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Discussion of the Report of the Chapter 2 Working Group: Putting the Restatement in its Place

This Essay argues that employment law scholars have overstated the significance of the American Law Institute's draft Restatement of Employment Law. It echoes many of the legitimate concerns of restatement opponents - that the ALI draft overemphasizes employment at will and management interests in restating the law of termination - but asserts that the common law itself has trended in this direction. Courts are rolling back implied contract jurisprudence, making it increasingly difficult for workers to assert claims to contractual job protection, particularly in the face of employer-drafted disclaimers. For this reason, the Restatement does not pose a unique threat to workers' interests. Indeed, the draft's affirmation of the contract exceptions to the at-will rule, however narrowly presented, might reify workers' existing termination rights and their policy underpinnings, forestalling a more complete undoing of the law. The Essay challenges scholars to develop a contemporary agenda for employment reform that reaches outside the usual debate over at-will termination and just cause protection. In the transient and troubled labor economy that workers face today, the concept of job security is illusory, and any reform premised on that notion is likely to be both futile and inconsistent with party expectations. What is needed instead is a system that facilitates and insulates labor market transition. Laws that assist workers in the inevitable situation of job loss - such as mandatory notice and severance pay requirements - will more meaningfully protect worker interests, and more closely fulfill parties' joint expectations, than reform premised on expanded common law protection for existing employment relationships.