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.