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60 Am. J. Legal Hist. 397 (2020)
The Anti-Republic 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.
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