50 Pages Posted: 30 Apr 2009
Date Written: April 29, 2009
The validity or invalidity of the core provision raises a substantial question of whether there should be a Restatement of Employment Law at all at this time. Certainly, the action of a reputable organization such as the ALI issuing a document that this particular statement of the at-will rule is the law, if in fact it is not accurate, would be damaging to the long-term common law process of refining rules by evolution. This is especially true in this circumstance, where only after a long period of judicial inaction while the rule had fallen into virtual desuetude, from the late nineteenth century to the late twentieth century, forty-nine state supreme courts have begun again to work out new rules in the evolutionary process which is the common law. Thus, the ALI’s assertion that the at-will rule “is” the law today, if, in fact, the law is in considerable flux, would be inaccurate. State judicial acceptance of the assertion would be counterproductive to the common law process. There are circumstances where the best tradition of the Restatement, out of respect for the developing common law, would be to forebear from attempting to restate a law that is still changing. From a close reading of the cases of many jurisdictions, this is one of those circumstances.
Keywords: ALI, Restatement of Employment Law, employment at will, common law, contracts
Suggested Citation: Suggested Citation
Finkin, Matthew and VanderVelde, Lea S. and Corbett, William R. and Befort, Stephen F., Working Group on Chapter 2 of the Proposed Restatement of Employment Law: Employment Contracts: Termination (April 29, 2009). Employee Rights and Employment Policy Journal, Vol. 13, No. 1, 2009. Available at SSRN: https://ssrn.com/abstract=1396717