From Judge-Made Law to Scholar-Made Law? The Strange Case of Employment-at-Will in the US

Abstract

Until 1877, when Horace Gray Wood’s A Treatise on the Law of Master and Servant was published, the rule in matter of termination of the employment relationship in the US was dismissal with notice, pursuant to the British Common Law tradition. On the contrary, Wood “reckoned” that the US rule in relation thereto was Employment-at-Will, which allowed any of the parties to immediately terminate in any case the employment relationship. Notwithstanding the ungrounded nature of Wood’s statement, since then US Courts started to adhere to Employment-at-Will, which became accordingly known as “Wood’s rule”. This constitutes a puzzle for legal theory, for the rule was “invented” but largely accepted by the legal community: it was, on the one hand, a false statement about the legal system but, on the other, a legal truth once accepted. In the present paper we try to make the puzzle explicit and to present a way-out of it, distinguishing a pre-Wood and a post-Wood context. However, such a way-out does not solve by itself the legitimation issue represented by the shift from the first to the second context.