Moss - ARTICLES WHERE THERES AT-WILL THERE ARE MANY WAYS...

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* Assistant Professor of Law, Marquette University Law School ([email protected]); J.D., Harvard Law School; B.A. & M.A., Stanford University. The author wishes to thank the professors who participated in the January 2005 faculty workshop at Marquette University Law School as well as Marianna Moss and professors Matthew Bodie, Eric Goldman, Christine Hurt, Lisa Hatlen, Michael McChrystal, Peter Rofes, and Shirley Wiegand for their helpful suggestions and edits. The author also thanks research assistants Sonya Bice, Amy Klockenga, Erin Martin, and Emily Rupp Anderson. 295 ARTICLES WHERE THERE’S AT-WILL, THERE ARE MANY WAYS: REDRESSING THE INCREASING INCOHERENCE OF EMPLOYMENT AT WILL Scott A. Moss * Table of Contents I. Employment at Will: The Doctrine, Its Increasing Incoherence, and Its Possible Future . ................................. 299 A. Odes to “Employment at Will”: A Splintering Chorus . .... 299 B. Exceptions to Employment at Will: Doctrinal Inconsistency Betraying Judicial Ambivalence . ...................... 301 C. The Reform Agenda: A Coherent, Broad Range of Exceptions Based on Economic and Social Norms Theories . 303 II. Inconsistent Exceptions to a Supposedly Strong At-Will Rule: A Two-State Case Study. .................................. 304 A. Opposing Sets of Common Law Claims in New York and Wisconsin . ....................................... 304 1. “Public Policy” Claims: Termination for Complying with the Law. 306 a. Wisconsin: Adoption of a Common Law Claim . .. 306
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296 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 67:295 b. New York: Rejecting Common Law Claims, Then Adopting a Wholly Ineffectual Statute. .......... 308 2. “Fraudulent Inducement” Claims: Defrauding Employees into Their Jobs. ....................... 313 a. Wisconsin: No Claim for Employees, Only for Job Candidates. ................................ 314 b. New York: A Strong Claim for Employees and Candidates Alike. ........................... 317 3. “Implied Covenant” Claims: Termination Just Before Compensation Due. ............................. 319 a. Wisconsin: No Implied Covenant Claims . ....... 321 b. New York: Unrecognized Doctrinal Chaos—Implied Covenant Claims, but Only in Federal Court?. 322 B. Summary: Courts Alternately Citing and Ignoring “Employment at Will” Whenever Convenient to Reject or Accept Claims . .................................... 325 1. Statutes as Substitutes for Rejected Common Law Doctrines? . ................................... 326 2. Interstate Variation: Inherent to Common Law?. ...... 327 III. Similar Doctrinal Incoherence in Constitutional Law: When Courts Neither Follow nor Reject Established Rules. 328 A. Abortion: The Limbo Status of Roe , as “Fundamental Right” Gives Way to “Undue Burden”. 330 B. Establishment Clause: No Consensus Rule After the Unacknowledged Death of Lemon ..................... 336 C. Summary: Doctrinal Evolution, from Rule to Increasing Incoherence to Adoption of a Vague Standard . ........... 341 IV. Building a Better Standard: Some Economic Thinking About How to Recognize Exceptions to Employment at Will Without Inviting Incoherence. 342 A. Social Norms Against Unfair Terminations: A Real Phenomenon, but an Inadequate Substitute for Legal Protections. .......................................
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Moss - ARTICLES WHERE THERES AT-WILL THERE ARE MANY WAYS...

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