Specific Performance and the Thirteenth Amendment

I’ve put my new article — “Specific Performance and the Thirteenth Amendment” (forthcoming from Minnesota) — up on SSRN for your enjoyment. It examines one of those common claims that flits around legal argument, which everyone refers to and no one actually sits down and evaluates, in this case the notion that ordering specific enforcement of a personal service contract would constitute involuntary sevitude under the thirteenth amendment. Not surprisingly, the funnest part of doing this article was the historical research. The language of the thirteenth amendment was lifted almost verbatim from the Northwest Ordinance of 1787, which was then incorporated into the constitutions of Ohio, Michigan, Indiana, and Illinois before the Civil War. It was fairly common for slave owners south of the Ohio to take their slaves across the river and then attempt to circumvent prohbitions on slavery by having the slaves enter into long term “contracts” of service. When abolitionist or anti-slavery lawyers sued on behalf of the slaves — generally petitioning for a writ of habes corpus against the slave owner — the courts of Ohio, Illinois, and Indiana found themselves struggling with the problem of how to distinguish an unobjectionable labor contract from “involuntary servitude.” Contra other scholars who have looked at the issue, I think that these courts developed a fairly coherent four part analysis for identifying involuntary servitude, and I think that this original understanding can be followed through the ratifying and implimenting debates over the thirteenth amendment and reconciled with the Courts haphazard treatment of the amendment since. Finally, while I do think that the specific performance of some personal service contracts could violate the thirteenth amendment, in a huge class of cases there is no constitutional impediment to holding a party to his or her contract, and I think that there are practical, economic, and moral advantages to doing so.

Here is the abstract of the article:

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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2 Responses

  1. Sean M. says:

    Prof. Oman,

    Prof. Banks plugged your article in our Contracts class the other day and I read (or at least thoroughly skimmed). I certainly can’t quibble with the historical research, but I wonder about your final analysis on when some personal service contracts /should/ be enforced by specific performance. You give the example of the football coach as one who should be held to his contract. You argue that there are measurable standards by which coaching can be judged by.


    Coaching, at least good coaching, especially at something above the recreational youth league, relies on a lot of intangibles. After all, how many coaches have we heard about that have been sacked because they don’t have personalities that mesh well with the players or that they have a bad “style” even if they are technically proficient?

    A coach might “do his job” by holding practice in the morning five days a week and calling plays during the game, but a good coach does more than that. He gives the inspiring pep talk, he really sells his enthusiasm to new recruits. How would the University get the court not only to order the coach to work, but to give “Win one for the Gipper” quality pre-game pep talks like he did before? What would the order read: “Be more inspiring or be held in contempt?”

    This points to the broader problem: For professions where you want THAT person, as opposed to just anyone, the reason you want THAT person is for his intangible qualities that are too easy to tank. A writer ordered to finish his script can claim writer’s block (and who will say he is wrong?) A coach can be dull and uninspired. A performer can be flat and clunky. For the professions where you can measure performance easily, say, ditch diggers or typists, you don’t want THAT person, because more or less any body (spacing intentional) can do the work.

    The only professions that might be both measurable in terms of performance and personally unique (that would explain why you want to compel that individual as opposed to just replace him) might be professions like attorneys assigned to document review or accountants, where the work has set metrics or are more mechanical than creative. But even then, if the task is mechanical, it seems that it can be done just as adequately by a replacement worker than the one you originally hired.

    I very much enjoyed the historical understanding of the 13th Amendment, and I’m interested to see where and how you might take that into fuller discussions of the performance of personal service contracts.

  2. “The only professions that might be both measurable in terms of performance and personally unique (that would explain why you want to compel that individual as opposed to just replace him) might be professions like …accountants, where the work has set metrics or are more mechanical than creative.”

    obviously written by someone with no idea what an accountant, esp. a CPA acting in the auditor function, does. Accounting majors with 4 year degrees are faring quite well these days – even compared against a great bulk of law school grads armed with that extra three-year degree. The CPA-wannabes are not being paid for their inherent lack of creativity.