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Sixty-five professors of labor and employment law have petitioned the American Law Institute (ALI) to terminate its projected Restatement of Employment Law. Most have had experience in private practice; many have had significant government service; a number are prominent arbitrators. They question the project’s assumptions and decry its consequences. The project proposes simple black-letter rules ostensibly to clarify and adapt the common law to contemporary social conditions. But no experts in those conditions, from industrial relations or policy studies, are involved. Four legal academic reporters draft the rules; editorial control is given to a chief reporter who is also active in representing employers. An advisory committee, mostly of practicing lawyers, gives nonbinding advice. Thus the project looks inward, at the law as it is today, not outward, to what the law will confront tomorrow. At best � at best � the product will be a simplified, selective snapshot of the current common law, with the ALI putting its stamp of approval on one rule over another. But the necessary negative consequence in so volatile a field, even if a current consensus could be captured, is to stultify the growth of the law, deterring the courts from reconsideration � and change. Critically, however, the “at best” assumes that neutral, principled grounds can and will be sought to distinguish a better rule from a worse one. But the process gives no promise of doing that. Two examples should suffice. In most jurisdictions, an employer policy assuring employees that dismissal will only be for just cause is enforceable as an implied-in-fact contract. The draft concurs in the result; it could scarcely do less, but it does so on a noncontractual, public law theory of “administrative estoppel” that has not been adopted as such in the common law of any jurisdiction. That doctrine would allow the employer unilaterally to abrogate its commitment, contrary to contract doctrine, which, for example, Illinois law illustrates. We are told that abrogation must be allowed, so as not to unduly burden employers. No mention is made of the employees’ interest, nor is any attention paid to the significance of job security in the economy. The result, we are told, is doctrinally driven, but doctrine is selected to achieve the result. In most jurisdictions, an employee may not be discharged for a reason violative of public policy. The draft concurs; it could scarcely do less. But it cabins the categories of actionable wrongs narrowly. Discharge for refusing to do an unlawful act, for claiming a workplace benefit or for invoking a “nonwaivable” employment right is actionable. But the draft follows by stating that discharge for refusal to do a lawful act, for claiming a nonworkplace benefit or for refusal to waive a waivable right would be inactionable, just as the draft’s illustrative hypotheticals amply evidence. May an employee who holds stock in the company be discharged for refusing to vote her stock as management dictates? The Virginia Supreme Court held that such a discharge violated public policy. The draft would hold that such a discharge would not, as the employee is asserting a nonworkplace right and a waivable one at that. No other explanation is apparent. The draft does append an omnium-gatherum clause extending wrongful discharge protection to any “activity directly furthering a substantial public policy.” Might this not protect the stockholding employee from reprisal? Probably not: If this addition would protect what is expressly precluded, why have the express preclusions? But then, why isn’t this simple rule alone sufficient for Restatement purposes? The draft declines to say, in the name of clarification. It should be clear by now that the proposed rules are not the product of a process in search of a societally sensible or even a coherent approach. As one reporter commented to another in the current draft, concerning a reference in the draft’s supporting scholarship: “[Professor X] has his own [case] book; he is not going to use ours. Why flatter him so?” This private aside, which the reporters neglected to excise before the draft was widely circulated, reveals a process so indifferent to thoughtful engagement that reliance on scholarship becomes a form of patronage. We need to take a close, clear look at the whole of our law governing the employment relationship � statutory as well as judge-made. The European Commission’s green paper, Modernising Labour Law to Meet the Challenges of the 21st Century (2006), has initiated just such a process. The Canadian government, via an independent commission chaired by Professor Harry Arthurs, has already done so. Its report, Fairness at Work: Federal Labor Standards for the 21st Century (2006), is a model of what could be done. Both of these place what the ALI is doing in stark and, alas, unflattering relief. The ALI should put the project to rest. If not, it might at least care to explain how the nation is served by what it is doing. Matthew W. Finkin is a professor at the University of Illinois College of Law.

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