The life of the law has not been logic; it has been experience.
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The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Certainly, an evaluation of “what the law is?” must begin with the text of the law, whether statutory or court decisions. But, instead of the text being the end of the inquiry, it is usually only the beginning. Each case is unique. Facts will blend with the Law, which in some respects is a social practice. And so, the question in practice is “how will the law be used?” Experience is a good guide; a broad perspective is best.
However, our collective experience is in a constant state of flux, and thus its impact on employment law is continually evolving. Moreover, culture impacts law. Politics impact law. Markets impact law. Workplaces impact law. Our belief about what is fair and what is reasonable depends much on the environment and the beliefs of others, not the least of which may be judges and juries.
“Showing up is half the battle,” can be said for law as other areas of competition. The clients who actually make it to a lawyer’s office are influenced by the attitudes of family and friends that offer advice; Fairness tends to dominate lay perspectives on what is “legal.” These perspectives are over represented in the contests of law. The opinions of common folk about what “the law” is shapes what the law becomes. And with this broad conception of law, begins the legal process.
The employment lawyer who evaluates a prospective client’s situation will consider the law’s potential application to the facts. The text plays a role, and it can be determinative. However, the real inquiry for a lawyer is whether the law provides a “hook” on which to hang the facts of case. The end is justice, the legal theory is only the means. (A jury trial can be said to part of the end and the means.)
Perhaps more simply, the feelings generated by a client’s story will be a factor in the lawyer’s selection process. (He may look harder for supportive precedent or be more creative in his conception of a legal theory.) Thus, there is an instinctual inquiry. Was the termination unfair? Was it moral? What does the gut say? The employment attorney’s process of case evaluation and case selection is also part of the process that makes up the Law.
Once again the story of the case and the feelings it arouses will play a role in the adjudication of a dispute. Judges and juries who will apply the law tend to seek fair and reasonable outcomes as long as a view of the text permits its; again, feelings will find their reasons. (The process is called “interpretation.”) In the employment context, the law can often permit a fairness determination, albeit under the guise of formal legal rules. From an employee’s perspective, a good employment lawsuit provokes the fairness instinct.
Understanding the process and motives of the law however cannot alone make for reliable predictions about legal outcomes. “What is the starting point?” is an important consideration in guessing a case’s destination. State another way, knowing employment law’s present genome requires knowing its history. For example, by the industrial revolution, the law characterized the work relationship as one of “Master-Servant.” Knowing this little fact helps put the sometimes harsh doctrine of “employment at will” in context.
And the context is ever changing, and although the doctrine of employment at will continues to dominate modern employment law, more exceptions have been recognized. And as is the nature of the common law, the scope of these exceptions creeps toward broader exceptions. Clearly, the language and attitudes of “Master-Servant” are fading from workplace, and it cannot be long before the law catches up.
How is employment law adapting to the Great Recession? How is technological change impacting the employer and employee relationship, legal and otherwise? How does law balance the interests that arise in a knowledge economy? What political trends are becoming new laws, regulations and commitments to enforcement? What mindsets are influencing the decisions of judges and juries? Facts on the ground cause fluctuations in the answers.
Lastly and most importantly, the question for pragmatic employment law is “What works?” For, in the end, the law will look for a balance between the attitudes of employees and the demands of employers and do so in light of the economics of each path. In the meantime, the evolution of employment law is slowly occurring in real time, but the reflecting influences of a broad range of actors. With this in mind, we can began to answer the question “What is in employment law” or perhaps better yet, “Do I have a case?”