On November 21, the Cornell Law Review held its fall 2014 symposium, an examination of the Restatement (Third) of Employment Law. The Restatement, essentially a non-binding codification of current employment law, is a twelve-year project by the American Law Institute, which released the final version in May 2014. The Law Review's symposium constituted the first formal commentary of the publication.
Convening scholars, practicing lawyers, and judges, the symposium provided a forum for analyzing and critiquing the various chapters of the Restatement from a variety of perspectives. Work by the symposium participants will be published in volume 100, issue 6, of the Cornell Law Review.
The final of the event's four panels featured three judges: Marsha S. Berzon of the U.S. Court of Appeals, Ninth Circuit; Christine M. Durham of the Utah Supreme Court; and Lee H. Rosenthal of the U.S. District Court for the Southern District of Texas. The panel was attended by symposium participants as well as Cornell Law students and faculty, and the judges took questions throughout.
"I want to credit the Law Review for having the brilliance to bring before you a perfect range of perspectives on the subject [of the challenges of employment law]," said Rosenthal, observing both the contrasts among the jurisdictions of the panelists and their experience with employment law. "We've seen how this field of law has evolved."
The panelists, who had all served as advisors on the Restatement project, discussed the publication's significance, examining both its utility and its limitations as a tool for judges
Rosenthal began with a brief overview of what a Restatement is, its distinction from other approaches, and some of the challenges involved in the process, posing the question, "How does this single work accommodate the huge variety of jurisdictional variations, the huge variety of kinds of employment relationships, kinds of employees, and the mix of common law and statutory approaches to all those problems?"
Berzon took up the theme of the interplay between statutory and common law. As a federal judge, Berzon deals largely with statutes, and she wondered aloud whether the Restatement should have included some recognition that the body of federal and state employment-law statutes functions as a kind of common law. She also mentioned that she is probably the first federal appellate judge to cite the Restatement in a public decision, in a case involving a retaliatory-discharge whistle-blower claim.
Durham addressed chapter five of the Restatement, which deals with wrongful discharge in violation of public policy. She also spoke to some of the benefits of Restatements in general, including their doctrinal organization, their identification of issues in the field, and their identification of areas that are open and evolving.
"I do not agree with many of the critics of the Restatement, who claim that it's freezing employment law in a bad place," said Durham, pointing out that judges can choose whether and how much to adopt the work. She also suggested that any slowness in the evolution of employment law is arguably due to the caution of state judges. All three panelists recognized the usefulness of the Restatement as a compendium of existing employment law and a jumping-off point for research.
As the panel drew toward its close, Rosenthal reflected on the creation of the Restatement. "I wish all the students here could see this process . . . This is one of the very few areas in which members of the academy, practicing lawyers, and judges come together," she said. Added Berzon, "I was entirely new to the process, and I found it exhilarating.