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A familiar trope in both scholarly writing and folk wisdom suggests that so long as workers are free to choose from among some reasonable set of options, the law should avoid regulating these options to the greatest extent possible. In this Article, I examine the similar “escape plans” proposed by John Stuart Mill and Thomas Jefferson as putatively sufficient legal intervention to relieve the plight of wage workers. My focus differs from that of Prof. Justin Schwartz, who offers, in a recent paper, a detailed and cogent discussion of the reasons why Mill’s prediction, in particular, for the “probable futurity” of workers turned out to be so inaccurate. Instead, I concentrate on the normative question whether either Mill’s or Jefferson’s proposal could have satisfied the demands of justice if it had come to pass. I conclude that no matter how attractive a given “exit option” might appear to its proponents, the law cannot, merely by making the option available to workers, sidestep its obligation to regulate wage labor and other working relationships and ensure that they are just for all concerned.

The Escape Plans of Mill and Jefferson: Why the Law Must Do More for Workers