The Anti-Republican Origins of the At-Will Doctrine

Lea VanderVelde, University of Iowa College of Law

Date: 
Mon, 03/11/2019 - 4:30pm
Location: 
300 Wallace Hall
Event Category: 
Seminar
Audience: 
Public

LAPA’s seminar format assumes that seminar participants have familiarized themselves with the paper in advance. The commentator opens the session by summarizing the main themes in the paper and presenting some topics for discussion. The author then has the right of first response before we open to the floor for questions. The seminar will end with a brief reception, giving everyone a chance to mingle and meet.

Abstract:  "Employment at-will is the most subordinating employment law doctrine in the U.S. today. The rule says that an employer is entitled to fire an employee without reason, maliciously for bad reasons, or for ridiculous reasons. The first appeared in the written legal record immediately after Reconstruction, a period when Congress advanced an active anti-subordination reform agenda to bring about parity between workers and their employers. This paper examines the extent of Congress' anti-subordination agenda, the employee's right to quit under the 13th Amendment, and labor systems deemed "anti-republican" by the Congress. The at-will rule's emergence undercut that labor republican agenda. This  retrenchment of railroads' authority over their workers was in fact, promoted by persons associated with railroad interests. Although the at-will rule won out, at the time, there were "republican" legal scholars proposing other alternatives, and dissenters raising objections that the rule undermined free labor. As a result of the at-will rule, workers in the U.S. today have the job security of 19th century railroad day laborers."

Vandervelde
Lea VanderVelde
Josephine R. Witte Professor of Law, University of Iowa College of Law

Lea VanderVelde researches 19th century lives, court decisions, and other occurrences that significantly impacted the course of American law, particularly in the areas of slavery, work, property, and the Constitution.  She is the author of Mrs. Dred Scott, the biography, Redemption Songs, and The Labor Vision of the Thirteenth Amendment.  Her current biography projects are William M’Intosh and the heroes of the Reconstruction Congress.  VanderVelde is currently using digital research technologies to examine American national expansion in the critical years before the Civil War and the Reconstruction Congress debates that enhanced American freedom.  She works with Kailash Satyarthi, who she nominated for the 2014 Nobel Peace Prize, to end child slavery and child labor and consulted on the film, “The Price of Free,” which won the Sundance Film festival award for best documentary in 2018.  She is working with the Missouri Archives to create the VanderVelde Calendar of the Chouteau Papers on the Fur Trade. As principal investigator for The Law of the Antebellum Frontier project at the Stanford Spatial History Lab, VanderVelde is analyzing the legal and cultural mechanisms at work in developing states out of U.S. territories. More about the project can be found at http://www.stanford.edu/group/spatialhistory/cgi-bin/site/project.php?id=1057.  In 2011 she was the Guggenheim Fellow in Constitutional Studies and she was just recently, 2019, awarded the May Brodbeck fellowship for the Humanities.

Forbath
William E. Forbath
LAPA Fellow; Lloyd M. Bentsen Chair in Law and Associate Dean of Research, University of Texas at Austin

William Forbath is among the nation’s leading legal and constitutional historians.  His books include Law and the Shaping of the American Labor Movement and the forthcoming The Anti-Oligarchy Constitution.  He has written dozens of articles, book chapters and essays on subjects like political, social and economic inequality in American constitutional thought and politics – past, present, and future; social and economic rights in the courts, state institutions and social movements of the Southern Hemisphere.  He received his Ph.D. and J.D. from Yale University and holds an A.B. from Harvard and a B.A. from Cambridge.  Forbath is on the boards of several local and international public interest and human rights organizations.  At LAPA, he will pursue his most recent research interest in Jews, law and identity politics in the early twentieth century.