1. Henry Prakken August 23, 2013 NorMas 2013 Argumentation about Norms

2. 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

3. 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

4. Rational reconstructions of Monge Rational reconstruction 1: defeasible reasoning with rules and exceptions Rational reconstruction 2: arguing about whether the rule should be changed

5. 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

6. 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

7. 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

8. 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.”

9. 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

10. 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

11. “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

12. 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 V Therefore (presumably), A should (not) be done

13. 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”

14. 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 B Argument A strictly defeats argument B if A attacks B and is stronger than B

15. 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.”

16. 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