Henry PrakkenAugust 23, 2013

NorMas 2013Argumentation about Norms

Olga Monge v. Beebe Rubber Company (1974)

Facts (1): Olga Monge, employed for an indefinite period of

time (“at will”), was fired by her foreman for no reason

Law: Every employment contract that specifies no

duration is terminable at will by either party If an employment contract is terminable at will, then

the employee can be fired for any reason or no reason at all

Decision: Firing Olga Monge was a breach of contract

Olga Monge v. Beebe Rubber Company (1974)

Facts (1): Olga Monge, employed for an indefinite period of time

(“at will”), was fired by her foreman for no reason Law:

Every employment contract that specifies no duration is terminable at will by either party

If an employment contract is terminable at will, then the employee can be fired for any reason or no reason at all

Decision: Firing Olga Monge was a breach of contract

Facts (2): Monge claimed that she was fired since she had

refused to go out with the foreman

Rational reconstructions of Monge

Rational reconstruction 1: defeasible reasoning with rules and exceptions

Rational reconstruction 2: arguing about whether the rule should be changed

Attack on conclusion (Monge)

Olga Monge’s contract was terminable at will

Every employment contract that specifies no duration is terminable at will by either party

Olga Monge’s contract specified no duration

Olga Monge was fired

…

Firing Olga Monge was no breach of contract

Olga Monge cannot be fired in malice

Employees cannot be fired in malice

Olga Monge was employed

Olga Monge was fired in malice

…

Firing Olga Monge was breach of contract

If a person can be fired for any reason or no reason at all and s/he was fired, then

firing him/her is not a breach of contract

If a person cannot be fired in malice and s/he was fired in

malice, then firing him/her is a breach of

contract

Attack on inference (Monge)

Olga Monge can be fired for any reason or no reason at all

Every employment contract that specifies no duration is terminable at will by either party

Olga Monge’s contract specified no duration

Olga Monge was fired

…

Firing Olga Monge was no breach of contract

The employment at will rule does not apply to Olga Monge

The employment at will rule does not apply to people fired in malice

Olga Monge was fired in malice

Common Law vs. Civil law (traditionally)

Civil law has formally enacted legislation Courts have no authority to change

legislation Common law has no legislation,

only precedents + stare decisis Rules evolve over time in case law

Quotes from Monge In all employment contracts, whether at will or for a

definite term, the employer's interest in running his business as he sees fit must be balanced against the interest of the employee in maintaining his employment, and the public's interest in maintaining a proper balance between the two.

We hold that a termination by the employer of a contract of employment at will which is motivated by bad faith or malice or based on retaliation is not in the best interest of the economic system or the public good and constitutes a breach of the employment contract.”

Rule R

We should adopt rule R as the valid one

IF we should adopt rule R as the valid one THEN rule R

Supporting and using legal rules

Condition of rule R

Conclusion of rule R

Every employment contract that specifies no duration is terminable at will by either

party

We should adopt the Old Rule as the valid one

IF we should adopt rule R as the valid one THEN rule R

Supporting and using legal rules in the Monge case (1)

Monge’s contract specified no

duration

Monge’s contract can be terminated at will by Monge’s employer

Further arguments for and against this premise

“Every employment contract that specifies no duration is terminable at will by either party, unless the

employer terminates the contract in bad faith, malice, or

retaliation

We should adopt the New Rule as the valid one

IF we should adopt rule R as the valid one THEN rule R

Supporting and using legal rules in the Monge case (2)

Monge’s contract specified no

duration

Monge’s contract cannot be terminated

at will by Monge’s employer

Further arguments for and against this premise

Monge was fired in malice

Arguments from good/bad consequences:

promoting or demoting legal values

Critical questions: Are there other ways to cause G? Does A also cause something else that

promotes or demotes other values? ...

Action A causes G, G promotes (demotes) legal value VTherefore (presumably), A should (not) be done

Monge as practical reasoning

We should adopt the Old Rule as the valid

rule

The old rule makes that

employers can run their business

as they see fit

Employers being able to run their business as they see fit promotes individual liberty

We should adopt the New Rule as the valid

rule

The new rule makes that good

employees cannot be fired in malice

Good employees not being able to

be fired in malice promotes

the economic system and public good

Short for “Every employment contract that

specifies no duration is terminable at will

by either party”

Short for “Every employment contract that specifies no

duration is terminable at will by either party unless the

employer terminates the contract in bad faith, malice,

or retaliation”

Monge as practical reasoning

We should adopt the Old Rule as the valid

rule

The old rule makes that

employers can run their business

as they see fit

Employers being able to run their business as they see fit promotes individual liberty

We should adopt the New Rule as the valid

rule

The new rule makes that good

employees cannot be fired in malice

Good employees not being able to

be fired in malice promotes

the economic system and public good

Argument A weakly defeats argument B if A attacks B and is not weaker than BArgument A strictly defeats argument B if A attacks B and is stronger than B

Quotes from Monge In all employment contracts, whether at will or for a

definite term, the employer's interest in running his business as he sees fit must be balanced against the interest of the employee in maintaining his employment, and the public's interest in maintaining a proper balance between the two.

We hold that a termination by the employer of a contract of employment at will which is motivated by bad faith or malice or based on retaliation is not in the best interest of the economic system or the public good and constitutes a breach of the employment contract.”

Concluding remarks Rule change during rule application occurs in

various normative domains Arguments about rule change can be modelled

as argumentation about action, using argument schemes from good or bad consequences

All this can be formalized, e.g. in the ASPIC+

framework: Defeasible reasons Preferences