Assessing the Restatement of Employment Law
This past November, ALI Reporters were invited to Cornell Law School to participate in the Cornell Law Review symposium where panelists assessed the Restatement of Employment Law, which had been approved by ALI for publication earlier that year.
In follow-up to this symposium, Chief Reporter Samuel Estreicher of New York University School of Law, and Associate Reporters Matthew T. Bodie of Saint Louis University School of Law, Michael C. Harper of Boston University School of Law, and Stewart J. Schwab of Cornell Law School are featured in the current Cornell Law Review publication (Volume 100, Issue 6) where they summarize how the project came to fruition, as well as the ALI drafting, review and approval process.
The Essay candidly describes the unique role and responsibility placed on ALI reporters, and the importance of balancing their own expertise in employment law with the Institute’s objective of providing a coherent description of the current law.
Judges make choices about the law but feel constrained by their role and try, with differing degrees of success, to separate their understanding of what the law is from applying their personal view of what the law should be. As Reporters we operate similarly, mindful of our constraints but subject to our own limitations.
The Restatement of Employment Law builds on previous guidelines laid out in other Restatements including the Restatement (Second) of Contracts, Restatement (Second) and (Third) of Torts, and Restatement (Second) and (Third) of Agency. “We did not start from scratch as many first Restatements do … What we tried to do was highlight the issues that have special force in the employment context.”
The Reporters also discuss how they determined what law to concentrate on (statutory or common), and how to address evolving topics, such as privacy in employment law. Although the Restatement had been cleared for publication before the November 2014 symposium, the Reporters noted that several observations made during this symposium were added into the Restatement.
The following ALI members also contributed Essays to this publication dedicated completely to discussing the recently published Restatement of Employment Law:
- “Relationship of Trust and Confidence in the Workplace” by Deborah A. DeMott of Duke University School of Law, Adviser to the Restatement of Employment Law
- “Fashioning a General Common Law for Employment in an Age of Statutes” by Professor Michael C. Harper, Associate Reporter for the Restatement of Employment Law
- “Drafting Chapter 2 of the ALI’s Employment Law Restatement in the Shadow of Contract Law: An Assessment of the Challenges and Results” by Robert A. Hillman of Cornell University Law School
- “Restating Employment Remedies” by Charles A. Sullivan of Seton Hall University School of Law
In addition to the Essays, Cornell Law Review included the symposium transcript from a panel discussion of the Restatement from a judicial perspective:
- Panel Transcript: A Judicial Assessment of the Restatement of Employment Law with Marsha S. Berzon of the U.S. Court of Appeals for the Ninth Circuit, ALI Council Member Christine M. Durham of the Utah Supreme Court, and ALI’s 2nd Vice President Lee H. Rosenthal of the U.S. District Court for the Southern District of Texas.
Cornell Law Review’s Volume 100, Issue 6, is now available at cornelllawreview.org.
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