Academic

Oman on Specific Performance & the 13th Amendment

By Lawrence Solum

Nathan B. Oman (William & Mary Law School) has posted Specific Performance and the Thirteenth Amendment on SSRN. Here is the abstract:

Black-letter law declares that a contract to perform personal services cannot be specifically enforced. Many courts, scholars, and commentators have claimed that to do so would constitute "involuntary servitude" under the Thirteenth Amendment. This claim, however, has never been the subject of extensive scholarly analysis. This article fills that gap and rejects the conventional wisdom. Neither the original meaning of "involuntary servitude" nor its subsequent interpretation by the Supreme Court justifies a per se prohibition on specific performance of such contracts. The non-constitutional arguments supporting the rule are likewise weak, and substantial policy and moral arguments counsel in favor of specific performance of at least some personal service contracts. Accordingly, this article concludes that the per se rule should be abandoned and that specific performance should be available for the enforcement of personal service contracts on the same basis as other contracts.

And from the text:

In April 1784, a Congressional committee chaired by Thomas Jefferson produced a report proposing: [A]fter the year of 1800 of the Christian era there shall be neither slavery nor involuntary servitude in any of the said states [of the Northwest Territory], otherwise than in punishment of crimes, whereof the party shall have been duly convicted to have been personally guilty.96 Under pressure from Southern delegates, the ban on slavery was dropped, but three years later when Congress passed the Northwest Ordinance of 1787, they revived Jefferson?s language.97 Consistent with the requirements of the Ordinance, the constitutions of all of the states carved out of the Northwest Territory ? Ohio, Michigan, Indiana, Illinois, and Wisconsin ? contained prohibitions on both slavery and ?involuntary servitude.?98 Other states followed, and, prior to the adoption of the Thirteenth Amendment, fourteen states already had constitutional provisions ? some of them adopted at the instigation of occupying Federal troops during the Civil War ? outlawing ?involuntary servitude.?99 Hence, far from inventing a new phrase, the framers of the Thirteenth Amendment adopted a legal term of art with a long history.

The earliest gloss on the term ?involuntary servitude? appears in Ohio?s 1802 constitution. After recapitulating the Northwest Ordinance?s prohibition on slavery and involuntary servitude, the constitution went on to provide two specific prohibitions aimed at limiting the enforcement of certain kinds of contracts. First, it stated that ?nor shall any male person, arrived at the age of twenty-one years, or female person arrived at the age of eighteen years, be held to serve any person as a servant, under the pretence of indenture or otherwise, unless such person shall enter into such indenture while in a state of perfect freedom, and on a condition of a bona fide consideration, received, for their service.?100 Second, the constitution singled out African-Americans for special protection, stating that ?[n]or shall any indenture of any negro or mulatto, hereafter made and executed out of the State, or if made in the State, where the term of service exceeds one year, be of the least validity.?

And from later in the text:

Taken together these materials suggest that under pre-Thirteenth Amendment Ohio, Illinois, and Indiana law involuntary servitude had four basic characteristics: First, it was not entered into ?in a state of perfect freedom.? Second, it lacked compensation or ?bona fide consideration.? Third, it extended over a long period of time that exceeded at least a year but could be less than the entire life of the servant. Fourth, it involved complete domination by the master of the servant, including the right to use violence to coerce the servant.

There is lots more!  I really like this paper.  Highly recommended.

Full post as published by Legal Theory Blog on April 15, 2008 (boomark / email).