Shoring Up the Citadel (At-Will Employment)

Abstract

The third draft of parts three and four of the proposed Restatement of Employment Law was circulated in April, 2006. The draft was prefaced by a statement of the Executive Director of the American Law Institute explaining the project's purpose: to simplify the law, to clarify the doctrine underpinning it, and to bring the law into line with evolving economic and social developments. This essay takes a hard look at these two parts - governing contractual job security and discharge for reasons violative of public policy - from the perspective of these desiderata. It argues that the rules set out beg lots of questions, the doctrinal grounding is either incoherent or absent, and that no effort at all is made even to describe what the economic and social conditions are to which these rules ostensibly respond. It argues that if the rules prove as influential as the ALI hopes the result is a stultification of the growth of the law; and, consequently, that the project ought be abandoned.