THE RIGHT TO STABLE EMPLOYMENT: LESSONS FROM THE U.S. VIRGIN ISLANDS.

• Date: 01 April 2024
• Author: Ciolli, Anthony M.

I. Federalist Backdrop 1127
                II. Innovation in the U.S. Virgin Islands 1130
                III. The Right to Stable Employment in the U.S. Virgin Islands 1132
                IV. Lessons from the U.S. Virgin Islands Experience 1137
                

I. FEDERALIST BACKDROP

The American system of government is perhaps most defined by federalism--the idea that the states remain sovereign and exercise concurrent or even exclusive authority over certain matters vis-a-vis the federal government. Our federalist system thus provides both a check on the authority of the entire federal government as well as a mechanism to implement original or innovative ideas on a smaller scale. As Justice Louis Brandeis once famously wrote, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (1)

This idea of states serving as laboratories has in some ways proven perhaps unduly idealistic. "[S]tate governments have grown immensely large," as has "[g]overnmental bureaucracy at every level." (2) Moreover, "[e]very state legislature is now representing a lot more people than in the past, and state legislative districts are often larger than Congressional Districts." (3) Nor does the current political environment favor novel experimentation even at the state level--state governments have become increasingly politically polarized, with political divisions often following an urban-rural divide. (4) These urban-rural divisions within states perhaps most impair the states' ability to engage in economic experimentation, given the dramatically different economies of urban and rural areas. (5) And while differences amongst populations within individual states may have increased, differences between states have greatly diminished due to Americans adopting a more national identity, facilitated by technological developments such as television and the Internet. As one scholar observed:

Americans are now a people who are so alike from state to state, and
                whose identity is so much associated with national values and
                institutions, that the notion of significant local variations in
                character and identity is just too implausible to take seriously as
                the basis for a distinct constitutional discourse. (6)
                

Given these developments, one might naturally expect economic experimentation to simply devolve to even smaller levels of government, such as cities, counties, municipalities, or villages. Yet this has largely not been the case as a practical matter. (7) This is not due to a lack of desire on the part of cities and other sub-state governments to innovate and adopt policies different than their state government. As one author aptly explained:

For generations, cities were viewed as the source of American's [sic]
                most vexing challenges. Today, however, they are increasingly cast as
                the solution to many of our nation's most pressing problems. On social
                and economic issues, cities are celebrated for their innovative and
                forward-thinking policies. In an era of gridlocked partisanship, local
                politics are hailed as a glimmer of hope amid America's democratic
                dysfunctions. It may have once been common for policymakers to wonder
                whether cities were capable of governing themselves. Now influential
                thinkers are openly asking whether it would be better if "mayors ruled
                the world." (8)
                

Ultimately, the biggest obstacle to novel experimentation by cities and other local governments is that federalism, while a defining feature of national government, is not constitutionally required at the sub-state level but only provided at the grace of the state government. Only a fraction of states chose to adopt "a mini federal system in which the state concerns itself with statewide affairs and local matters are constitutionally delegated to local authorities" and "cities acting within the sphere of 'local' concern are effectively shielded from state intervention." (9) In most states, the state government typically either retains plenary authority over municipal affairs or, even if some sort of "home rule" or local autonomy exists, it is often construed very narrowly by state courts. (10) In such states, city and local governments often no longer even try to experiment with novel laws, knowing that any meaningful innovation may be nullified by the state legislature or--in what is often the worst case scenario--struck down by a state court as violative of the state constitution, thus creating an adverse precedent that may jeopardize local autonomy in other areas. (11)

That state governments have effectively become too large and complex to innovate, while cities and other local governments either cannot innovate or may only do so in a very narrow set of areas pursuant to strict conditions, has transformed the idea "that the 50 States serve as laboratories for the development of new social, economic and political ideas" from a reality into a myth. (12) However, this was not always the case. As Justice Sandra Day O'Connor observed 40 years ago:

This state innovation is no judicial myth. When Wyoming became a State
                in 1890, it was the only State permitting women to vote. That novel
                idea did not bear national fruit for another 30 years. Wisconsin
                pioneered unemployment insurance, while Massachusetts initiated
                minimum wage laws for women and minors. After decades of academic
                debate, state experimentation finally provided an opportunity to
                observe no-fault automobile insurance in operation. (13)
                

Yet outside of action on certain hot-button social issues such as same-sex marriage and abortion--which were typically the product of action by state supreme courts and not state legislatures--over the past several decades there has been shockingly little innovation of a comparable magnitude. This may be particularly true with respect to economic issues, where supreme courts have been more reluctant to interpret state constitutions to recognize economic rights over the objection of the other two branches of state government. (14) And in the long run, the failure to innovate will necessarily result in further homogenization of the law, since opponents of the status quo in a particular state or locality will find it even more difficult to point to the results of a different policy enacted elsewhere.

Yet declining experimentation at the state and local level does not mean the absence of any meaningful innovation on economic issues within the United States. What may be surprising, however, is the source of much of that innovation: the five inhabited United States territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. It is far beyond the scope of this or any other Essay to outline all the experimentation undertaken by these territories even over the course of the last 20 years, let alone the past century. This Essay, however, tells a story about a single innovation in one territory from which mainland governments should take note: the complete abolition of the employment-at-will doctrine in the U.S. Virgin Islands.

II. INNOVATION IN THE U.S. VIRGIN ISLANDS

The Virgin Islands of the United States, more commonly known as the U.S. Virgin Islands, is a Territory of the United States located in the Caribbean Sea, nearly 1,200 miles away from the mainland United States. The United States acquired the U.S. Virgin Islands--previously known as the Danish West Indies--in 1917 by purchase from Denmark for $25,000,000 in gold coin. (15) Today, the U.S. Virgin Islands is home to a population of 87,146 people, the overwhelming majority of whom are African American, (16) who possess United States citizenship yet are nevertheless deprived of many fundamental constitutional rights that Americans who reside in the mainland United States often take for granted, such as the right to vote for President and voting members of Congress. (17)

While well known as one of the world's preeminent tourist destinations, few Americans realize that the U.S. Virgin Islands has been a hotbed of innovation since becoming part of the United States. For example, the U.S. Virgin Islands has abolished the employment-at-will doctrine. (18) But that is not the extent of its innovation. The U.S. Virgin Islands has, among other things, the distinction of being the only jurisdiction under the United States flag to abrogate the American Rule on attorney's fees in favor of the English Rule, which allocates such fees to the prevailing party; (19) abolish remittitur; (20) and enact traffic rules requiring that cars drive on the left rather than the right. (21) In addition, the U.S. Virgin Islands was one of the very first jurisdictions to adopt no-fault divorce as well as no-fault alimony and no-fault child custody; (22) to abolish the...