, but what’s clear enough is that the presumption against rights violations is fairly strong. One can’t casually violate rights or liberty on an ad hoc basis, even if one hasn’t worked out the whole list of defeaters. (I’m guessing that if there is a presumption in favor of P, it’s more important to adhere to P than it is to work out and accommodate the whole list of defeaters to P.)

    But now compare your intuition about truth-telling with their presumption of liberty:

    One of my intuitions, already expressed in the last sentence of the last paragraph, is that if I’m stuck in a social situation or practice in which dishonesty is required to achieve important goals, it is often okay (if regrettable) to lie.

    That intuition simply guts honesty altogether. There isn’t even a defeasible presumption of truth-telling left there. If that was the intuition that people carried around with them in their daily lives, I think we’d have to conclude that we live in a den of thieves. You’d have to assume that anytime anyone opened their mouth (about anything), they might be lying. In a society like that, trust would simply be impossible. After all, the intuition is just a self-fulfilling prophecy: if everyone thinks they’re “stuck in a social situation in which dishonesty is required to achieve important goals,” it will almost always be OK to lie. Soon, lying will become second-nature, at which point the “regret” will evaporate. How is that not already a hypocritical farce?

    This seems to me to underscore the point I was making in the first place. If moral complacency erodes social values like trust, concerted resistance is required–not even so much to have any discernible effect on society, but to keep one’s hands and conscience clean of the sheer corruption that pervades it. For that reason, I don’t see any significant action-guiding distinction to be drawn between (a) and (b) at the end of your comment. If you live in a society of liars, you have to be vigilant about their lies, about your own, and about their tendency to draw you into theirs. All of it requires a simultaneous application of both (a) and (b).

    I happened to be reading Christine Montross’s book, Falling Into the Fire: A Psychiatrist’s Encounters with the Mind in Crisis. At one point in the book, she’s describing an interaction with a supervisor (p. 41):

    During my third year as a medical student, a notoriously demanding and demeaning surgical attending physician had gathered a group of us together to ask for feedback on our experience of the surgical clerkship. Though we all had found it both unnecessarily grueling and poorly organized, my peers dutifully offered enthusiastic praise as the attending went around the table, soliciting comments. When he reached me, at last, I offered constructive criticism that was honest and fair. He was silent for a moment and then responded.

    “I don’t know what you’ve heard about how you’ll be graded in this clerkship,” he began quietly, then gestured to his shoes. “But those are the feet that are connected to the legs that are connected to the ass that you should be kissing right now.” He paused for effect, then continued. “Do you want to rethink your feedback?”

    The attending physician manages to be honest about precisely one thing: he’s a power-hungry, egomaniacal asshole who can’t handle criticism. The difference between him and a huge number of supervisors in the workplace (and lots of people in power elsewhere) is that they share his character traits and motivations, but lack even that much honesty. Montross doesn’t say how she got out of the situation, but it strikes me as obvious that the answer to the supervisor’s question is always “No, not on those grounds.” Nothing will change until they start hearing that out loud. And things have to change.

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  4. Some quick replies:

    (a) More accurately, my relevant intuition would specify conditions in which the lying (or other normally-suspect behavior) is not only required but expected as part of “how these things go.” That speaks more to the sorts of situations we have been considering. I suspect that this formulation, as well as the previous one, need not destroy any recognizable norm or practice of truth-telling — but this depends on how different variables or values in the formulation are filled in. Even if the modified formulation is still off (or under-specified or otherwise flawed), the intent here is something analogous to the libertarians’ strong presumption in favor of not doing the thing (and hence still a genuine prohibition against lying).

    (b) There is complicity in suspect norms/practices that itself involves violating fundamental moral obligations. I think you are thinking of cases like this, with regard to lying. These cases are easy (once you have determined that the case is of this type): you don’t do the prohibited thing. However, I was thinking of these cases more in terms of participation or complicity in morally bad norms, where that participation does not itself constitute violating some fundamental moral obligation. So the important question is: what are one’s reasons — and duties — with respect to avoiding such complicity? I think one’s duties here are pretty minimal. Maybe something like this: the duty to do one’s part once an ameliorative collective-action plan is underway (or at least available) and the duty to take measures (like disapproving, at least internally; or if one can, removing oneself) to avoid being corrupted by the situation. I do think that, in this kind of situation, one has pretty strong moral reason not to be complacent, not to be complicit, to resist — and that one is admirable for doing or not doing these things.

    (c) What I cited from my own experience was meant to show that these non-ideal or corrupt arrangements can be based on good, or at least understandable, reasons that each individual involved has. However far or not-far morally “downhill” our norm- and expectation-generating ball rolls, it gets started here with a justifiably-suspicious employer or landlord, in a materially and legally vulnerable position, really not wanting to be chained to a problematic person. And playing the odds with little good and easy-to-get information available when an applicant says something like ‘my previous landlord was a jerk and hassled me all the time’. In that case, I’ll ask a few more questions (and try to talk to said landlord) — but I’m waiting for clear, compelling evidence that the prospective tenant was not even partially at fault in a substantive way. If I conclude that there is a 10% chance that her dispute with her landlord was largely or substantially her fault? Too much risk. So you start with this real-life scenario and then tweak it with relevant hypothetical conditions and reasonable-enough mutual responses in the right way (such that it makes good sense for the prospective tenant or employee to dissemble on this question and this becomes expected) — and then you have the sort of hypocritical farce you are decrying in the professional job-recruitment process.

    I think we have been doing a fair amount of shifting between related topics and talking past each other — I hope this helps.

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    • I don’t think we’re talking past one another. I think we’re just flatly disagreeing.

      The discussion began with my criticism of the norm that job candidates on the market ought not to speak ill of their previous employers in the job-seeking process, even if the previous employer fully deserves every word of the ill that the job candidate might assert. The inference that employers draw is that a job candidate who speaks ill of a previous employer is in some vague sense “trouble,” and therefore not worth hiring despite any other consideration in favor of hiring him. Speaking ill of the previous employer disqualifies you from a job on its own. It’s a sufficient condition for disqualification.

      I think this norm is obviously, flatly wrong. There is no justification and no excuse for it at all. For one thing, it incentivizes lying, which strikes me as both self-defeating and immoral (assuming that there’s a sense of immorality not reducible to self-defeat). It’s also utterly hypocritical. The would-be employer is not going to be held to any such norm. The candidate can’t badmouth the previous employer, but the previous employer can badmouth the candidate–indeed, is asked for candor on that very subject. “Any red flags about Joe?” –“Why yes, Joe has this thing for pretty blonde secretaries, and never quite internalized the sexual harassment policy.” So much for Joe.

      The most benign motivation for this norm is that it’s a time-saver. HR is burdened with more applications than it can handle, a consequence of the whole online job search phenomenon, where a single job announcement on LinkedIn gets mobbed within half an hour. So HR is just looking for any excuse to throw resumes or applications away. It’s become an open secret that all or most hires nowadays are in some sense internal hires. HR wants a known quantity, where “known quantity” can just be a candidate for whom someone inside the organization can personally vouch and go to bat. If anything goes wrong with the candidate, that person (who himself may know nothing about the candidate beyond BS) will get the blame.

      But even the most benign interpretation is immoral. It’s just a disguise for a form of nepotism.

      This was the context in which you brought up the landlord-tenant analogue of the same norm. The landlord asks the tenant if the tenant’s had problems with the previous landlord, and the default assumption is that if she (the tenant) has, she’s trouble in just the way that Joe was above.

      So far, I don’t see why. The two cases strike me as parallel. Both HR in the one case and landlord in the other are doing basically the same thing. And it’s wrong in both cases for essentially the same reasons. Both parties are relying on evidence that isn’t even in the ballpark of truth-tracking. For reasons I don’t get, both parties think there is something vaguely truth-tracking about their procedures, or think that some value overrides truth. But there’s nothing truth-tracking about their procedures. No plausible conception of epistemic justification would license either set of inferences. And if truth-tracking is playing second fiddle to convenience, this is a case where the consequences are harmful. The norm strikes me as obviously unfair in both cases. It would be more fair for both HR and landlord to admit that the evidence is weak but the stakes are high, and flip a coin or use some luck-oriented procedure to make the decision. That’s not likely to be truth-tracking, but at least it’s not epistemically corrupting.

      Imagine that the roles are reversed. A would-be employee sits for an interview with a well-dressed, well-heeled female HR manager. It turns out that she (the HR manager) has gone to Vassar. So the candidate infers, “Oh, she’s a Vassar girl,” where that means “She’s a rich spoiled, entitled, bitch with her fucking Manolo Blahnik shoes,” etc. and uses that assumption to structure the rest of the discussion. Even if there was a 10% chance of the latter claim being right, that inference is unjustified and the belief unwarranted. You can clean up the stereotype, but that just makes it subtler and more insidious.

      Or would-be Renter Rebecca is deciding between two apartment complexes, and discovers that Landlord Laura is a Republican. So Rebecca infers that Laura is probably greedy, hence a chintzy, crappy landlord–and picks the other complex on that basis because it’s run by Darcy the Democrat. Again, a 10% probability of correctness doesn’t help this inference. It’s hopeless no matter how you slice it.

      Not far from my house, there’s a guy who’s so fanatical a Trump supporter that he’s decked out his entire front yard with American flags interspersed with Trump 2020 flags. (I’ll take a picture of it next time I drive by.) I think it’s fair to infer that politically speaking, he’s an asshole. And at some level, morally speaking, I think you have to be an asshole to have such political commitments at this point. But that inference only goes so far. He also happens to be selling his Harley Davidson. It wouldn’t be legitimate for me to infer that because he’s a Trump supporter, the Harley is probably a lemon. I might not want to buy his Harley because I don’t want to benefit a Trump supporter, but that’s a different sort of consideration. What I can’t do is engage in a misinference, then justify it on grounds on convenience, then treat the misinference as though it was a legitimate inference. “He’s a Trump supporter, so I bet the Harley is a lemon, so I’m not going to buy it, because I don’t want to be saddled with a lemon.”

      But that is what the “he/she is trouble” inferences sound like to me. The job candidate or would-be renter badmouths the previous employer or landlord. Now you talk to the previous employer/landlord, and they, in turn, badmouth the candidate or renter. If all we have to go on is testimony of roughly equal antecedent credibility, the second step doesn’t help. Now you’ve got two semi-plausible (or implausible) but inconsistent stories to adjudicate, and no actual means of adjudicating them. What happened to the “convenience” rationale? You’ve now been drawn into a dispute whose merits you can only decide by means of a totally inconvenient inquiry.

      Solution: ignore the “norm.” It makes no sense in any context. If the candidate bad mouths the past employer, note it. If it somehow becomes relevant, follow up on it. If something confirms or disconfirms it, note that. If nothing confirms or disconfirms it, set it aside. But I don’t see any reasonable justification for disqualifying the candidate because she’s badmouthed the past employer. Likewise in the landlord-tenant case.

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      • If the stakes are high enough, the 10% chance of the applicant being trouble is just fine from a decision-theoretic and personal pragmatic standpoint, right? Maybe it is not from a moral standpoint, insofar as one is relying on a generalization (perhaps or perhaps not a stereotype, perhaps or perhaps not a vicious stereotype) to judge an individual (and insofar as this is not fair). I’d say, yes, the pragmatically justified decision and policy is not fair, at least in an important respect, but that is not a defeating consideration. We often rely on such generalizations (and can hardly help it), and though it is usually justified if not morally ideal or perfectly fair, we should avoid doing so when the cost is sufficiently low — and we should certainly not allow such a policy to ossify into a negative stereotype that plays into a psychology of tribalist “othering” (very far into this territory and I think we run up against genuine moral prohibitions). I’m pretty sure we disagree here. I think your position is that, even if there is a sense in which the “10% chance you are trouble rules you out (or counts very strongly against you” is pragmatically justified, it is not fair and therefore not morally justified — and therefore not justified all-in.

        I take the public norm corresponding to this policy — this kind of policy becoming standard in something like a hiring practice — to be a distinct issue. (For simplicity, set aside for now the likely responses resulting in a whole set of non-ideal or dishonest practices coalescing around this norm.) Is this an unfair situation because one is not to be judged on one’s individual characteristics? We both say yes. Is one, because of this, obligated not to comply with (or be complicit with) the norm? I’ve been saying ‘no’ and you ‘yes’, but quite a bit turns on what is meant by complicity. I’m happy to say that one is obligated to disapprove and do one’s part to ameliorate, if such a part is available — but I don’t think one is obligated not to play along behaviorally (and so it is okay to literally comply and justified if reasonably strong personal or pragmatic reasons favor doing so). This seems to be where we disagree at the level of unfair public norms, expectations, etc. (We could throw this issue into sharper relief — distinguish it more clearly from the individual policy and considerations for/against — if the person facing the compliance question is just someone in a bureaucracy for whom there is no personal, pragmatic justification one way or the other for such a standing policy (the policy is simply in place and functions in a certain way, viz., avoiding situations regarded by the system or those in charge as too risky to have a 10% chance of).

        I also think that, for you, the two cases (engage in the personal policy, play along with a standing policy with the same content) are the same with respect to their moral wrongness. I think that in neither case is it morally wrong to comply with the personal policy or standing norm, but also that importantly different issues arise in the two cases.

        So, yes, on these issues, we are simply disagreeing. We might make some progress (or at least not be simply asserting our different positions) by saying more about why (or why not) a given moral valence (reason, strong reason, obligation, etc.) attaches to treating people as members of general classes of people rather than simply as individuals. And similarly for lying, coercion and the more general category of (roughly) interacting with others or getting something from them while by-passing their rational faculties and consenting or allowing attitudes. Pretty foundational stuff with respect to both normative ethics and the nature/structure of morality (metaethics).

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