The Anti-Republican Origins of the At-Will Doctrine


Added on Mar 12, 2021

Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3790799 ---------------------------------------------------------------------------------------------------- Abstract This article highlights the origin of the employment at-will doctrine by providing the contextual contrast of Reconstruction free labor republicanism. To date, no work has situated the doctrine’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 article then elaborates upon the pervasive, overarching anti-subordination themes of the Radical Republican debates in Congress as well as their specific initiatives targeted 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 critique 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 republicanism, advanced a different rule of duration based upon custom and pay period. Finally, the article examines an early critique that at-will circumstances were so unsubstantial 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 workers at the very time that Reconstruction’s egalitarian reform efforts were fading. Utilizing contract terminology, the constitutionally guaranteed right to quit was bootstrapped into the prerogative for employers – right to fire employees at will eventually becoming the predominant employment doctrine today. Keywords: employment at-will, Reconstruction, master and servant, legal history, common law, employment contract, employment status, labor and employment law, railroads. Suggested Citation: VanderVelde, Lea S., The Anti-Republican Origins of the At-Will Doctrine (February 22, 2021). American Journal of Legal History, Vol. 60, Issue 4, pp. 397-449, (2020), U Iowa Legal Studies Research Paper No. 2021-08, Available at SSRN: https://ssrn.com/abstract=3790799