Saturday, April 26, 2008

Specific Performance & the 13th Amendment.

Here's 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.

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