The End for Non-Compete Agreements in Massachusetts?

There's a movement is afoot in Massachusetts to legally ban non-competition agreements just as California has done a long time ago. This has created quite a buzz within the entrepreneur community (see also altgate.com and innoeco.com). Having started my career in Silicon Valley, I had always found non-competition agreements to be rather odious, but had to accept them when I began practicing in New England where they are usually an absolute requirement for working in a tech start up. Most tech companies in New England require everyone from the CEO down to the receptionist to sign a non-competion agreement. I must confess I even managed to successfully enforce a non-competition agreement against a former employee while serving as general counsel for a local startup (Entrepreneurs please forgive me!).

The argument for non-competition agreements is that they are really designed to prevent particularly unethical employees from leaving one company and taking that company's secrets to a competitor (and since you have no idea who these bad apples will be, you make everyone sign one). While it's true that confidentiality agreements are designed to protect against this risk, the reality is that confidentiality agreements are difficult to enforce, while it's certain that if you can prevent a former employee from working for a competitor, you're likely to prevent the transfer of company secrets. And given the cost and difficulty of enforcing non-competition agreement, companies would generally only seek to enforce a non-competition agreement in the most egregious cases.

Arguments against non-competition agreements:
- Non-competition agreements make New England companies less competitive with companies in California, where non-competition agreements are unenforceable as a matter of law. I've actually participated in negotiations with prospective employees where the non-competition agreement becomes an issue between choosing a job in Silicon Valley versus a job in New England (though lifestyle and weather are probably bigger factors). Why make it any harder to keep talent in Massachusetts?
- It's just wrong! It's bad public policy to prevent people from working where their talents are most valuable. In fact, courts in Massachusetts and other states where non-competition agreements are enforceable are generally reluctant to enforce non-competion agreements as a matter of public policy.