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The end of the Restatement of the Law of Employment?
May 20, 2008 by Ross Runkel at LawMemo

The Labor Law Trust Group has petitioned the Council of the American Law Institute to terminate the Restatement of the Law of Employment project. Pretty heavy group of law professors proposing that the whole idea simply be trashed.

Here is the petition:

To the Council of the American Law Institute:

The undersigned are professors of labor and employment law in accredited schools of law in the United States. Institutional affiliation is given for identification purposes only; American Law Institute membership is denoted by an asterisk.

We have followed the development of the proposed Restatement of the Law of Employment—notably Parts 3 (on contractual job security), 4 (on public policy as a limit on discharge), and 5 (on employee privacy)—with increasing concern. As with all Restatements, the purpose is to provide simple blackletter rules that better adapt the law to changing social and economic conditions. However, we believe the Restatement methodology, in this setting, to be not only inadequate but counterproductive.

When the idea of restating the law was proposed in 1923, the Report admonished that contentious issues of “social and industrial . . . policy,” such as the improvement of the “relations between labor and capital,” were not suitable for restatement: the ends to be achieved were too much in controversy, the law too much in flux. The 1923 Committee’s insight has continuing vitality today. The velocity of change in the areas of the common law addressed in Parts 3 and 4 has been rapid, the law is still very much in flux. Yet the project proposes to take a firm stand, projecting its rules into an indefinite future.

No doubt the law of employment should adapt to demonstrable social or economic change; but the project fails to engage in any analyses, or even description, of what the changes are that summon the need for the rules it proposes. Part 3 states, for only one example, that an employer should be free retroactively to abandon its unilateral contractual commitment to job security. This is done without any acknowledgement that the role of job security in the labor market of the future is a subject of intense economic and ethical debate. Undeterred, the draft proposes to have the law come down on one side of this contentious issue without acknowledging the existence of that debate, let alone its terms of reference. Part 4 states, for one further example, that an employer should be able to discharge an employee for the exercise of his or her rights as a stockholder in the employing company because these rights do not arise out of employment. This without acknowledging the rich and intense debate worldwide on the role of employees in corporate governance. Again, the draft would have the law come down on one side of a highly controversial economic and ethical question without acknowledging that the controversy exists let alone what the stakes in it are.

The point we wish to emphasize by these two illustrations—only two of a great many more we could essay—is not that we disagree with one or another of the draft’s blackletter rules, comments, or illustrations. The reason we approach the Council is that we believe the whole thrust of the project to be misplaced. We submit that the velocity and direction of legal change in the employment relationship is incapable of being addressed by a Restatement; that the Restatement method, if it proves influential (as the Institute would surely wish it to be), will stultify legal experimentation and growth.

This consequence is evident in the Restatement (Second) of Torts’ provision on privacy, which Part 5 adopts. Although the Restatement of Torts expressly anticipated the growth of the law transcending the categories of privacy it set out, that has not happened. The categories have hardened. As a result, the tort of invasion of privacy has almost no purchase on the critical privacy issues that have emerged in contemporary society generally, nor does it address the most pressing issues in the workplace: deploying sophisticated methods of screening prospective employees; monitoring employee behavior and performance by advanced technology; collecting, collating, and disseminating personal data by electronic means; imposing controls on private life. Of course, these may be ill suited for resolution by tort; but if so, we fail to see any purpose served by restating a body of law that, in the work setting, is largely irrelevant.

There is a need to think afresh about the role of law in the workplace. But the methodology of restatement is unsuited for, and can actually retard what should be a serious effort at law reform. As scholars who have thought deeply about these issues, we strongly urge the Council to terminate this project.

For a list of signers, go here.

Thanks to Workplace Prof Blog for bringing this to light.

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