Wednesday, March 29, 2017

Walter Block on the Case of the Frozen Trucker

The National Law Journal sets the scene:
The case of the frozen trucker sounds like a Conan Doyle mystery but it has become a focal point in Judge Neil Gorsuch’s confirmation hearings, to the surprise of the lawyers who faced off before the judge—and to the frustration of one of them...

The case is Transam Trucking v. Administrative Review Board, which the U.S. Court of Appeals for the Tenth Circuit—Gorsuch’s home for the past decade—ruled on last year. The 2-1 panel, with Gorsuch in dissent, ruled for truck driver Alphonse Maddin...

The backstory, in brief: Maddin, driving through Illinois, had waited more than three hours in freezing temperatures in an unheated truck for assistance. The brakes had frozen on his trailer. He was fired after disconnecting the trailer and driving off because his feet and legs were going numb. His employer had instructed him to stay with the truck until a repair team arrived or to drive the truck while pulling the trailer with the failed brakes.
In his dissent, Gorsuch said the law only forbids firing an employee who refuses to operate a vehicle out of safety concerns. “The trucker in this case wasn’t fired for refusing to operate his vehicle,” Gorsuch wrote. "The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not.”
I asked Dr. Walter Block for his take. Below is his response:
Dear Bob:

Unless there is a contract in force to the contrary, I think any employer may fire any employee for good, bad, or indifferent reasons. I fully believe in the law of free assocation. In this case, I think the firing was for a bad reason, but, that’s the employer’s choice, and I support the employer. I also think that any employee may quit any job, for good or bad reasons, again, providing there is no contract in force to the contrary. (I support specific performance contracts –voluntary slavery.) See on this:

Andersson, 2007;  Block, 1969, 1979, 1988, 1999, 2001, 2002, 2003, 2004, 2005, 2006, 2007A, 2007B, 2009A, 2009B; Boldrin and Levine, 2008; Frederick, 2014; Kershnar, 2003; Lester, 2000; Mosquito, 2014;  Nozick, 1974, pp. 58, 283, 331; Steiner, 1994, pp. 232; Thomson, 1990, pp. 283-84.

In the view of Boldrin and Levine, 2008, p. 254: "Take the case of slavery. Why should people not be allowed to sign private contracts binding them to slavery? In fact economists have consistently argued against slavery – during the 19th century David Ricardo and John Stuart Mill engaged in a heated public debate with literary luminaries such as Charles Dickens, with the economists opposing slavery, and the literary giants arguing in favor."

Andersson, Anna-Karin. 2007. “An alleged contradiction in Nozick’s entitlement theory.”
Journal of Libertarian Studies, Vol. 21, No. 3, Fall: 43–63;
Block, Walter. 1969. “Voluntary Slavery.” The Libertarian Connection, Vol. I, No. 3, April 13, pp. 9-11.

Block, Walter E. 1979. Book review of Nancy C. Baker, Baby Selling: the Scandal of Black Market Adoptions, New York: The Vanguard Press, 1978; in Libertarian Review, January, Vol. 7, No. 12, pp. 44-45.

Block, Walter E. 1988. “Rent-a-womb market,” Thunder Bay Ontario DailyJune 26.

Block, Walter E. 1999. “Market Inalienability Once Again: Reply to Radin,” Thomas Jefferson Law Journal, Vol. 22, No. 1, Fall, pp. 37-88;

Block, Walter E. 2001. "Alienability, Inalienability, Paternalism and the Law: Reply to Kronman," American Journal of Criminal Law, Vol. 28, No. 3, Summer, pp. 351-371;

Block, Walter E. 2003. “Toward a Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Gordon, Smith, Kinsella and Epstein,” Journal of Libertarian Studies, Vol.17, No. 2, Spring, pp. 39-85;

Block, Walter E. 2004. “Are Alienability and the Apriori of Argument Logically Incompatible?” Dialogue, Vol. 1, No. 1.

Block, Walter E. 2005. “Ayn Rand and Austrian Economics: Two Peas in a Pod.” The Journal of Ayn Rand Studies. Vol. 6, No. 2, Spring, pp. 259-269

Block, Walter E. 2006. “Epstein on alienation: a rejoinder” International Journal of Social Economics; Vol. 33, Nos. 3-4, pp. 241-260

Block, Walter E. 2007A. “Secession,” Dialogue. No. 4; pp. 1-14;

Block, Walter E. 2007B. "Alienability: Reply to Kuflik.” Humanomics Vol. 23, No. 3, pp. 117-136;;jsessionid=0685BBB744173274A5E7CE3803132413?contentType=Article&contentId=1626605

Block, Walter E. 2009A. “Yes, Sell Rivers! And Make Legal Some Slave Contracts” The TyeeJuly 25

Block, Walter E. 2009B. “Privatizing Rivers and Voluntary Slave Contracts” July 27;

Boldrin, Michele and David K. Levine. 2008. Against Intellectual Monopoly. Cambridge: Cambridge University Press;

Frederick, Danny. 2014. “Voluntary Slavery,” Las Torres de Lucca 4: 115-37,

Kershnar, Stephen. 2003. “A Liberal Argument for Slavery,” Journal of Social Philosophy, 34
(4): 510-36

Lester, Jan Clifford. 2000. Escape from Leviathan. St. Martin’s Press.

Mosquito, Bionic. 2014. “The Sanctity of Contract.” April 19;

Nozick, Robert. 1974. Anarchy, State and Utopia, New York: Basic Books,

Steiner, Hillel. 1994. An Essay on Rights, Oxford: Blackwell Publishers

Thomson, Judith Jarvis. 1990. The Realm of Rights, Cambridge, MA, Harvard University


  1. I agree. The proper punishment for the trucker's employer (which may already be happening or have happened) is negative publicity. Other drivers may bail for a company that promises not to be so rigid in enforcing rules when the driver's health is in jeopardy. Potential customers may boycott, and write letters explaining why. Government involvement, as usual, is neither morally justified nor necessary.

  2. All I know about this situation is what's in this post. I think we're supposed to have compassion for the truck driver because he was in an unheated truck and he was getting cold. But, the truck was operable, as demonstrated when he drove away. Why didn't he just start the truck, turn on the heater, and take a little siesta while he waited for the repair truck to arrive? I know, not the point of the article. But, if a solution is that simple, maybe the guy deserved to be fired. Just guessing this wasn't the first straw...

  3. The article says that the truck was unheated. So either there was no heater, or the heater was not operable.

    If the guy had endured frostbite or had died, would the company have been liable for his injuries or his death?

    1. Yes, according to US law the company would have been liable.
      You can have an employee totally disregard all training, all rules, all requirements, crash, destroy your truck, destroy your commodity he was hauling, ruin your contract with the company you were hauling for, cost you hundreds of thousands of $$, all directly his fault, and then turn around and sue you if he got hurt.
      Cause if you hadn't hired him to drive your truck, he would not have wrecked in the first place.
      Insurance companies won't even try to fight it.
      True story.

  4. According to Google, Illinois is an employment at will State: "Illinois is an at-will employment state. Generally, that means that employers can terminate an employee for any reason at all except an illegal reason. One exception to the employee-at-will doctrine is a common law action of retaliatory discharge."

    So, unless the driver had a federally created statutory cause of action or some sort of union or otherwise contract, he had no case. (Granted that the state's carving out some sort of "retaliatory discharge" might be argued, but with not much of a chance to succeed.) I have not read the circuit's reasoning, but fairly clearly the majority created a cause of action which did not exist and, in effect, overturned the common law of Illinois.

  5. I think that there may be situations, such as this one, where there are valid, implicit elements to a contract, which Block is ignoring.

    Consider the following scenario, exaggerated for the sake of example. Suppose you went into a movie theater on a winter day and 5 minutes into the film, the heat went out and the temperature in the theater went to 50 degrees. Would you be entitled to a refund? There may not be any explicit contract that the theater would maintain the building at, say, 72 degrees, but there is a reasonable expectation that the theater will maintain a suitable environment for watching a movie.

    Likewise, an employer is expected to maintain a suitable working space. Now, clearly, this gets a little more complicated in the setting where a trucker is out on the open road. Yet still, it is reasonable for a trucker to expect that he should not have to work under conditions that are a direct and immediate threat to his health and life.

    1. D. Saul Weiner,

      "...Would you be entitled to a refund?.."

      Do you have an answer to this question?