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"Specific Performance and the Thirteenth Amendment"

By Gordon Smith, Christine, Hurt, Vic Fleischer, Fred Tung, Lisa Fairfax, David Zaring (all)

My friend Nate Oman has a new paper on SSRN entitled "Specific Performance and the Thirteenth Amendment." This paper includes a fascinating tour of the history of the term "involuntary servitude," which will be of interest to teachers of Contracts for the reasons Nate describes:

For more than a century, the assumption that ordering specific performance of a personal service contract would constitute involuntary servitude under the Thirteenth Amendment has hung over the law of contract remedies. While the claim has generally been coupled with more traditional objections against such orders, it has had the effect of ossifying development of the law, precluding courts from critically examining the merits of specific performance in the employment context. A recovery of the original meaning of "involuntary servitude" coupled with a reading of the cases construing the Thirteenth Amendment, however, reveals that the argument against specific performance cannot be sustained in any but the most extreme situations. Freed from the analysis-numbing effects of constitutional claims, the arguments supporting a per se rule against specific performance in the context of personal services turn out to be quite weak, and substantial reasons counsel in favor of awarding such orders in at least some cases. Accordingly, courts should abandon the per se rule against specific performance of personal service contracts, and begin applying the ordinary rules of contract to such agreements. This would result in specific performance where there is no significant practical difficulty and equitable remedies provide a superior remedy to money damages.

Good stuff.

Full post as published by Conglomerate on April 03, 2008 (boomark / email).