From Judge-Made Law to Scholar-Made Law? The Strange Case of Employment-at-Will in the US

16 Pages Posted: 12 Mar 2018

See all articles by Marco Biasi

Marco Biasi

University of Milan

Giovanni Tuzet

Bocconi University - Department of Law

Date Written: 2016

Abstract

Until 1877, when Horace Gray Wood’s A Treatise on the Law of Master and Servant was published, the rule in matter of termination of the employment relationship in the US was dismissal with notice, pursuant to the British Common Law tradition. On the contrary, Wood “reckoned” that the US rule in relation thereto was Employment-at-Will, which allowed any of the parties to immediately terminate in any case the employment relationship. Notwithstanding the ungrounded nature of Wood’s statement, since then US Courts started to adhere to Employment-at-Will, which became accordingly known as “Wood’s rule”. This constitutes a puzzle for legal theory, for the rule was “invented” but largely accepted by the legal community: it was, on the one hand, a false statement about the legal system but, on the other, a legal truth once accepted. In the present paper we try to make the puzzle explicit and to present a way-out of it, distinguishing a pre-Wood and a post-Wood context. However, such a way-out does not solve by itself the legitimation issue represented by the shift from the first to the second context.

Keywords: Employment-at-Will, Legal Theory

Suggested Citation

Biasi, Marco and Tuzet, Giovanni, From Judge-Made Law to Scholar-Made Law? The Strange Case of Employment-at-Will in the US (2016). Available at SSRN: https://ssrn.com/abstract=3135813 or http://dx.doi.org/10.2139/ssrn.3135813

Marco Biasi (Contact Author)

University of Milan ( email )

Via Festa del Perdono, 7
Milan, 20122
Italy

Giovanni Tuzet

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

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