Document Type


Publication Date

Winter 2001


Labor market trends, Just-cause protection, Unemployment insurance, ERISA, Employee Retirement Income Security Act, Privacy law, Unequal bargaining power, Consolidated Omnibus Budget Reconciliation Act, COBRA, Health Insurance Portability and Accounting Act, HIPAA, Family Medical Leave Act, FMLA


Labor and Employment Law | Law and Economics | Law and Society


In this Article I predict how employment law will change in the future. My task is positive rather than normative. I will not argue that the developments I foresee are good ones to be applauded. Rather, they arise "inevitably" from the way the law will react to changes in labor markets.

Of course, as Professor Ronald Dworkin emphasizes, in developing a theory of law one cannot sharply distinguish between the positive and normative. Dworkin points out that even in describing the current legal framework, one must choose what to highlight and what to ignore, a process based on values. When predicting the future, the winnowing process is even more value laden. Karl Marx's predictions about the future of capitalism (which at their core involved changes in employment relationships) had this mixed positive and normative quality. In much of his writing, Marx argued in a positive predictive vein that the rise and fall of capitalism was predestined by historical forces. In other writings, Marx normatively applauded the trends he foresaw and tried to hasten their arrival.

To preview my bottom line, I will predict as a positive manner that employment law in the future will pay more attention to efficiency concerns, to the need for firms and economies to be competitive, and to the costs as well as benefits of employment regulation. Those who know my prior work may be skeptical that I disclaim any normative applauding of such trends. At this point, I simply acknowledge the intertwined nature of hope and prediction.

Publication Citation

Published in: Indiana Law Journal, vol. 76, no. 1 (Winter 2001).