Put in Professor Lobel’s terms, the freedoms at stake are matters of both “exit” and “voice.” As she very nicely sets out, despite the sometimes negative connotations of “quitting,” exiting a job is often a positive act-the beginning of a new, more valuable use of an employee’s talents and labor. My opposition, however, is fundamentally on liberty grounds. One might claim they are transactionally unfair because, in the typical case, employees get very little in exchange for what they are asked to give up. One might claim they are bad economic policy because they lead to a less innovative, less creative economy. One can be against these clauses for many different reasons. We are both among those who recently submitted a petition to the FTC to use its regulatory authority over unfair trade practices to prohibit such clauses. We do not like employee covenants not to compete, especially in the profligate ways they are now being used. I should say right off that, with regard to these noncompete clauses, Professor Lobel and I fundamentally agree as to what social policy should be. That exit and voice restrictions can entail disproportionate harms on women should be understood as rising from several interrelated factors.” In considering the impact of these “interrelated factors,” I am going to focus especially on the most salient restriction affecting an employee’s power to exit: the covenant not to compete against a present employer for a set number of years once the present employment has ended. Moreover, the specific paths of exit and voice are patterned by inequality. Professor Lobel’s thesis in this regard is straightforward: “Restricting exit and voice harms all workers, but its harm to women and minorities is disproportionately greater. Within this complexity, I want to talk about the parts of the article that connect the law of human capital with gender inequality. Her take-off point is Albert Hirschman’s famous essay, Exit, Voice, and Loyalty, but as her article impressively shows, the economist’s “exit” and “voice” are in fact complex ideas with a dense legal structure. As anyone familiar with Professor Lobel’s other work would expect, her article ranges widely and offers insightful connections among what are often considered to be very distinct fields of inquiry. I very much appreciate being asked by the editors of the Houston Law Review to comment on Professor Orly Lobel’s Frankel Lecture entitled Exit, Voice & Innovation: How Human Capital Policy Impacts Equality (& How Inequality Hurts Growth). Another Intermediate Possibility: Looking at Justification An Intermediate Possibility: Looking at “Intent”
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