On Restating the Common Law of Employee Privacy
Matthew W. Finkin, PRIVACY IN EMPLOYMENT LAW, BNA Press, Forthcoming
14 Pages Posted: 2 Dec 2009
Date Written: October 7, 2009
The American Law Institute (ALI) has circulated the initial draft of the chapter of its proposed Restatement of Employment Law dealing with employee privacy. This essay, which will be the Preface to the third edition of the author’s Privacy In Employment Law now in press (Bureau of National Affairs), takes up the draft’s stated presupposition, its methodology, and the resulting restated principles. It finds fundamental flaws in each as measured against extant law. In a nutshell, the draft is an effort at invention, not restatement. The dilemma it poses for the ALI is that parts of what the ALI has already adopted as a Restatement of Employment Law suffer from analogous infirmities. Thus the approach taken in this draft presents a challenge to what the restatement project is about.
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