Tuesday, August 12, 2014

Do We Want To Live In A Third-Best World?

I listened to this NPR story on my way home from work today. The basic facts quickly:
  • A disabled man uses marijuana for medicine. He says it works better than anything else for his symptoms. 
  • The man lives and works in Colorado where the state law allows medical marijuana and where state law prohibits discharging an employee for lawful activities conducted off work premises.
  • The man works for Dish Network, does not use pot while at work, and does not come to work high.
  • Dish Network conducts periodic random drug tests that screen for marijuana, and the test it uses can detect marijuana's THC compound days or even weeks after actual use (the story is slightly murky on this, but I believe it is the case).
  • Dish Network dismissed (fired) the man after his positive test result.
This got me thinking about the world according to a libertarian. Here is the breakdown:
  • In a first-best world marijuana is fully legal. Employers can freely choose to employ or not employ people at their will including considering if they use marijuana on or off premises. Different firms have different policies and people (customers, employees, and everyone else) respond to those policies by respectfully agreeing or disagreeing, engaging or disengaging, and supporting or protesting. This way norms tend to work themselves out and adapt over time. The evolution is completely based on persuasion rather than force. Where disputes come up about rights (always a conflict of negative rights since positive rights do not exist in libertarian utopia), those are handled by a common law process. Again, it is evolutionary from the bottom up. Sadly, we do not live in this world. 
  • In a second-best world marijuana is mostly or fully legal. Employers must adhere to rules governing their conduct as set by a combination of common law and local legislated law, but these rules that emerge from this process are few in number and necessarily local in scope and encumbrance. The relationship between employer and employee is adaptive since it is governed some by rules imposed externally but mostly agreements made between the two parties internally. You'll never have that kind of relationship in a world where you're afraid to take the first step because all you see is every negative thing 10 miles down the road. Hence, we do not live in this world either. 
  • In a third-best world marijuana is mostly illegal. Employers are strictly governed by a multitude of rules set both locally and nationally with little of it coming out of a common law process. These rules are often in conflict with themselves as well as political tensions that dominate at different levels. The environment is ripe for lawsuits since so much is unclear and arguable. And those suits have little hope of bringing precedent-setting resolution or clarity for future disputes. Nothing is ever settled and almost nobody is ever happy with the results. The clarion call for a solution demands a top-down, one-size-fits-all approach that is as arrogant as it is unjustified. Sadly, we live in this world. 
While we work towards a better world that I do believe we can achieve (to wit: No matter what anybody tells you, words and ideas can change the world), we must settle for something less perfect. I hope Brandon Coats prevails in his case under state law. I hope the federal government takes a step back from the employer-employee relationship rather than offer its unhelpful solutions. 

We don't have to live in a third-best world, but it will take people learning to think for themselves. Your move, chief.