The Current Status of the Restatement of Employment Law
by Michael Fox
A post by Richard Bales on a recent conference at Hastings College of law on the Proposed Restatement of Employment Law is not particularly encouraging about how it is going. This would be the Third Restatement of Employment Law and is being done (as are all Restatements) under the auspices of the American Law Institute. There are a large number of scholars, practitioners and a few judges (including Texas Supreme Court Justice Scott Brister) involved in the effort, see the list here.
The Restatement has had a rocky road, with the 2nd draft being opposed by 66 labor and employment law professors. See an earlier post at Workplace Prof Blog by Paul Secunda, ALI and the Pending Restatement of Employment Law. Although presented for a vote to the membership meeting at the May 2008 session, after the protest the ALI reported that "there was insufficient time to discuss the entire draft and no final vote on the draft was taken."
One of the organizers of the Conference on the 3rd draft was The Labor Law Group, a group I had never heard of. It turns out that it is a group of labor and employment law professors. The initial purpose when it was formed in 1946 was "the development of better books and materials for the instruction of law students on labor law." It's not clear from the website what the criteria for joining is, so not sure if it is oriented around a particular view of the law or some other principle.
That might be helpful in evaluating Richard's report of the view of the Restatement drafts as discussed at the conference, which certainly doesn't sound very positive:
Two themes quickly emerged. First, substantively, there are parts of the proposed Restatement -- especially in the Comments -- that slant heavily toward employers, though there are parts of the proposed Restatement as well that are on the progressive side. Second, the scholarship behind the proposed Restatement is extraordinarily sloppy -- cases are mis-cited, facts are wrong, holdings are wrong, and cases do not support the propositions for which they are cited. For this reason alone, ALI should put a hold on the proposed Restatement until it can be cleaned up. The proposed Restatement, if passed in its present form, would be an embarrassment to the American Law Institute and would call into questions generally its commitment to accurate scholarship.
To me the second point, which not having read the drafts, I have no opinion on, is the more important. As to the first, I have to chuckle somewhat seeing the two view points characterized as "employer" vs. "progressive." Not sure what that means exactly, but fairly certain that "employer oriented" is not viewed as a positive.
It doesn't appear that this is a restatement that is soon to be issued because the ALI's page on the project
concludes that "This project is likely to last several more years before completion."