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Specific Performance and the Thirteenth Amendment

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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.

    Really?

    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.