Friday, January 13, 2012

What the Experts are saying …. Ken Dau-Schmidt


Today, begins the start of a series of workplace law professor essays on the Restatement of Employment Law. These essays stem from a meeting of law professors in Chicago in November to discuss the on-going Restatement project.  Each of these essays are from individuals who spoke at the conference. In addition, Chief Reporter Sam Estreicher and his Associate Reporters have been invited to submit their own expert essays and may do so in the future.


We begin today with Professor Ken Dau-Schmidt of the Indiana-Bloomington (Maurer) Law School:

On November 18-19, 2011, a group of labor law experts gathered to provide the second critique on the Restatement of Employment Law Project of the American Law Institute.

This conference taking place at the American Bar Foundation in Chicago, follows a previous conference held at Hasting Law School in February 2009.

When the first draft of the proposed restatement came out in 2006, the Labor Law Group sponsored a session on the ALI’s proposal at which both Mike Harper and Matt Finkin spoke.  After that session, there was sufficient concern among the experts in the field about the project that the Labor Law Group drafted a petition requesting reconsideration of the project and circulated it among members of the academy. The petition signed by sixty-two members of the legal academy was submitted to the ALI membership at their annual meeting.  The petition did not result in a major rethinking of the project; it did result in postponement of the approval of the initial draft by the ALI membership for one year. 

The Labor Law Group used that year to plan the Hastings conference and provide a more detailed critique of the ALI drafts up to that date. Working committees addressed the issues raised in Chapters 1, 2, and 4 of the proposed Restatement.  The resulting papers were published in 13 Employee Rts & Employment Policy J. (April 2009).  The ALI reporters and advisors were all invited to attend the Hastings conference and participate in the discussion.  Although none of the reporters attended the Hastings meeting, the meeting was attended by one member of the Council and a number of the projects’ advisers. Later, Timothy Glynn, Mike Zimmer, and Charlie Sullivan put together a panel at Seton Hall where the reporters heard some of the criticisms. 

These several critiques yielded criticisms of two general forms.

The first form of criticism was that the project was in some way fundamentally misguided.  For example, several commentators argued that the employment relation is evolving so quickly that it is too early to take a meaningful look backward in a Restatement.  These critics argued that a restatement at this time could not capture the dynamic changes in the law, or worse might serve to discourage further evolution of the law.  Others argued that the restatement project was fundamentally flawed because it had no unifying theme or theory to motivate a restatement of employment law that would be separate and complete.  The argument is that, in order to get a restatement of employment law that is internally consistent and consistent with the other related restatements of contract tort and agency, one would have to discuss why employment law is distinct from other areas of law and why a separate restatement would be needed by considering the underlying purpose of employment law.  Some went so far as to propose unifying principles around which employment law could be organized.  Alan Hyde said that the field could be unified around the idea of protecting employees’ rights.  Matt Finkin said that the field could be unified around the principle of protecting employees against exploitation because they typically have less power in the employment relationship.  The reporters and membership of the ALI have decided not to follow these advisory opinions and suggestions.  Thus there is currently no unifying theory among the various chapters that are proposed. 

The second form of criticism has been to consider the project on its own terms, in other words, to assess how well the reporters are doing in drafting a restatement of employment law that accomplishes what the ALI purports to do through restatements. 

I went back and looked at the ALI’s Reporters’ handbook which sets for the ALI’s objectives for reporters in drafting a restatement.  The general statement of these objectives is that in its restatements, the ALI seeks an authoritative consensus, among academics, practitioners and judges, on what the law is or on what it ought to be that is both internally consistent and consistent with other restatements.  In other words the ALI is seeking both a positive statement of what the law currently is, as well as a normative or aspirational statement about what the law should be.  Although the reporters should generally follow the doctrine in the majority of states, where it is necessary to make the restatement logical and consistent, both internally and with other restatements, the reporters can choose the “better rule” even where it is the minority rule, or does not yet exist in the common law. 

Trying to draft an appropriate positive restatement of the law among 50 odd jurisdictions is difficult enough, let alone figuring out what the law “ought” to be.  One narrow view of the normative objective would be to merely simplify or make consistent the common law.  In this case the approach would be to make small little changes “hammering out the dents” in the law in order to produce consistency.  However there is also a broader view of the normative role that the proposed Restatement can choose the minority rule if it proves to be logically better, and certainly if there is a trend in that direction.

            So far the critics have had more luck in critiquing the draft restatement on its own terms. The most visible success is in the area of the doctrine of the “inevitable disclosure” of trade secrets, which is now omitted from the restatement draft.  The reporters have also adopted a very limited form of the doctrine of self-publication of defamation in the employment context in response to criticisms that were made at the Seton Hall conference. Also at Seton Hall, a lot of criticisms were focused on privacy concerns and how to make a common law right to privacy real and meaningful when the employer can easily get consent from employees and because the employer can shape the employees’ expectations of privacy.  Matt Bodie has now added a section on employee to the privacy draft, so there has been some movement in response to this criticism.  Bodie’s draft on employee autonomy has little express basis in existing cases which poses an interesting question of the tension between the positive and the normative purposes of the ALI restatement.  Should the critics be happy that Bodie’s draft now makes more sense than the common law on the subject, or criticize it because it does not have adequate support in existing cases?


As Matt Finkin has said, a restatement of employment law will inevitably be a “dog’s lunch” of odds and ends which might not be that appealing, but as Charlie Sullivan has said the question is how to make that lunch as palatable as possible.

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