Taboo Trades

Indentured Servitude, Specific Performance, and the Thirteenth Amendment with Nate Oman

September 26, 2022 Kim Krawiec Season 3 Episode 2
Indentured Servitude, Specific Performance, and the Thirteenth Amendment with Nate Oman
Taboo Trades
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Taboo Trades
Indentured Servitude, Specific Performance, and the Thirteenth Amendment with Nate Oman
Sep 26, 2022 Season 3 Episode 2
Kim Krawiec

In this episode, we continue our discussion with Nathan B. Oman, the W. Taylor Reveley III Research Professor and Co-Director of the Center for the Study of Law and Markets at William & Mary School of Law. Nate specializes in Contract Law, the Economic Analysis of Law, Jurisprudence, Law and Religion, and Legal History. Today, we’re discussing his 2009 article, Specific Performance and the Thirteenth Amendment, published in the Minnesota Law Review. 

As I mentioned in episode 1, the article first came to my attention this summer, when the internet erupted with suggestions that the specific performance clause in the Elon Musk (more precisely, X Holdings) merger agreement with Twitter wasn’t enforceable because of the 13th Amendment. As you heard in our last episode, Nate strongly disagrees with that take. 

 I’ve split my discussion with Nate into two parts. In Episode 1, largely driven by questions from UVA Law 3Ls Bridget Boyd and Jenn Scoler, we discussed the Musk-Twitter litigation and the various provisions of the merger agreement, including the specific performance provision and the termination fee. In this episode, we delve more deeply into Nate’s analysis of the scope of the 13th amendment’s prohibition against indentured servitude and its relation to the specific performance of personal service contracts. As always, we spend some time on examples from the world of sports . . . because hey, we’re in Virginia. 


Nathan B. Oman faculty bio 

Nathan B. Oman, Specific Performance and the Thirteenth Amendment, 93 MINN. L. REV. 2020 (2009).

Amendment and Plan of Merger by and among X Holdings I, Inc., X Holdings II, Inc. and Twitter, Inc. dated as of April 25, 2022

Show Notes Transcript

In this episode, we continue our discussion with Nathan B. Oman, the W. Taylor Reveley III Research Professor and Co-Director of the Center for the Study of Law and Markets at William & Mary School of Law. Nate specializes in Contract Law, the Economic Analysis of Law, Jurisprudence, Law and Religion, and Legal History. Today, we’re discussing his 2009 article, Specific Performance and the Thirteenth Amendment, published in the Minnesota Law Review. 

As I mentioned in episode 1, the article first came to my attention this summer, when the internet erupted with suggestions that the specific performance clause in the Elon Musk (more precisely, X Holdings) merger agreement with Twitter wasn’t enforceable because of the 13th Amendment. As you heard in our last episode, Nate strongly disagrees with that take. 

 I’ve split my discussion with Nate into two parts. In Episode 1, largely driven by questions from UVA Law 3Ls Bridget Boyd and Jenn Scoler, we discussed the Musk-Twitter litigation and the various provisions of the merger agreement, including the specific performance provision and the termination fee. In this episode, we delve more deeply into Nate’s analysis of the scope of the 13th amendment’s prohibition against indentured servitude and its relation to the specific performance of personal service contracts. As always, we spend some time on examples from the world of sports . . . because hey, we’re in Virginia. 


Nathan B. Oman faculty bio 

Nathan B. Oman, Specific Performance and the Thirteenth Amendment, 93 MINN. L. REV. 2020 (2009).

Amendment and Plan of Merger by and among X Holdings I, Inc., X Holdings II, Inc. and Twitter, Inc. dated as of April 25, 2022

Nate Oman: Part of it is like, I just want the con law people to stay in their lane and let contract law just do its thing. I just think there's lots of legal tools that we have to make the world a better place. And it's not obvious to me that interpreting the 13 Amendment is the best way to do that. The abolition of slavery and the sort of battle against the legacies of the badges and incidents of slavery, that's one of the sort of great stories and great kind of moral streams of American politics, and I want to acknowledge that and certainly get some kind of voice to it. But when we're talking about multi million dollar contracts by college football coaches, they're not slaves. They're not anything that's close to slaves.

Kim Krawiec: Hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to.

Kim Krawiec: Sell, but do anyway.

Kim Krawiec: I'm your host, Kim Krabbik.

Kim Krawiec: In this episode, we continue our discussion with Nathan B. Omen, the W. Taylor Reveli III research professor and codirector of the center for the Study of Law and Markets at William and Mary School of Law. Nate specializes in contract law, the economic analysis of law, jurisprudence, law and religion, and legal history. Today we're discussing his 2009 article, Specific Performance and the 13th Amendment, published in the Minnesota Law Review. As I mentioned in episode one, the article first came to my attention this summer when the Internet erupted with suggestions that the specific performance clause and the Elon Musk, more precisely exholdings merger agreement with Twitter wasn't enforceable because of the 13th Amendment. As you heard in our last episode, nate strongly disagrees with that take. I've split my discussion with Nate into two parts. In episode one, largely driven by questions from UVA law three, LS, Bridget Boyd and Jen Scholar, we discussed the Musk Twitter litigation and the various provisions of the merger agreement, including the specific performance provision and the termination fee. In this episode, we delve more deeply into Nate's analysis of the scope of the 13th Amendment's prohibition against indentured servitude and its relation to the specific performance of personal service contracts. As always, we spend some time on examples from the world of sports because, hey, we're in Virginia.

Kim Krawiec: We've got a couple of questions now, really, about the methods employed in the paper and some of the motivations. So. Rider.

Kim Krawiec: Go ahead.

Reidar Composano: Hey, thanks for coming. I'm hoping to understand what led you.

Nate Oman: Down this path of legal research.

Reidar Composano: Does it stem from the 13th Amendment history in the shadow of the 14th Amendment, from some perceived efficiency benefits of specific performance, or is it something else? And also, if your motivation changed your developer and your research, it would be great to hear about that change and how it affected the final version of your article.

Nate Oman: So I got interested in the article. I got interested in the project through the confluence of a couple of different things that I was reading at the time. So one, I was reading just the contract law literature on specific performance. And there's a big debate about is it efficient? Does it implicate important normative or moral questions or something? So I was interested in the question of specific performance. And then just on my own, because I'm a geeky kind of guy, I was reading books on slavery in the history of Reconstruction, and I was just really struck by the dichotomy of these arguments about specific performance of personal service contracts in the modern courts, which aren't actually fairly rare because most people are just at will employees. And so the issue of specific performance just never comes up. So the cases for a specific performance was coming up was almost always in the case of like, very elite kinds of employees, right, employees who have oftentimes very significant bargaining power, they were very well compensated. These people are doing really well in life by and large. And then the juxtaposition of reading about those folks and then reading about the condition of slaves and of African Americans in the Jim Crow South where the sort of law was being developed, and it just struck me that these were not the same situations. Like, the equation of these situations struck me as implausible and at some level a little bit morally obscene and sort of it was that disjunction that got me interested in it. And then the other thing is that by writing this article, it gave me an excuse to do a bunch of historical research that I thought would be a lot of fun. And I do confess that a lot of my research agenda is sort of dictated by what kinds of books do. I think it would be interesting to.

Kim Krawiec: Read my research, Nate, as you know, is dictated by what will allow me to avoid the Constitution. And you have messed with that. It's going to put that out there. This is how dedicated I am to you as a friend and colleague.

Nate Oman: I will say I have a similar reaction to Kim in terms of the Constitution. Like I don't like it. I think we have too much constitutional law. And so one of the other things that was motivating this paper was I did have this sense that there should be more room for debate in the context of specific performance and personal service contracts. I could imagine cases in which I think, sort of independent of the constitutional issue, there could be a sort of reasonable moral or economic case that could be made for specific performance, personal service contracts, not every case. But it struck me as sort of an open question. There was just like this sort of conversation stopper thing that would happen where people say, well, that just violates the 13th Amendment, and so we can't talk about it. And part of my motivation during this paper is I just got to get the 13th Amendment out of the way so that we could have a more what strikes me as a sort of more reasonable conversation about the merits of specific performance in certain cases.

Kim Krawiec: Mary has a question about your four factors.

Mary Talkington: Hi, Nate. Thank you so much for joining us today. As professor said, I had a question about the four factors that you determined were the hallmarks of involuntary servitude as that term was understood when the 13th amendment was adopted. I guess my question is why? These four factors in particular say that it wasn't entered into in a perfect state of freedom, the lack of compensation or bona fide consideration. The work extended over a long period of time that was greater than a year, and that there was a complete domination of the master for the servant. But were there any additional factors that you considered? I understand your general approach of going back and looking at the state constitutional provisions, but if you could just expand a bit on your process there.

Nate Oman: So my process is that I looked into the sort of history of the text of the 13th amendment, and I discovered or discovered the wrong everybody knew this but me, and then I learned it. Right is that the text of the 13th amendment had a really long history before the 13th amendment, right? Amendment is actually older than the constitution, right? It goes all the way back to the Confederation Congress and the Northwest Ordinance. So this was a language that had been around for a long time, and it had been around for a long time as legal language. It wasn't like a political slogan or something like that. This was a language that had been incorporated into numerous statutes and constitutions. So it was the legal language. And what I was initially just interested is how had that legal language been construed prior to the adoption of the 13th amendment? And so the reason I look at those four factors is what I was looking at initially was the case law. I was looking at how had this term been construed in state and federal courts, overwhelmingly state courts, prior to the adoption of the 13th amendment. So when people were leaving over this language, how did it been used? And the four factors I came up with is those are the four factors that I think show up in the case law that construe this language. I did consider other things. So one thing that I had thought of and this was basically this shows up in later date, like in the penis case before the US. Supreme Court, where there are justices there that suggests that any kind of criminal penalty for a reach of contract with the involuntary servitude. So I went into the research think, well, maybe that's what I find. And I just don't think that's there in the case law. I don't think people understood lawyers and judges understood involuntary servitude as embracing any kind of a punitive sanction for breach of contract. And so if you look at the cases, the factors that showed up were those four factors. The other thing reason that I hit upon those and this I was somewhat surprised about, is that when I looked at state constitutional conventions, particularly around the time of the 13th Amendment, right? Because around the time of the 13th Amendment, there are numerous states that are also adopting prohibitions on slavery and state constitutions, and they're all using the same language, or they're almost all using the same language. And so if you looked back at the ratifying debates in the state constitutional conventions, what's interesting is those guys understood that they are using a legal term of art. And when they're debating about what's going to be the consequence of incorporating this legal term of art into the Constitution, they're usually talking in terms of one of those four categories. So I hit on those because those are the four things that kept showing up over and over and over and over again and again. The thing that I was expecting to see and didn't was like any kind of punitive sanction for breach of contract would be involuntary servitude. And that's not there.

Kim Krawiec: Ryder and Marley had similar questions. I thought about your interpretive approach, and it might make the most sense, ask them one after the other and then have you answer them together. Nate but once you hear them, if you feel that that approach doesn't make sense, we can shift course. So I'm going to start with Marley. Hi, Nate.

Marley Peterson: Thank you again for being here with everyone at the class. So I was also just wondering about, like, early in your article, you say that you're going to stick to an originalist, like, textualist perspective. And I was just wondering how you considered a different approach, like maybe living constitutionalism. And if you had, do you think that you would have come to the same conclusion, or did you, like, contemplate trying different interpretation styles? And also, if you could just give some background on why you picked the originalist textualist approach.

Nate Oman: There, I guess, a couple of answers. So first, on living constitutionalism, I confess I don't quite know what that means in terms of, like, a methodology for dealing with the meaning of a constitutional provision. I don't consider myself like, a hardcore originalist or textualist by any means. I take it, right, that under any theory of constitutional interpretation, what the text means matters, right? And under any theory of constitutional interpretation, if I got a legal term of art in the text, I'm going to care about what was the meaning of the legal term of art at the time the text was adopted. So I would hope that the research and the paper would be useful to people who aren't necessarily solely committed to textualism and originalism as theories of constitutional interpretation. I will say I don't think textualism and originalism can answer every question that one could have about the Constitution. But I'm like Kim. I don't spend a lot of time doing constitutional argument. I think I have one other article where I talk about the Constitution that's.

Kim Krawiec: More than me.

Nate Oman: Yeah. So I've been slumming it a little bit more, a little bit more than Kim has. The other reason I'll say that I took the sort of textualist and originalist approach that I did here, and it's a particular kind of originalism that I'm doing here. It's what Larry Solomon calls semantic originalism. And I don't think, like, most originalists are actually semantic originalists. So I'm not doing, like, the kind of analysis, for example, they do in Dobs, which is like, the time this text was adopted, there were all of these laws that prohibited abortion, and so therefore, they couldn't possibly have understood the text who prohibited abortion? Or something like that. I'm looking at the meaning of the words, right? So these were words. They were legal words. What was the legal meaning of these words at the time that they were adopted? Not like, what was the practices that were going on? There were tons of practices going on in the United States at the time of the adoption of the 13th Amendment that under my interpretation of 13th Amendment would be totally unconstitutional. And if we were to just sort of say, well, practices that were happening at the time, tell us what is allowable under the text, you'd come to a very different meaning. I will say there's another sort of mercenary reason that I took the approach that I did, and that is that a number of other writers, leo Vanderbilt, comes to mind. I think I've done really good work where they've looked at the 13th Amendment from a sort of non textualist approach, and they've tried to sort of say, well, what's the sort of political theory or the impetus behind the 13th Amendment? And then trying to sort of work out what could be the possible constitutional implications if we sort of said the 13th Amendment sort of enshrines that particular political theory in the Constitution. There's also work that's been done on popular constitutionalism, which doesn't seem to be quite as in vogue now as it was 1020 years ago. But the idea there is, like, how did ordinary people have used the 13th Amendment? And so there's been some interesting work that's been done by labor scholars about how the 13th Amendment was used by labor activists in the late 19th, early 20th century as a sort of touchstone. One thing that hadn't been done, there was just a gap in the literature is nobody done what I did in this article, which is go back and say, okay, let's treat this as a legal term of art. Let's look back in the premification legal materials and figure out what was the meaning of this legal term of art. The other thing I will say is, because I had read a lot of really good historians, eric Foner and others, on reconstruction and slavery. One thing I also realized is. Like my limitations as a lawyer and a law professor. I don't think I'm like the guy you want to provide you with the sort of deep political history of the 13th Amendment. But I'm like an adequate lawyer. And so I do think I can go back into the legal materials and try to distill and organize those legal materials into a format that makes them just a little bit more coherent and usable. So one of the reasons that I took this sort of semantic originalist approach rather than something like Leo Vanderbilt's approach, which is much more ambitious in terms of looking at that sort of political theory underlying the 13th Amendment, is that I just don't think I'm as smart and as knowledgeable as Lilia, and I just wanted to do lawyer stuff.

Kim Krawiec: So I'm going to turn to Writer, perhaps for a follow up. I think that this discussion answered a lot of his question, but he might want to follow up. He had some specific questions about Lee. Is it lee or lea? I always say Lee, but I'm not.

Nate Oman: Sure if that's right. You're probably right. It's ambiguous.

Kim Krawiec: A yes, despite the spelling. I thought it was Lee, but I could be wrong.

Nate Oman: I think you're right.

Kim Krawiec: Okay. I wasn't sure he was so nice.

Nate Oman: And giving me comments and criticisms on this paper too, but that was probably.

Kim Krawiec: In writing, and so you wouldn't necessarily know the pronunciation. So, Writer, do you want to follow up?

Reidar Composano: Yeah. So outside of the motivation for taking your approach, I'm curious what you think your approach brings to the table that an analysis like Vanderbilt doesn't.

Nate Oman: So one thing is, I think it's more practical in terms of making sense of the text, and it's more tractable in the sense that one of the things I was interested in doing in this paper was sort of starting to move toward, like, a doctrinal framework for just answering the question of when is something involuntary servitude and when there's something not. As much as as I admire a lot of the other scholarships that's been done, I actually don't think that there's been a ton on the 13th Amendment that's been done, particularly on this question of involuntary servitude that gets you towards something that would be like a doctrinal framework that a court could use. And because I sort of backed into this question because I was interested I'm interested in ultimately in contract law. That's my real area of research is that I was interested in saying. Okay. If the 13th Amendment means something in the context of what kind of remedies should be available for certain kinds of breaches of contracts. How do I tell what kinds of contracts might be subject to a 13th Amendment analysis and what side of contracts wouldn't be subject to a 13th Amendment analysis? And the other work that's been done in this area I just don't think gives us necessarily really usable tools for just answering that very kind of concrete doctrinal question. And that's part of what I was sort of interested in trying to do in this paper. I also probably have a different kind of stance towards this in that I think that most of the folks who have looked at this question. The sorts of people were just interested in the Constitution and so they want to find cool things to do with the Constitution or they're really interested in these debates about what's the one right way of interpreting the Constitution and making sure it's misinterpreted. I will tell you my basic kind of normative prejudice here is that in this area, the Constitution is probably, like most, like injecting constitutional law into these arguments, I think is probably like mostly pernicious. Like, if I'm interested in talking about massive inequalities of bargaining power or something within contract, I actually think the kinds of tools and discussions that we have in something like Unconscionability actually work better than debates about the 13th Amendment. I actually think, like, figuring out the precise meaning of what was happening and what has happened since when that text was adopted by the Reconstruction Congress is that actually not the best way of thinking about what's a good way of coming up with contract law remedies? And so part of it is like, I just want the con law people to stay in their lane and let contract law just do its thing. And so I will own that. I just have a bias towards a sort of narrower interpretation or a narrowing interpretive approach to the Constitution and this provision. And I'm sure that's like part of what's sort of driving what's going on in this paper. And to the extent you're a con law person, you're really enthusiastic about the Constitution and you think this is the legal tool to use to make the world a dramatically better place, then you might want a sort of looser and more expansive interpretation. I just think there's lots of legal tools that we have to make the world a better place. And it's not obvious to me that interpreting the 13th Amendment is the best way to do that in the context of what kinds of remedies we want for personal service contracts. Unlike everyone else, I hate the Constitution until I really like it. And I do think there are conditions that I think are like involuntary servitude, the abolition of slavery, and the sort of battle against the legacies of the badges and incidents of slavery. That's one of the sort of great stories and great kind of moral streams of American politics. I want to acknowledge that and certainly give some kind of voice to it. But when we're talking about multimillion dollar contracts by college football coaches, they're not slaves. They're not anything that's close to slaves. It's just not I think a useful way of thinking about the problems in those sorts of cases to say, are these people like the newly free slaves that were dealing with the blackouts in Florida in the 1860s and 1870s? I think the answer like, they're not. And there's something a little bit more obscene to me about the equation.

Kim Krawiec: I think that's a good segue, perhaps, into our next set of questions. And I'm going to start with Ryan. There were a couple of questions about any potential difficulties or downsides to this particular interpretive approach given sort of changing conceptions of domination and subordination. So, Ryan, I'll let you start us off.

Ryan Fitzgerald: Hi, Nate. Thanks for being with us today. Yeah, I think there's dovetailing off of what you just said. Obviously, you employ an originalist and textiles argument in your paper, and I think that that creates kind of an interesting line drawing and interpretive philosophy for how courts might deal with this if it came to be the regime today. And so, obviously, courts would be the ones deciding it. But I think that it would be very interesting to hear what your thoughts and opinions are on how the modern definition or how courts might interpret your factors of perfect state of freedom or lack of compensation, and in today's context, in particular, what complete domination might mean.

Nate Oman: Yeah, so I think if you look at the cases that were construing this language in the decades and it was a long time, I mean, that's the other sort of interesting thing about the 13th Amendment. It wasn't like this was a legal language they came up with in one or two. This was legal language that had been around for decades and decades and decades, and it had been construed. So when they talk about perfect freedom, what they mean, at least in the pre 13 Amendment case laws, they mean you can't be enslaved and you can't be indentured servant. It just doesn't matter what an indentured servant or what a slave signs. That just doesn't matter if they signed it or not. And then for domination, what they're talking about in those cases is physical domination, because what's happening right, procedurally in these cases, and this is something that to me was very interesting is nobody's ever trying to specifically enforce these contracts. Contracts. I put them in scare quotes. No one was doing that. What was happening right, was slave owners were taking slaves across the Ohio River, were having their slaves sign some piece of paper, and then when the slave in Indiana or Ohio walked away, the slave owner would go out with, like, dogs and physically capture the person and bring them back into slavery. And then the procedural way in which the cases were being brought was actually under the rid of habeas corpus. Right. Is normally we think about the habeas corpus as a remedy against the government. But these were cases where habeas corpus was being used as a remedy against a private party and basically saying like. You have Mary Clark. Like you've kidnapped Mary Clarke and you have to explain why you have a legal right to kidnap Mary Clark. So I think that's what physical domination means. The other thing is there's also references in the cases to physical and sexual violence against the servants. So when we're talking about domination, we're talking about domination at least in the pre 13th Amendment case law in very sort of very visceral, violent physical way is what we mean by domination. Now we could say we have sort of more expansive notions of domination out today. And I think that here you're getting into deep questions about constitutional interpretation and this is not my Baileywick, but I do think it would be sort of consistent with a semantic originalist approach is to say what involuntary servitude meant in part was being dominated. And so now what we're going to do is we're going to have sort of normative discussions about what constitutes actual physical or what constitutes actual domination. And I'd be open to the idea that it could be more than just the brute fact of violent physical intimidation. But what I would say is that's the core case, the core case is violent, brutal intimidation. And so what I would do in my lawyer brain is I'd want to argue by an analogy from there, and I probably am not going to be terribly sympathetic to arguments about, like inequality of bargaining power means that there's domination or the fact that you have to have paid employment in order to live means that you're subject to domination just because. I think that those are situations that are actually quite different than being kidnapped and beaten and subject to sexual exploitation and abuse. So I think that's different. I also think that when we're talking about inequalities of bargaining power or something like that in contract, we have to think really carefully about the legal approaches that we're using and the sorts of institutional frameworks those are going to create and what are going to be the long term consequences in terms of the incentive that those institutional frameworks create. And I frankly have very, very little faith in the ability of constitutional lawyers construing the idea of domination to get those kinds of questions right. I suspect those are going to be very context and institutionally specific. And again, I think the tools of contract law are probably a better way of thinking about those. Something like Unconscionability would be a better way of thinking about those or Duress would be a better way of thinking about those then thinking about it in terms of the 13th Amendment, both Marley.

Kim Krawiec: And Megan had questions along these lines, which I suspect you've already answered. But Marley or Megan, if you want to follow up, you can both asking about this definition of domination and sort of how we fit things like wealth inequality and race inequality into it. Do you guys want to follow up?

Nate Oman: Okay.

Marley Peterson: I think for me, the only thing I think about is that, okay, we're talking about the 13th amendment, like, whenever it came out regarding enslaved people, cattle, slavery in the US. I think that one thing that could also be addressed is that as that has now been outlawed in general in the US. What about the legacy or the remaining parts of it that still affect people, their descendants, and then the structural inequality? And I think you kind of already touched on it regarding or maybe there's a different way to approach it, but I think that that's worthy to consider and to think about, which is that, well, it wasn't like the vestiges of slavery, just, like, poof went away whenever it was outlawed. And there are people that still, like, bear that consequence and have this big wealth gap between black families, latino families are different people of color versus, like, white families. And so I think that it might be something that should be considered whenever we're thinking about this, because the idea of domination, while physical domination regarding enslaved people is no longer something that legally should be going on in the US. Even though we know that slavery still exists today in different forms, but the remnants of it and what domination could be from that physical domination still exists today.

Nate Oman: Yeah, I agree with that in the sense that I think you can't think about the 13th amendment without also thinking about race and the legacy of race in american society and american law. So I'd respond in a couple of ways. One would be to say is, I'm actually the 13 amendment has a number of clauses, right? So it eliminates slavery. It eliminates voluntary servitude. It's interesting because there's no state action requirement, right? So if you enslave your sister, you personally are violating the 13th amendment of the constitution. But the 13th amendment also contains a grant of authority to congress of enforcement power. And one of the sort of legacies of the gutting of the reconstruction amendments that happens in the second half of the 19th century is a very narrow interpretation of that enforcement power. And one thing that I would be very friendly to is a very expensive reading and the enforcement power of the 13th amendment. So I think congress actually has a lot of power to regulate stuff under the guise of eliminating the badges and incidence of slavery. So I think, like, the civil rights cases were wrongly decided because I think congress had the authority to pass those statutes under the 13th amendment. The other thing to think about in terms of the legacy of race is that one of the ways in which african americans were and have been excluded from full participation in the economic life of the United states is by restrictions on contractual capacity. So one of the things, for example, that the black codes that were. Passed in the wake of the emancipation did is they dramatically reduce the ability of African Americans to enter into contracts. So they were unable to enter into contracts without going through certain onerous formalities. They were unable to enter into contracts, in some cases without having a contract witnessed by a white person, right? And part of what the 13th Amendment and the 14th Amendment were doing was they were trying to eliminate this regime and make sure that African Americans were given full access to the ability to enter into contracts. They're given full contractual capacity. And I note right, contractual capacity. Limitations on contractual capacity is another way in which women have been historically excluded from full participation in economic life. So when we're thinking about the role of race and the legacies of slavery and all of the forms of social and economic exclusion and inequality that have flowed from that have been played out in American society, one of the things we have to remember is that one of the ways in which it got played out was by limiting the contractual capacity of African Americans. So to the extent that we are reading the 13th Amendment in very expansive terms to invalidate contracts. One of the things that potentially we run into the danger of doing is saying that we're going to limit the ability of African Americans or other minorities to enter into contracts in a way that we're not going to be limiting the ability of those in other racial groups enter into contracts. So that, I think, is also potentially troubling. Which is not to say that I think it's irrelevant to consider the social circumstances that people find themselves when they enter into contracts and the enforceability of those contracts. But again, I tend to think that the tools of unconscious ability are a better way of doing that than the cool tools of constitutional adjudication. And I am queasy about arguments that have the effect of saying that certain groups have limitations or difficulties in entering into contracts that other groups don't. I'd be much happier with saying if there are certain kinds of contracts that just people shouldn't enter into, we should just say nobody should enter into those sorts of contracts. I don't like racial differentiation in terms of contractual capacity because there's a nasty history associated with that in the United States.

Kim Krawiec: So I'm going to turn to Jen.

Jenn Scoler: Yeah. So I know that we spoke a little bit about the four factors, and I apologize if I'm being repetitive here, but if you could scratch all the factors and rewrite them from scratch, would you change them? Would you modify? Would you keep them? In other words, how effective do you think that the factors are in examining the situation, whether involuntary exists in the situation? And do you think that they are as applicable today as they were when they were first introduced?

Nate Oman: So if I was just to come up with when I think about what the 13th amendment is trying to do. The sort of beauty ingenious it seems to me the 13th amendment is to say that the 13th amendment is one of the few places in the constitution where instead of saying we're creating restrictions on what the government can do or powers for what the government can do. 13 amendment. As I said. Grant certain powers to Congress. What we're instead doing is we're just saying is that as a constitutional matter, there are just certain kinds of conditions that cannot exist within the United States without violating the constitution. So to me. It seems like that's a pretty narrow range of stuff that we want to do where there are certain kinds of social questions that we just want to constitutionalize. Not because I want to say that there are certain things that aren't important. But it's just that by virtue of constitutionalizing them. It means that we embed those kinds of questions in a particular kind of legal discourse. And we give a lot of power to particular kinds of institutions to deal with those questions rather than other kinds of institutions. And so I think we want to just ask, is constitutional law the best way of solving these particular kinds of problems? If the problem for involuntary servitude is what we're concerned with is the elimination of slavery and then the elimination of domination that is akin to slavery, I don't think those four factors are such a bad way of getting domination that is akin to slavery, right? Because you're getting at the question of the voluntary no in which people enter into the transaction whether or not there's compensation is this unrequited toil? Which I think is a sort of nice slogan that gets at one of the evils with slavery and the question of personal freedom of the people who are within the relationship. Whether or not you want to sort of expand what counts as perfect freedom or not perfect freedom, domination or not domination, unrequited or not unrequited toil or the final one, the temporal limitation. I think there are all sorts of reasonable debates that one could have within that framework. But I actually think that in terms of the factors to focus in on, I think they got the factors not bad, which in some ways is not necessarily what we would expect, right? Because courts have the ability to screw things up and to screw things up for long periods of time. But one thing that I think kind of decentralized common law adjudication does is it's a good kind of incubator of ideas and of trying to work out how we can put ideas into practice. And it's not totally surprising to me that over decades of grappling with the question, courts came up with at least a set of factors that point us in the right direction in terms of how to start thinking and considering those questions. So I actually kind of like the four factors. And then it may just be like I'm seduced by authorship. And so because I wrote an article about it, I find it more persuasive than it in fact.

Kim Krawiec: Is that's as good a reason as any? Nate?

Nate Oman: It seems like that point us in the right direction in terms of asking the question.

Kim Krawiec: So we had one final question on this sort of constitutional aspects before moving on to a set of questions about policy and efficiency and contract law itself. And so Caroline had, I thought, an interesting question about sort of the operation of the four factors with each other. Caroline.

Nate Oman: Hi, Nate.

Jenn Scoler: Thanks for being here. So I have some questions kind of related to the application of the four factors. So you mentioned that based on the original meeting of the 13th Amendment and early judicial interpretation, nothing forbid the court from ordering specific performance of a contract that does not involve any of the four elements. So I would like to know some of your thoughts and situations that are not as clear cut with all factors pointing in the same direction. So in application of these factors, do you think that any of the factors would be weighed more heavily than others when determining whether or not a situation is protected by the 13th Amendment?

Nate Oman: It's a good question. I will say that I didn't find just if you're doing the semantic originalist analysis, right, and we're saying, well, this is legal term of art, what was the established legal meaning at the time of adoption? I don't think at the time of adoption there was an established legal meaning that said, like, all the factors had to be present in order for there to be involuntary servitude. I don't think the doctrine was that fine grained at that point. So it's just a matter of constitutional interpretation. Like whatever it is that you do in constitutional interpretation after you've done your semantic originalist analysis, I think there's sort of wiggle room in there in terms of those factors. I think that the ones that would be the most important would be the first one and the last one. That is, was the contract entered into in a state of freedom or were you coerced in some way into entering into the contract? Is the extent to which the contract involves ongoing domination or coercion of the party who is in the contract? So I think those would be the two things that would be sort of the most important. I will say that just like as a contract guy, one of the things that I find interesting is that there was concern about consideration, right? And so the issue here is that there were these older legal regimes going back in the 18th century and before of debt servitude. And you also see this in the penis cases coming out of the Southwest where people didn't promise that they were going to work for someone. Instead, what happened is they contracted debts and then the remedy for debt, for the nonpayment of debt was that you had to do all of this work. So one of the things that I think, for example, the Ohio constitution is doing when it says there has to be bona fide consideration is it saying no debt servitude? Right? Is that any personal service you're doing has to be personal service that you promised to do, not something that's being imposed on you by a matter of law. And not only do you have to be promised to do it, you have to be paid for it and it has to be real payment. It can't be just like a nominal kind of payment. You have to be compensated for the work that you're doing. So to me that's really interesting because it suggests that there might be some constitutional basis for an inquiry into the adequacy of consideration on a contract which just as a contract to me that's interesting. But in terms of the sort of normative half, I think it's voluntariness and domination are the two most important things.

Kim Krawiec: A lot of the questions that are going to follow relate essentially to what would happen if courts were to follow your lead and allow specific performance as a matter of constitutional law. In other words, should they also allow it as a matter of contract law? Would that be good or bad as a matter of policy, of efficiency, of fairness? Now you explicitly don't deal with that in the paper and if you were a normal guest I might tell them that that's beyond the scope of the paper. But you're an expert in this field and teach and publish widely on these topics and so we thought that it would be okay to just sort of get your views on then the policy implications of your intervention from a constitutional perspective. So let me turn it over to Mary to start us off.

Mary Talkington: Hi again, thank you so much for being willing to discuss the policy implications with us. I guess my question is pretty straightforward. Just assuming the constitution is not a conversation stopper and that we are going to just start looking at having a conversation about things like what makes sense from policy perspective on constant ability. Do you think that we should allow specific performance of personal service contracts in all cases that would not constitute involuntary.

Jenn Scoler: Servitude.

Mary Talkington: If not all personal services contracts that would not constitute involuntary servitude? Our feelings just vary depending on the facts situation. I know you said that certainly seems to be something very off considering the situation of a football coach or a pop superstar that is making millions of dollars. Like if they're forced to contract that they're very well informed about, maybe we don't feel too bad about making them do that. Just any thoughts you have on that area.

Nate Oman: I think there are cases where I would be willing to support specific performance, personal service contracts. If you go back, ignore the constitutional stuff and you just go back to where did this rule come from which said no specific performance for personal service contracts? It comes out of the equity courts. And the equity courts concerns about providing specific performance for personal service contracts are actually deeply practical. So their concerns have to sort of fall into two categories. There are concerns about the ability of the courts to effectively enforce their injunction. So one thing they're concerned with is if we order someone to perform, how can we tell if they're complying with the injunction or not complying with the injunction? So if there's an opera singer and the court orders the opera singer to go and sing and the opera singer is like shirking and she gives a bad performance, does the court then find itself in the position of having to monitor and decide, is that performance good enough or do we think that you have been in contempt of court? And the idea of contempt of court was contempt, right? It was about the object of the injunctions for the thumbing his or her nose at the court and you're not allowed to do that. So that was one set of concerns is the ability of the courts to monitor. The second was about forcing people in sort of poisonous relationships to work with each other. So there's a litigation between the employer and the employee and now we issue an injunction and we're going to force the employee to work for the employer in this sort of toxic kind of situation. So it seems to me is that those initial concerns to the equity courtesy of not actually present in all cases of personal service contracts. So in some cases we might order a personal service in a situation where there are really strong reputational reasons for someone to not shirk. And the court might decide that, look, those reputational reasons not to shirk are strong enough that we're not going to worry too much about that. And we'll just say, did you formally comply? Like did you coach this football team or did you perform this concert or something like this. And then we'll just let the reputational consequences police the rest of it. The other thing is that in situations where we're talking about people being forced to work with each other in poison relationships, if any ports are imagining personal service contracts in highly personal terms because those are the cases that they are coming up before them. They're thinking about like a master and a servant or something like that. I'm not sure that makes the most sense in terms of how we would think about. Say. The relationship of a college football coach to a university because the college football coach is actually working mostly with the coaching staff and the players and something like that. And the parties with whom there's a poisonous relationship like the president of the university and it's not as though that we're forcing them into this sort of position that's sort of constantly being monitored and controlled by the present university. So in large institutions, it's not clear to me that those sorts of concerns that the equity courts had are always present. That said, there are all sorts of situations they would be present. So I don't think you want to have like a per se rule that you can always performance or something for a personal service contract. But I think it would make sense to say, well, just in terms of the equitable doctrines, are those concerns that they had actually going to be present in this case? That's where the delay courts are interesting because this question of the poisoned relationship issue which comes up in the M and A context. But the doctor courts have said there is like that's a risk that people can accept when they enter into contracts. And when the person is asking for specific performance, they understand that they're asking for specific performance from a party with whom they're going to have some kind of a relationship that may not like them that much and people can sort of make their choices about whether or not they want to put themselves in that relationship. And then the object of the injunction in the M and A case is the Delaware Chance Report seems to be saying something like, look, when you entered into this contract, you understood that you're going to be in a relationship with this person and that relationship might go bad. And so you sort of accepted the risk of that happening. So I think this is a nice example of why I don't like constitutional law because I actually think the equity doctrine is actually asking a better set of questions than the constitutional doctrine is asking. And so I would start as a doctrine. I'm just looking at all those actual concerns present.

Kim Krawiec: You won't be surprised to know that we spent probably when we discussed this in class, we spent the next, say, 45 minutes talking about sports. And so the next two questions are some of those sports examples that emerged. It might make the most sense to have Ryan ask his question. Brian, you have like what is kind of an extension or variation on that? And then have Nate deal with them both together because I think they raise similar issues. So Ryan, then Brian and then Nate can respond.

Nate Oman: Yeah.

Ryan Fitzgerald: So I think that a lot of our discussion was just focusing on what the practical consequences of such a regime would be. And the example that I brought up was NBA contract dispute case. Obviously this just happened with Kevin Durant and the Brooklyn Nets and while it's not a court order, the Brooklyn Nets basically would not allow him to be traded even though he wanted to get out of his contract. And so now it'll be interesting to see how it plays out. But it's played out in the past where when these disputes happen and the team forces someone to play their contract, they end up not playing well or just kind of coasting until they can get out of their contract. And so I think that just shows that it might not be the most beneficial or efficient outcome for both parties. And I think that we just want to hear your thoughts on what you think the practical regime would be and what if they safeguard could put in place to safeguard against those consequences.

Kim Krawiec: This let brian asked his nate, if you don't mind.

Nate Oman: Sure.

Kim Krawiec: Because we don't want to only talk about basketball to the exclusion of football, and that is coming next. That's actually not true. I only want to talk about basketball and never football, but I am from North Carolina. Okay. Go ahead, Brian.

Reidar Composano: Hey, great to meet you, Nate. Initially, taking your college football coach example, I was initially inclined to be like, yes, specific performance. These guys are making a boatload of money. Make them finish these contracts. Because when you're looking at the professional, even the collegiate level, these are arms link contracts. The bargaining power is equal. But I do think that initially it's hard to quantify the monetary damages, but I think there's so many other things that come into play that would make it difficult for specific performance just because so many people down the line that are going to be impacted by a coach's decision to leave. So let's just take Lincoln Riley, right, probably enemy number one in Norman, Oklahoma, and so his decision to leave at the end of a recruiting period. Now you have blue chips that are going into the transfer portal or they're decommitting from their letter of intent to sign, and then you've got boosters involved. If you got players that are already on the team and now they've got a lamed up coach, maybe they're looking to transfer. It's hard to wrap my mind around, like, forcing Lincoln Riley to continue to coach, but at the same time, so many other people are impacted because they made decisions to come to his program because they had this belief that he was going to be the coach that would get them to the next level. And when you take that into account, I don't really care if Lincoln Riley loses out on money. And it's possible they could actually just coach poorly and that college football teams are incredible. Wait out and a team like USC would just wait and hire them after knowing that, okay, yeah, we know that relationship was poisonous. We'll wait that out and we'll get them, we're still going to get the same code that we thought we were going to get. So I just want to get your thoughts on that as far as in that situation. There's so many other people impacted by forcing Lincoln Riley to stay in coach. How does that impact your feelings about specific performance.

Nate Oman: So most of the questions get the issue of how good would the performance be if you ordered someone to do specific performance. I think it's important though to realize is that the fact that there's an order of specific performance doesn't necessarily mean that the contract will be specifically performed. What the order of specific performance does is it changes the bargaining situation of the two parties. So in the NBA example, when the team is refusing to let the player transfer, or in the coaching example, if the university is litigating trying to keep the coach to transfer, it may well be that their goal is not to prohibit transfer. They may actually want to transfer but what they want is to be bought off to allow the party to have the right or the ability to transfer. So one way of thinking about this is just in terms of what do you do when two parties enter into the contract and then after the parties enter into the contract, one of the parties to the contract has an opportunity that would allow them to profit from the event of breach. If we have a regime of money damages, essentially what happens is the value of that opportunity is captured entirely by the breaching part. If we have a regime of specific performance then in order for the party who's received that opportunity to profit from it, they have to get the permission of the counterparty to their contract to do so. And what that means is that the counterparty is able to capture some of the benefit. So one way of thinking about the order of specific performance is it's a distributional mechanism that basically forces, okay, it forces parties to split the economic benefits of breach, whereas a regime of damages allows one of the parties to capture all of the economic benefits of breach. It may well be that x Auntie I want to be able to commit to splitting the economic benefits of breach and I could do that in lots of ways. I'd have an outlaws in my contract but one way I might have it is I might have a willingness to give specific performance in the event of breach. That is I commit to bargain with someone over the benefit that I might get from breach. And it seems to me that it's entirely reasonable to think that exhausted, there are some people that would want to be able to credibly commit to bargain to split the benefits from some breach and that's in effect what specific performance is doing. So one way when you think about this is I don't think you can think about it in terms of we're going to force performance and then performance is going to happen because oftentimes what's going to happen is there's not going to be negotiation and then parties try to put pressure on one another in negotiation and that to me is that's just contract law. That's just ordinary negotiation. I don't see anything particularly morally or normatively problematic with that kind of negotiation. The question of whether or not we consider the consequences down the road to third parties ordinarily in contract law. We don't. Unless someone is a third party beneficiary to the agreement. We don't usually use contract law to think about what are the consequences of someone's actions on third parties. Contract law is about sort of internalizing the cost of performance and breach as between the parties to the contract. So my sort of private lawyer says, well, the third parties, we deal with that in court. And so then the question would just be is there some sort of tort or stoppel claim that those third parties ought to have against the coaching to the contract or could they rise to the level of being third party beneficiaries? Answer those probably. Try not. Probably not. But I do think that we've got institutions for dealing with questions about third party effects that probably are better at dealing with those than are like the law of contract remedies. Right. That I would think about those in terms of a Stople and in terms of tort.

Kim Krawiec: You know, Nate, one thing that I thought about Brian's question, leaving aside the third party questions here is just to me, he's describing an environment where actual damages are very difficult to calculate, which strikes me as being precisely the case where specific performance would be most warranted. And I don't know whether you had thoughts on that. A lot of the elements of some of these complicated cases strike me as being arguments in favor of specific performance, not against it.

Nate Oman: Yeah, I think I would agree with that. Right. In that what specific performance does one way of thinking about it is that damages allows a court to set the price of breach. Right? Specific performance requires the parties to negotiate for the price of breach.

Kim Krawiec: And in a case like this, they certainly have much better information about better information.

Nate Oman: So then the question is, if we're just thinking about it in efficiency terms is do we think that there are pathologies in the bargaining process? Right? So one problem we have in a case of specific performance is that in a case of specific performance we usually have a bilateral monopoly, right? That is, that if I want to be released from my contractual obligations, the only party from whom I can buy a release is the party that is, the party who has the right to my performance. Right. And ordinarily the party with the right performance, the only person they can sell release to because the only person wants to buy it would be the counterparty to the contract. And we know when there's bilateral monopolies, there are bargaining pathologies and inefficiencies. So then the question is, are the information inefficiencies of the court setting the price worse than the bilateral monopoly bargaining inefficiencies from forcing bargaining? I will say in the college football coach camp sample. We may well be in a situation where there's not a bilateral monopoly, right, because LSU may be willing to buy out the specific performance, right, from Vanderbilt. And if that's the case, then I think that actually is a powerful argument in favor of your intuition. Kim right. Because that's a situation where we say the parties have got better information about this than the Court's going to have, so just let them bargain. And it's not a case of bilateral monopoly. If there is some third party that might be willing to kick some money into this thing, we may have a sort of more efficient situation. And that's the kind of situation where it seems to me is like the courts and exercising some kind of equitable discretion, they're probably in a pretty good position potentially, to make those sort of fine grained distinctions, like saying, well, if we order a specific performance here, do we think the parties are going to be able to bargain? Do we think that there's sort of markets on one side or the other for this legal right that is going to overcome the pathologies, and us just looking at trying to set the damages, like, how good do we think we're going to be at doing that? And I think it's a nice example of why it is that contract law doctrine just does this so much better than constitutional law doctrine. And thinking through the issues, the one pushback I would give to your interest, Kim, right. Is that it does have distributional consequences, right, in that if the court sets the price, then the breaching party gets to capture the entirety of the benefits of breach in specific performance. The breaching party is going to have to split the benefits of breach. And there is a sort of a moralist part of me that has this intuition that just says he bargained away the benefit of his performance when he entered into the contract, so he ought to split it. And part of what's wrong with money damages, right, is it lets the breaching party capture all of the upside of their misbehavior and they bargained away that to the other guy. And so the other guy ought to ought to be able to get some of that benefit. That's not an economic intuition, right? That's a moral distributed intuition. But that's an intuition that I have. I'm not sure everybody has that intuition, but that question is implicated by the exposed bargaining issue with specific performance.

Kim Krawiec: Actually, I think this is a good segue caroline had a question about that.

Nate Oman: Yeah.

Jenn Scoler: So I feel like the conversation you were just having about some of the exiente effects it might have with before bargaining contracts and how that might play out, you kind of answered my question, but getting a little bit more specific. I was thinking about service contracts, like the coaching contract in the Vanderbilt versus DiNardo case. Do you think. If specific performance were feasible remedy and it was on the table that when they were contracting people, coaches like Jerry DiNardo would be less likely to sign contracts with time requirements.

Nate Oman: So the answer is I don't know here's what I would expect to happen is that a specific performance is on the table that people would then bargain about it and that in some cases they would put clauses in their contract that just say no specific performance in the event of breach. In the event of breach I only give damages or liquidated damages or bio clause or something like that and then in other cases I would expect them to actually say no. We'll have specific performance as the contract and I'll tell you the situation in which I would expect there to be specific performance. I would expect there to be specific performance or the case where specific performance becomes important is where exante it's difficult to predict the value of a breached opportunity. If I know what the likely value of a breach opportunity expost is then I just put out a bio clause in the contract and because we can just allocate that benefit Xante pretty easily because we know what it's going to be worth and we just decide what the number is and that would be based on our relative bargaining power and then there'd be a clause in the contract that would allocate that. That'd be what the buyout clause and it would create damages clause with you. Or if we have a clause in there that says there's no specific performance we just get money damages. What we're saying there is you get buy out at the price set by a court and we think that the courtse we think excludes the court can figure out what that price is. Where you get specific performance is where for some reason the value of breach is just difficult to predict accent it might be highly variable. Maybe the coach will be really good and then he'll be really hot and everybody will want to hire him or her away and so the breach might be really valuable or it might just not be worth anything at all because he or she's a terrible coach and there's no big opportunities so there might be high variability or it might just be the complicated situation with the coaches brief. We just don't know what the cost and benefits of that's going to be in situations where x anti we just don't know what the benefits are going to be exposed. Specific performance makes very good sense because specific performance in effect is a commitment to bargain expost over splitting up a division of the benefit of breach. I don't know the answer to your question but I suspect it's going to vary and I suspect it would vary based on the sort of information cost exhausting.

Kim Krawiec: But what I'm hearing you say Nate is that you don't expect it to necessarily vary in a negative way. This is yet one of the many things that parties will take into account as their negotiating and bargaining, and there might be some instances where there are negative effects. But I'm not hearing you say that you're concerned about this possibility.

Nate Oman: Yeah, I'm not. Now, part of my assumption, right, is that we've got relatively sophisticated parties that are doing a lot of bargaining. Xanti and I will say if we're looking at the kinds of parties that enter into non employment at will contracts in which there's going to be performance promised over a period of time, those tend to be the kinds of people who are pretty sophisticated in bargain. X auntie. So for less sophisticated parties, when they enter employment relationships, generally speaking, those are like at will employment relationships. And none of this matters in the at will context. It just doesn't come up because quitting is not breach, and so there would be no cause of action if you quit your employment. If we lived in a world in which non at will employment contracts for poor and unsophisticated parties became really common, then all bets are off. I'm going to start thinking about this in a different way, but as an empirical matter, that's not really the world we live in. The world we live in is that the people who might potentially be litigating about this, they tend to be people who are in some sort of elite corner of the labor market, and they're generally speaking relatively sophisticated about how they're bargaining over these things. And so my instinct is just let them bargain over it.

Kim Krawiec: I'm relieved that all of my predictions about how you would answer this set of efficiency questions came out to be true. Okay.

Nate Oman: We've been talking about these questions for many years.

Kim Krawiec: It's almost as if right, okay. So final question is from Brian, and it's just kind of returning us to the discussion of force and servitude. I thought he had kind of an interesting sort of anecdote perspective about this that might give you a chance to talk about some of the exceptions that you noted in your paper, such as military and apprentices and shipping were a couple of the ones that I remember. Brian yeah.

Reidar Composano: So as a former Marine, I'm reading this and I'm thinking about all those junior Marines, the actual worker bees that are, okay, factor one, check. Factor two, check. Factor three, check. And they hit the fourth one like, man, I'm going straight to the Jag office. This is dangerous servitude. And then they read footnote ten, and their hopes and dreams are crushed because they realize that the armed forces are exempt. But I like to think, kind of thinking about my experiences or some of my Marine buddies experiences. Like, this isn't your arms link transaction. There's not an 18 year old that goes in with an attorney to review this contract. And it's like a conveyor belt when you get to maps, you go to this desk, you sign this. You just got some Marine recruiter saying, what does it say? Oh, this basically just says that you're going to do this and then you just sign it. Next thing you know, you're on a bus and then you're at boot camp and life as you know it is over. And in that sense, I think the perspective is that the armed forces, it's a national security thing. So you would think that, yes, that form of, I guess you would call indentured servitude in that instance is appropriate. But once you get in, I think the military can get away with so much as far as domination and control. Say, for instance, when I sign my contract, I have this one job, I get to boot camp. I graduated, your job changed. And this is something I contracted for. I get out of combat training. Oh, this is your new job. It changed again. So I ended up doing a job that I didn't necessarily contract for as part of that process. And in that sense, I guess my question is your thoughts on that. Like once you get into that exception for the armed forces, once you get in, should the military be able to use that cart blanche to be able to just manipulate and control your life from there if it's not specific to the needs of national security implications?

Nate Oman: This is a great set of questions, William and Mary. We have a ton of military students and so employment contracts are really interesting, right? If you look at the four factors, it looks like although there's a good argument, like a lot of people are entering into the contract in a situation of perfect freedom, but maybe not. So I think it's reasonable. So I'd have a couple of reactions to it. So the first is, I would say this seems like a situation where if people are entering into this agreement, where we're going to allow all of this coercion against someone on the basis of a contract, an ongoing dominating version like contract law may not be really well situated to police those kinds of agreements. And in fact, contract a lot doesn't, right? It's policed by the code of military justice. So then the question is, would we want constitutional policing of that question? And I confess, as a normative matter, I just think about it out of institutional terms. So then the question is, do you want the federal courts to do that through constitutional adjudication or do you want Congress to do that through amending the code of military justice? And there like, I confess, like, neither of these are institutions that fill me with enormous faith in their goodwill and expertise. And so I don't know which of those I would favor, the courts or Congress. I will say this in favor of the military. So the military gets really good remedies against its employees. It gets better remedies against its employees than any other employer in our society, right? Like, you try to quit and they can throw you in the bridge, they can find you, they do all sorts of terrible things to you and they can order you around. They get really good remedies against their employees. There is something that the employees get out of that and that is that the military invests more money in training its employees than any other employer. When you grow in the Marine Corps, you did not have to pay for your combat training. You didn't go to combat training school, get your tromback training degree and then interview for a job with the Marine Corps and say, hey, I graduated top of my class at the University of Virginia's combat training program. I'd like to be a Marine. Can I get in instead? You get employed in the Marine Corps, trains you to do that and they do a lot of training. I have students who are nuclear engineers that's like highly specialized training. They are nuclear engineers. They spent not a penny learning to be a nuclear engineer. The military put all of the military shouldered all of the costs of their training. The reason the military shoulders all the cost is because the military knows that it can recoup its investment because it's got really good it's got really good remedies against people quitting. So if it puts all of this money into training someone to be a nuclear engineer, by golly, they can lock that person in the submarine for several years and make them work on the Navy's nuclear reactor and they're going to recoup their benefits. The private sector can't do that because the private sector doesn't have the same remedy. So one way of thinking about this is why are you paying for law school instead of Cravath? Why can't you go to Cravath and say, I enlist in Cravath and then Cravath sends you to law school on Cravath's dime? Crevasse pays for all of your legal education and in fact pays due a salary while you're getting your legal education. And then when you get out, you're just committed to Crevasse for five to seven years and you got to work for them. One reason that contract doesn't exist and no employer will give you that contract is because they don't have the same kind of remedies that the military gets. So one advantage that you get from specific performance is that specific performance actually give incentives to invest in human capital because you can recoup some of that human capital. Now, there are other reasons why the military has longer time horizons and because it's very large, it probably can predict its needs better than smaller private firms can. And so they'll pay for combat training because they are pretty sure they're going to need a ground somewhere to go somewhere and shoot someone. And so they've got predictability in ways that smaller private firms might not have predictability. But one of the benefits you get in a specific performance world, like if we had indentured servitude, is you probably wouldn't have to pay. Or we could imagine a world where you wouldn't have to pay for your own law school tuition. And evidence that such a world exists is your law school colleagues who are in the Jack Corps, not only are they not paying their tuition at the University of Virginia, they're drawing a salary while you're accruing debt. And that's because their employment contract has a different remedy than your employment contract is going to have.

Kim Krawiec: That's all we had. Anything else you want to tell us before we let you go? No.

Nate Oman: This has been a lot of fun, hopefully helpful and useful for you guys, and I'm just delighted that there was someone who read the article and was interested in talking about it.

Kim Krawiec: There's 13 of us.

Nate Oman: It's doubled the readership of the article.

Kim Krawiec: Nate, thanks so much. It was great to see you.

Nate Oman: Yeah, good to see you. Thanks for the invitation. And hope everything's going well for you all in Charlotte's. Paul.

Kim Krawiec: Yeah, same with you guys.

Kim Krawiec: Let's get into you.