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60 Am. J. Legal Hist. 397 (2020)
The Anti-Republican Origins of the at-Will Doctrine

handle is hein.journals/amhist60 and id is 397 raw text is: American Journal of Legal History, 2020, 60, 397-449 doi: 10.1093/ajlh/njaa020 Article The Anti-Republican Origins of the At-Will Doctrine Lea VanderVelde* ABSTRACT This article highlights the origin of the employment at-will rule by providing the contextual contrast of Reconstruction free labor republicanism. To date, no work has situated the doc- trine's emergence in the heady Reconstruction discussions of labor reform that immediately preceded it. This article briefly summarizes how the at-will rule functions to subordinate employees. The artide then elaborates upon the pervasive, overarching anti-subordination themes of the Radical Republican debates in Congress as well as their specific initiatives tar- geted at equalizing power disparities. Further, the article examines the paradox that the Thirteenth Amendment's minimum constitutional guarantee that workers have a right to quit became doctrinally embedded in the at-will rule's justification. Third, the article explores the contemporary post-bellum republican alternatives, both in treatises and in the dissent's cri- tique in the seminal case of Payne v. Western and Atlantic Railroad. While one treatise writer, Horace Wood, advanced the at-will rule, another, James Schouler, imbued with a sense of re- publicanism, advanced a different rule of duration based upon custom and pay period. Finally, the artide examines an early critique that at-will circumstances were so insubstantial as to fail to amount to any contract at all. Overall, this article provides a different perspective from which to view the doctrine's emergence, that is, as a retrenchment of railroads' authority over their day laborers at the very time that Reconstruction's egalitarian reform efforts were fading. Utilizing contract terminology, the constitutionally guaranteed right to quit was bootstrapped into a justification for the prerogative of employers to fire employees at will. Eventually, this legal construct became the predominant employment doctrine, and it continues today. I. INTRODUCTION Perhaps the most significant, and most subordinating, employment doctrine in the United States today is the employment at-will rule.1 Most American workers can be * Josephine Witte Professor of Law, University of Iowa College of Law. I thank Chris Drahozal, Lee Fennell, Jay Feinman, Joe Slater, Cesar Rosado, Alan Hyde, Charlotte Garden, William Forbath, Elizabeth Tippett, Mark Osiel, and Steven Siegel for their excellent comments. I also thank the participants in Princeton's LAPA program for their engaged commentary and the members of the Thirteenth Amendment Project, who have deepened my analysis. I thank Editor Felice Batlan, Christina Possel, Victoria Barnes and the anonymous reviewers of the American Journal of Legal History for their insightful comments. I also thank Noelle Sinclair and Amy Koopman of the Iowa Law Library for their creative dili- gence and success in pursuing obscure sources. This research was informed by twelve years engaged in the American Law Institute's Restatement of Employment Law, which unfortunately chose to use the at- will doctrine as its core, despite the best efforts of many experts. 1 See infra Part II. © The Author(s) 2021. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissionspoup.com 397

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