Black-letter law declares that a contract to perform personal services cannot be specifically enforced. Many courts, scholars, and commentators have claimed that such enforcement would constitute “involuntary servitude” under the Thirteenth Amendment. This Article, however, rejects that conventional wisdom. A careful reading of the history leading to the ratification of the Thirteenth Amendment reveals that, at the time of its adoption, “involuntary servitude” had a specific legal meaning, one that did not extend to any specific enforcement of a personal service contract. Rather, courts that were forced to draw the line between contract enforcement and “involuntary servitude” looked to coercion in the creation of the contract, the length of its duration, the power of the master over the servant, and the adequacy of the servant’s compensation to determine if enforcement of an agreement would constitute “involuntary servitude.” Since the Thirteenth Amendment’s adoption, the U.S. Supreme Court has never found involuntary servitude in any case except those in which at least one of these factors—and arguably all four of them—was present. In short, neither the original meaning of “involuntary servitude” nor its subsequent interpretation by the Court justifies a per se prohibition on specific performance of personal service contracts.
Volume 93 - No. 6
- Note: Copyrighted Laws: Enabling and Preserving Access to Incorporated Private Standards
- Note: Embracing Ambiguity and Adopting Propriety: Using Comparative Law To Explore Avenues for Protecting the LGBT Population Under Article 7 of the Rome Statute of the International Criminal Court
- Note: Getting Back to Basics: Recognizing and Understanding the Swing Voter on the Supreme Court of the United States
- The Value of the Standard
- The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination
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