The history of job (in)security: Why private law theory may not save work law
Document Type
Article
Publication Date
Winter 1-27-2023
Abstract
This Article uses a history of the push for job security in the United States during the late 20th century to assess New Private Law (NPL) theory. The history recounts the rise and fall of common law and statutory approaches to replacing at-will employment with termination for just cause only. Applying NPL theory to that history, the Article argues that NPL theorists’ current approach to defining their topic of study and distinguishing it from public law is inconsistent within and across theories. NPL theorists seek to carve out an area of law where interpersonal morality trumps legal economists’ goal of collective welfare maximization. That conceptual project depends on a coherent and consistent approach to distinguishing private from public law. Ultimately, the Article argues, NPL theorists face a more fundamental problem, however. Regardless of how one categorizes the events in this history, it shows that the common law-derived interpersonal morality at the heart of NPL theory may not strengthen worker protections in the ways at least some of its theorists hope.
Keywords
Private Law, Philosophy of Law, Legal Theory, New Private Law theory
Publication Title
The history of job (in)security: Why private law theory may not save work law
Repository Citation
Lee, Sophia Z., "The history of job (in)security: Why private law theory may not save work law" (2023). All Faculty Scholarship. 2927.
https://doi.org/10.1515/til-2023-0009