Specific performance of enlistment contracts

Military Law Review

Volumn 205, Issue , 2010, Pages 150-191

  Sagi, Major Udi ^a  

^a Samaria Division   (United States)

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EID: 79952820544     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (382)

1. THE MEANING OF LIFE (Celandine Films 1983).
2. Id.
3. Id.
4. Id.
5. See infra Part II.
6. Neil J. Dilloff, A Contractual Analysis of the Military Enlistment, 8 U. RICH. L. REV. 121 (1974).
7. See, e.g., Antonuk v. United States, 445 F.2d 592 (6th Cir. 1971)
8. Brown v. Dunleavy, 722 F. Supp. 1343, 1349 (E.D. Va. 1989).
9. As can be deduced from the cases cited in this article, courts usually address three different kinds of enlistment contract issues: servicemembers seeking discharge from military service based on their enlistment contracts; servicemembers seeking to avoid certain duties or positions based on their enlistment contracts; and servicemembers facing court-martial claiming not to be subject to the Uniform Code of Military Justice (UCMJ) because they were not legally enlisted at the time of the alleged offense. This article addresses each of these arguments.
10. Santiago v. Rumsfeld, 407 F.3d 1018 (9th Cir. 2005)
11. Gengler v. United States, 453 F. Supp. 2d 1217 (E.D. Cal. 2006)
12. Qualls v. Rumsfeld, 357 F. Supp. 2d 274 (D.D.C. 2005).
13. This rule does not apply to servicemembers' entitlement to pay and allowances, which is "determined by reference to the statutes and regulations ⋯ rather than to ordinary contract principles."
14. United States v. Larionoff, 431 U.S. 864, 869 (1977).
15. See infra Part III for a detailed analysis of the contractual nature of the enlistment contract. 9 RESTATEMENT (SECOND) OF CONTRACTS § 367 (1981) (current through Aug. 2009).
16. See also Lumley v. Wagner, (1852) 42 Eng. Rep. 687 (Ch.).
17. Rutland Marble Co. v. Ripley, 77 U.S. 339, 358 (1870).
18. See Baldwin v. Cram, 522 F.2d 910 n.4 (2d Cir. 1975).
19. U.S. DEP'T OF ARMY, REG. 635-200, ACTIVE DUTY ENLISTED ADMINISTRATIVE SEPARATIONS (17 Dec. 2009) (RAR, 27 Apr. 2010) [hereinafter AR 635-200].
20. A behavior that constitutes a capital offense. UCMJ art. 99 (2008).
21. U.S. CONST. art. I, § 8, cl. 12.
22. Out of hundreds of cases concerning the enlistment contract, a court directly referred to this question only once, stating that "enlistment contract, the kind of contract which as regards forms of service other than the military is not specifically enforceable by an affirmative decree ⋯ ."
23. Baldwin, 522 F.2d at 910 n.4.
24. Dilloff, supra note 6, at 147-48, states that
25. Id.
26. (footnotes omitted)
27. see also Captain David A. Schlueter, The Enlistment Contract: A Uniform Approach, 77 MIL. L. REV. 1 n.138 (1977) ("Although courts hesitate to specifically enforce personal services contracts, the military enlistment contract seems to be the exception.")
28. (citing Dilloff, supra note 6).
29. See supra notes 15-16.
30. UCMJ arts. 85-86 (2008).
31. Alan Schwartz, The Case for Specific Performance, 89 YALE L.J. 271, 274 (1980) ("Specific Performance is the most accurate method of achieving the compensation goal of contract remedies because it gives the promissee the precise performance that he purchased.").
32. Id.
33. See, e.g., Lumley v. Wagner, (1852) 42 Eng. Rep. 687 (Ch.).
34. See Geoffrey Christopher Rapp, Affirmative Injunctions in Athletic Employment Contracts: Rethinking the Place of the Lumley Rule in American Sports Law, 16 MARQ. SPORTS L.J. 261, 262 (2006).
35. This scenario is hard to imagine for two main reasons. First, the option to court-martial the servicemember or to impose other disciplinary action against him is readily available while a court decree takes time. Second, one legal approach to the enlistment contract holds that it applies only to one's status, and a breach of contract that changes the status of the sides does not relieve those sides of their contractual obligations.
36. See United States v. Grimley, 137 U.S. 147 (1890). See also Part III.
37. Partially through the use of UCMJ arts. 85-86 (2008).
38. See, e.g., AR 635-200, supra note 12.
39. (establishing that, notwithstanding some exceptions, an enlisted person can initiate his separations only if the Army consents to his request).
40. For example, according to paragraph 6-6, a soldier may request separation due to dependency or hardship, but the Army does not have to approve the request, since separation because of dependency or hardship is "for the convenience of the Army."
41. Id. para. 6-1.
42. Another example, under paragraph 4-4, would include a soldier serving on indefinite enlistment who requests a voluntary separation; his request can also be denied.
43. UCMJ arts. 85, 86 (2008).
44. 522 F.2d 910 (2d. Cir. 1975).
45. Id. at 910 n.4.
46. By "[t]he statute," the Court of Appeals for the Second Circuit was referring to 10 U.S.C § 269 (repealed 1994) and 10 U.S.C § 673a (current version at 10 U.S.C § 12303 (2006)), which allowed orders to active duty of reserve soldiers who failed to report for training. Even though the statute the court referred to was not a punitive statute but an administrative one, the same analysis could be made with regard to the criminal offenses mentioned above.
47. United States v. Grimley, 137 U.S. 147, 151 (1890).
48. See, e.g., Taylor v. Resor, 42 C.M.R. 7 (C.M.A. 1970).
49. For example, these concerns equally apply to the argument that enforcing a personal services contract contradicts the Thirteenth Amendment.
50. See infra Part IV.C.3.
51. A person is subject to court-martial jurisdiction only when he has one of the military statuses described in UCMJ art. 2(a). Therefore, an argument that an enlistment process was defective, to the point that it failed to change a person's status from a civilian to a servicemember, may be a good defense argument in court-martial proceedings.
52. See, e.g., Grimley, 137 U.S. 147
53. United States v. Quintal, 10 M.J. 532 (A.C.M.R. 1980)
54. United States v. Valadez, 5 M.J. 470 (C.M.A. 1978).
55. Note, however, that this kind of defense argument has to overcome the hurdle set in UCMJ art. 2(c): (c) Notwithstanding any other provision of law, a person serving with an armed force who- (1) submitted voluntarily to military authority; (2) met the mental competence and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submissions to military authority; (3) received military pay or allowances; and (4) performed military duties; is subject to this chapter until such person's active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.
56. See also United States v. Gennosa, 11 M.J. 764 (N.M.C.M.R. 1981).
57. A petition for habeas corpus is possibly the only cause of action available for a servicemember to challenge his service obligation according to his enlistment contract in a federal court.
58. Gengler v. United States, 453 F. Supp. 2d 1217, 1240-41 (E.D. Cal. 2006) (ruling that the Contracts Disputes Act, the equitable estoppel doctrine, the Administrative Action Act, and the Tucker Act cannot be used by a servicemember as causes of action against the military). Of the five causes of action that the complaint in Gengler contained, the court approved only the habeas corpus cause of action.
59. Id.
60. E.g., Santiago v. Rumsfeld, 407 F.3d 1018, 1020 (9th Cir. 2005) (examining a habeas corpus petition of a soldier whose enlistment term was extended by the stop loss policy)
61. Woodrick v. Hungerford, 800 F.2d 1413 (5th Cir. 1982) (denying airman's request for rescission of his enlistment contract on grounds of fraudulent inducement and mistake)
62. Gengler, 453 F. Supp. 2d 1217 (discussing the plaintiffs' request to set their term of duty for seven years, as prescribed in their service agreements with the Navy). This would also apply to other types of orders.
63. See, e.g., Antonuk v. United States, 445 F.2d 592 (6th Cir. 1971) (discussing a habeas corpus request against Army's intent to order plaintiff, a reserve soldier, to active duty, after the plaintiff "accumulated more than five unexcused absences from scheduled drills").
64. For example, the argument that enforcing an enlistment contract violates the servicemember's Thirteenth Amendment rights, as discussed in Part IV.C.3, may also prove useful when a court contemplates whether to issue a writ of habeas corpus.
65. Grimley, 137 U.S. 147 (based on research in the Lexis database, as of 10 January 2010, Grimley was cited in no fewer than 286 court decisions).
66. Id. at 150.
67. Id.
68. Id. at 151.
69. Id.
70. Id.
71. E.g., Collins v. Rumsfeld, 542 F.2d 1109 (9th Cir. 1976)
72. Grulke v. United States, 228 Ct. Cl. 720 (1981) ("The relationship between the soldier and state has changed over the past 90 years since In re Grimley ⋯ ruled that under conditions then existing, enlistment only effects a change of status, thereby making contract principles unnecessary.")
73. United States v. Russo, 1 M.J. 134, 136-37 (C.M.A. 1975) ("Although the Supreme Court in Grimley emphasized that a valid enlistment contract gives rise to a change in status which forecloses subsequent claims of breach of contract, that is not to say that the Government knowingly may violate its own regulations ⋯ .").
74. Grimley, 137 U.S. at 150.
75. Id. at 151.
76. Id.
77. But see William P. Casella, Armed Forces Enlistment: The Use and Abuse of Contract, 39 U. CHI. L. REV. 783 n.14 (1972) (suggesting that at the time of the Grimley decision, contract and status were two mutually exclusive concepts).
78. Pfile v. Corcoran, 287 F. Supp. 554 (D. Colo. 1968).
79. Id. at 556-57.
80. Dilloff, supra note 6, at 122.
81. For a detailed description and analysis of court decisions that refer to the legal nature of the enlistment contract,
82. see also Casella, supra note 46
83. Schlueter, supra note 16.
84. Dilloff, supra note 6, at 122.
85. Dubeau v. Commanding Officer, Naval Reserve Ctr., 440 F. Supp. 747, 748 (D.C. Mass. 1977)
86. see also United States v. Valadez, 5 M.J. 470, 473-74 (C.M.A. 1978) ("Despite scholarly suggestions for a more realistic view of the phenomenon known as enlistment, it has been generally held, as a matter of federal case law, that certain contract law principles are applicable to enlistment contracts.").
87. E.g., Cinciarelli v. Carter, 662 F.2d 73 (D.C. Cir. 1981) (discussing a breach of an active duty agreement between the Marine Corps and a senior reserve officer); Brown v. Dunleavy, 722 F. Supp. 1343, 1349 (E.D. Va. 1989) ("Claims by members of the military that enlistment contracts have been breached or are invalid are decided under traditional theories of contract of law.") (citing Woodrick v. Hungerford, 800 F.2d 1413 (5th Cir. 1986)
88. Cinciarelli, 662 F.2d 73; and Pence v. Brown, 627 F.2d 872 (8th Cir. 1980)).
89. Crane v. Coleman, 389 F. Supp. 22 (E.D. Pa. 1975) (ruling that not every breach of the enlistment contract entitles the servicemember to rescission of his contract).
90. E.g., Pence, 627 F.2d 872 (applying to enlistment contracts the common law rule that a fraud or misrepresentation during the formation of a contract, even if innocently and nonnegligently made, may bring to a rescission of it).
91. Withum v. O'Connor, 506 F. Supp. 1374, 1378 (D.P.R. 1981) (granting petitioner's request for habeas corpus, on grounds of false representation by the recruiter); Grulke v. United States, 228 Ct. Cl. 720 (1981).
92. Whitaker v. Callaway, 371 F. Supp. 585 (E.D. Pa. 1974) (addressing mutual mistake in an enlistment contract).
93. United States v. Wagner, 5 M.J. 461 (C.M.A. 1978). The court in Withum v. O'Connor summarized the law on false representations in enlistments as follows: Military enlistment contracts are subject to traditional principles of contract law⋯ . A recruit is entitled to rescind an enlistment contract if the military is unable to perform its obligation; if the terms of the contract are so ambiguous as to be misleading; or if the recruit was induced to enter into the contract by fraud or false representations. Even if the misrepresentations were innocently or nonnegligently made, if they were material and induced the prospective recruit to enlist, the contract may be rescinded. It is not necessary, however, that the false representations deprive the recruit of every benefit of the contract.
94. 506 F. Supp. at 1378 (internal citations omitted).
95. E.g., Tremblay v. Marsh, 750 F.2d 3 (1st Cir. 1984) (interpreting the petitioner's enlistment contract).
96. Lundgrin v. Claytor, 619 F.2d 61 (10th Cir. 1980) (basing the decision to deny medical student's request for injunction against his orders to active duty on interpretation of his enlistment contract).
97. Rodriguez v. Vuono, 757 F. Supp. 141 (D.P.R. 1991) (examining the plaintiff's argument regarding his military service obligations using common law contractual principles).
98. E.g., Antonuk v. United States, 445 F.2d 592 (6th Cir. 1971)
99. Winters v. United States, 412 F.2d 140 (9th Cir. 1969).
100. Pfile v. Corcoran, 287 F. Supp. 554 (D. Colo. 1968).
101. See United States v. Standard Oil Co. of Cal., 332 U.S. 301 (1947).
102. Rodriguez, 757 F. Supp. at 147 ("Claims that military induction contracts are invalid or have been breached are decided under traditional theories of contract law, rather than the law of any state.").
103. Brown v. Dunleavy, 722 F. Supp. 1343, 1349 (E.D.Va. 1989).
104. See, e.g., Taylor v. Resor, 42 C.M.R. 7, 8 (C.M.A. 1970) ("Enlistment in an armed force does not establish a contract relationship between the individual and the Government, but a status.").
105. United States v. Russo, 1 M.J. 134 (C.M.A. 1975).
106. United States v. Noyd, 40 C.M.R. 195, 202 (C.M.A. 1969).
107. Id.
108. United States v. Blanton, 23 C.M.R. 128, 129 (C.M.A. 1957).
109. 366 U.S. 393 (1961). See also infra Part III.D (discussing the Bell case).
110. 800 F.2d 1413 (5th Cir. 1986).
111. Id. at 1413-14.
112. Id. at 1414.
113. Id.
114. Id.
115. Id.
116. Id.
117. Id. at 1414-15.
118. Id. at 1416.
119. Id. at 1417. The Eleventh Circuit followed this decision in Winck v. England, 327 F.3d 1296 (11th Cir. 2003).
120. See supra note 53.
121. Woodrick, 800 F.2d at 1417-18.
122. See infra Part III.D.
123. 357 F. Supp. 2d 274 (D.D.C. 2005).
124. 407 F.3d 1018 (9th Cir. 2005).
125. According to the Stop-Loss policy, the term of service of many Reserve component soldiers (as well as active duty Soldiers) whose enlistments were about to expire was unilaterally extended when their units were called to active duty to deploy. The extensions were for the period of the units' deployment. The Stop-Loss policy was based upon 10 U.S.C. § 12305(a), which provides, Notwithstanding any other provision of law, during any period members of a reserve component are serving on active duty pursuant to an order to active duty under authority of section 12301, 12302, or 12304 of this title, the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States.
126. The President delegated his authority under this statute to the Secretary of Defense, who further delegated it to the Secretaries of the military departments. Exec. Order No. 12,728, 55 C.F.R 35029 (1990).
127. Generally, after the 11 September 2001 terror attacks, the Army decided, pursuant to this authority, to extend the period of service of Reserve component soldiers whose units were called to active duty under 10 U.S.C. § 12302 or 10 U.S.C. § 12304.
128. Besides the Qualls and Santiago cases, the policy was also challenged in Doe v. Rumsfeld, 435 F.3d 980 (9th Cir. 2006).
129. See also Daniel C. Brown, Stop Loss: Illegal Conscription in America?, 54 AM. U. L. REV. 1595 (2005).
130. Evan M. Wooten, Banging on the Backdoor Draft: The Constitutional Validity of Stop Loss in the Military, 47 WM. & MARY L. REV. 1061 (2006).
131. Cheryce M. Cryer, Stop Loss and the Back-Door Draft: An Illumination of Government Contract Violations and Potential Allegations of Modern- Day Slavery, 49 HOW. L.J. 843 (2006).
132. Hannah Dyer, Keeping Faith: The United States Military Enlistment Contract and the Implementation of Stop-Loss Measures, 34 PEPP. L. REV. 791 (2007).
133. The Stop-Loss policy was considerably narrowed two years ago. Message, 210042Z Mar 09, Dep't of Army, subject: Active Army (AA) Unit Stop Loss/Stop Movement (SL/SM) Policy for Units Scheduled to Deploy OCONUS for OIF and OEF Operations- Update/Revision.
134. Qualls, 357 F. Supp. 2d at 278.
135. Id.
136. At the time, Qualls's term of service was extended from 6 July 2004 to 24 December 2031.
137. Id.
138. As explained in Santiago, the Army truly did not intend to utilize the Stop-Loss policy to retain Reserve component soldiers unilaterally in service for twenty-five years. The date was set for the Army's administrative convenience. Santiago, 407 F.3d at 1021 n.2.
139. Qualls, 357 F. Supp. 2d at 279-80.
140. Id. at 284.
141. Id. at 285.
142. Id. at 279-80.
143. Id. at n.1.
144. Id. at 284.
145. The court refused to grant Qualls the preliminary injunction he sought. Later, in another decision, the court accepted the defendant's motion to dismiss the suit, on grounds that it was rendered moot when Qualls agreed to extend his National Guard enlistment by six additional years.
146. Qualls v. Rumsfeld, 412 F. Supp. 2d 40 (D.D.C. 2006).
147. Santiago v. Rumsfeld, 407 F.3d 1018, 1020 (9th Cir. 2005).
148. Santiago learned about the extension of his enlistment while he attended what was supposed to be his last weekend training.
149. Id.
150. Id. at 1022.
151. Id. at 1022-23.
152. Parrish v. Brownlee, 335 F. Supp. 2d 661, 673-74 (E.D.N.C. 2004).
153. Irby v. U.S. Dep't of Army, 245 F. Supp. 2d 792, 800 (E.D.Va. 2003) (suggesting that regulations in effect are read into the enlistment contract, and apply even if they are later changed).
154. Gengler v. United States, 453 F. Supp. 2d 1217 (E.D. Cal. 2006) (involving case of Navy fixed-wing pilots who signed seven-year enlistment contracts when, according to 10 U.S.C. § 653(a), they should serve at least eight years of active duty).
155. 366 U.S. 393 (1961).
156. Id. at 394.
157. Id.
158. Id.
159. Id.
160. Id. at 401.
161. Id.
162. Id.
163. 431 U.S. 864 (1977).
164. Id.
165. See, e.g., Jablon v. United States, 657 F.2d 1064 (9th Cir. 1981).
166. Bryant v. Dep't of the Army, 553 F. Supp. 2d 1098 (D. Minn. 2008). 104 In Jablon, 657 F.2d. at 1066-67, the Ninth Circuit suggested a new explanation for the Bell exception. According to Jablon, the enlistment contract's substance is contractual, even with regards to pay and allowance; however, in suits for pay and allowance, a remedy can only be granted to the extent Congress has statutorily waived sovereign immunity. Thus, even though the basis for a suit for pay and allowance is contractual, a remedy can only be granted as prescribed by statute: "There is a significant difference between the court's power to order the armed services to discharge a soldier because the military has breached the conditions under which he or she enlisted and the power to order the government to pay damages for breach of a contract which the court would have no authority to enforce."
167. Id. at 1067.
168. Under this analysis, the Bell exception is a practical exception rather than a doctrinal one.
169. Rutland Marble Co. v. Ripley, 77 U.S. 339, 358 (1870).
170. Shubert v. Woodward, 167 F. 47, 55-56 (8th Cir. 1909).
171. RESTATEMENT (SECOND) OF CONTRACTS § 367 (1981) (current through August 2009).
172. Id.
173. Lumley v. Wagner, (1852) 42 Eng. Rep. 687 (Ch.).
174. Cent. New York Basketball, Inc. v. Barnett, 181 N.E.2d 506 (Ohio Com. Pl. 1961).
175. Ex parte Jim Dandy Co., 239 So. 2d 545 (Ala. 1970).
176. U.S. Dep't of Def., DD Form 4/1, Enlistment/Reenlistment Document Armed Forces of the United States (Oct. 2007) [hereinafter DD Form 4/1].
177. Id. sec. 10(a).
178. 10 U.S.C § 50 (2006)..
179. Id.
180. See, e.g., AR 635-200, supra note 12.
181. See UCMJ art. 90 (2008).
182. U.S. DEP'T OF ARMY, REG. 350-1, ARMY TRAINING AND LEADER DEVELOPMENT para. 1-8 (3 Aug. 2007).
183. Baldwin v. Cram, 522 F.2d 910 n.4 (2d. Cir. 1975).
184. In re Estate of B.E. Griffin v. Summer, 604 S.W.2d 221, 225 (Tex. Civ. App. 1980) ("The purpose of specific performance is to compel a party who is violating a duty to perform under a valid contract to comply with his obligations.").
185. Mcklean v. Keith, 72 S.E.2d 44, 53 (N.C. 1952) ("The remedy of specific performance is an equitable remedy of ancient origin. Its sole function is to compel a party to do precisely what he ought to have done without being coerced by the court.").
186. McCoy Farms, Inc. v. J & M McKee, 563 S.W.2d 409, 415 (Ark. 1978).
187. Specific performance is an equitable remedy which compels the performance of a contract on the precise terms agreed upon or such a substantial performance as will do justice between the parties under the circumstances. It is a means of compelling a contracting party to do precisely what he should have done without being coerced by a court.
188. Id.
189. see Mcklean, 72 S.E.2d at 53.
190. See Rapp, supra note 22, at 262.
191. Compare Schwartz, supra note 19, at 274.
192. ("Specific performance is the most accurate method of achieving the compensation goal of contract remedies because it gives the promise the precise performance that he purchased."), with Anthony T. Kronman, Specific Performance, 45 U. CHI. L. REV. 351 (1977-1978) (applying economic analysis principle to ascertain that specific performance is not always in the exante intent of both parties to the contract). Kronman suggests that parties to a contract will ex ante prefer a remedy of specific performance, in case of a breach, only "[w]hen the contract is for unique goods or services.
193. Kronman, supra, at 369.
194. See Kimball v. Swanson, 177 N.W.2d 375, 380 (Wis. 1970) ("Specific performance is an equitable remedy, addressed to the sound discretion of the court.").
195. Seascape, Ltd. v. Maximum Mktg. Exposure, Inc., 568 So.2d 952, 954 (Fla. Dist. Ct. App. 1990) ("[E]mployment or personal services ⋯ contracts are not enforceable by injunction or specific performance⋯ . The appropriate remedy in such cases is an action for damages for breach of contract.").
196. United States v. Georgia-Pac. Co., 421 F.2d 92, 103 (9th Cir. 1970) (cited by Gengler v. United States, 453 F. Supp. 2d 1217, 1231 (E.D. Cal. 2006)).
197. Raybovich Boat Works, Inc. v. Atkins, 585 So.2d 270, 272 (Fla. 1991) ("[T]he remedy of specific performance is not a matter of right. To the contrary, the court contemplating an order of specific performance is obligated to consider whether this remedy, based on the facts of the case, would achieve an unfair or unjust result.").
198. McCoy Farms, Inc., 563 S.W.2d at 415.
199. Mcklean, 72 S.E.2d at 53.
200. Green, Inc. v. Smith, 317 N.E.2d 227, 233 (Ohio Ct. App. 1974).
201. RESTATEMENT (FIRST) OF CONTRACTS § 359 (1932) (current through August 2009).
202. See In re Estate of Griffin v. Summer, 604 S.W.2d 221, 225 (Tex. App. 1980).
203. Woolley v. Embassy Suites, Inc., 278 Cal. Rprt. 719 (Cal. Ct. App. 1991).
204. RESTATEMENT (FIRST) OF CONTRACTS § 361 (1932) (current through August 2009) (discussing factors affecting the determination to grant specific performance when damages are inadequate, including that estimating the damages may be difficult; the transaction's worth cannot be measured in monetary terms; and damage collection may be difficult).
205. See generally RESTATEMENT (SECOND) OF CONTRACTS § 367 (1981) (current through August 2009).
206. MODERN LAW OF CONTRACTS § 13:17 (2009).
207. Arthur v. Oaks, 63 F. 310, 317 (7th Cir. 1894). The case explains.
208. Id.
209. Lumley, (1852) 42 Eng. Rep. 687 (Ch.). Many consider the Lumley case to be the seminal case in the context of specific performance of personal services contracts.
210. See, e.g., Kaser v. Fin. Prot. Mktg., Inc., 831 A.2d 49 (Md. 2003).
211. Swager v. Couri, 395 N.E.2d 921 (Ill. 1979).
212. But see Rapp, supra note 22, at 263 n.8.
213. (demonstrating that the Lumley case was actually not the first time a court ruled that personal services contracts are not specifically enforceable).
214. Lumley, (1852) 42 Eng. Rep. 687.
215. Id. at 688.
216. Id.
217. Id. at 691.
218. Id. at 698.
219. Id.
220. Id. at 693.
221. Id. at 691.
222. Id. at 693.
223. Id.
224. Id.
225. RESTATEMENT (FIRST) OF CONTRACTS § 380 (1932) (current through August 2009).
226. See Allen R. Grogan, Statutory Minimum Compensation and the Granting of Injunctive Relief to Enforce Personal Service Contracts in the Entertainment Industries: The Need for Legislative Reform, 52 S. CAL. L. REV. 489, 490 (1979) ("Although personal service contracts are not specifically enforceable, in certain circumstances they may be enforced by prohibitory injunction, a decree that prohibits an employee from performing services for any competitor of the original employer under the contract.") (footnotes omitted).
227. Rapp, supra note 22, at 262.
228. See supra note 130.
229. See supra note 130; David F. Partlett, From Victorian Opera to Rock and Rap: Inducement to Breach of Contract in the Music Industry, 66 TUL. L. REV. 771, 778 (1992).
230. See RESTATEMENT (SECOND) OF CONTRACTS § 367 (1981) (current through August 2009).
231. WILLISTON ON CONTRACTS § 67:102 (4th ed. 2009); Rapp, supra note 22, at 271- 81.
232. See, e.g., Seaescape, Ltd. v. Maximum Mktg. Exposure, Inc., 568 So.2d 952, 954 (Fla. Dist. Ct. App. 1990) (stating that a court of equity will not enforce a contract for personal services because "[t]he appropriate remedy in such cases is an action for damages for breach of contract.").
233. See, e.g., Arthur v. Oaks, 63 F. 310 (7th Cir. 1894).
234. However, some scholars, especially those who belong to the Economic Analysis of the Law school of thought, offer a fifth rationale to justify why contracts for personal services should not be enforced. According to this rationale, specifically enforcing contracts for personal services is economically inefficient, compared to the damages remedy. When a court decrees an order for specific performance, the parties to the contract will engage in negotiation. This negotiation should lead to the most efficient outcome for the parties- the breaching party that does not want to perform his contractual obligations, but is enforced to by the court order, will pay the other party the sum of money (or equal to money) that will convince him not to demand the execution of the breaching party's obligation. In a perfect market, the negotiation costs in this case and in a case in which the breaching party was ordered to pay damages to the other party will be the same.
235. However, when the breached contract is a contract for personal services, the breaching party will probably not be in a position to allow him to negotiate freely for his "release" from the contract; therefore, the negotiation's outcome will not be economically efficient.
236. For example, an employee that wants to breach his employment contract cannot hold negotiations for long, since he has to earn his living by working. This will impair his negotiating power and may result in an economically inefficient outcome.
237. See Rapp, supra note 22, at 262.
238. (citing RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW 130- 32 (4th ed. 1992)). For a further economic analysis of the specific performance remedy
239. see also Kronman, supra note 124 (claiming that specific performance is the economically efficient remedy only when the subject of the contract is unique, and cannot be readily substituted with money).
240. Schwartz, supra note 19, at 274 (rejecting Kronman's reasoning, and stating that the specific performance remedy does not necessarily invite a less efficient result).
241. For the purpose of analyzing whether courts can specifically enforce enlistment contracts there is no need to discuss this rationale. First, this rationale is only offered by scholars, but not by the courts. Even Judge Posner of the Court of Appeals for the Seventh Circuit, who proposed this rationale in Economic Analysis of the Law, did not discuss this rationale the only time he wrote, as a judge, on the issue of specific performance of personal services contracts.
242. See McKnight v. Gen. Motors Corp., 908 F.2d 104, 115 (7th Cir. 1990) (stating solely that courts will "refuse[] to order specific performance of employment contracts, because it is difficult and time-consuming for a court to supervise the parties' conduct in an ongoing and possibly long-term relationship of employment," and citing Lumley v. Wagner, (1852) 42 Eng. Rep. 687 (Ch.)).
243. It is highly likely that when the subject of specific enforcement of enlistment contracts is discussed in a court, this rationale will not play a role in the discussion. Second, when enlistment contracts are at issue, the theoretical option of bargaining out does not exist. A soldier will not bargain his way out of military service simply because the habitat of the enlistment contract is not a commercial habitat, and the terminology that fits economic analysis of the law does not necessarily fit the context of enlistment contracts.
244. The Supreme Court of Michigan used this rationale in Heth v. Smith to explain why contracts for personal services are not specifically enforceable: Contracts for affirmative personal service consisting of a succession of acts, the performance of which cannot be consummated in one transaction, but must continue for a time, definite or to become definite, and which involve special knowledge, skill, judgment, integrity, or other like personal qualities, the performance of which rests in the individual will and ability, and involving continuous duties which a court of equity could not well regulate, are not, as a rule, enforceable by decree for specific performance.
245. N.W. 583, 586 (Mich. 1913).
246. Poultry Producers of S. California v. Barlow, 189 Cal. 278, 289 (1922). In California, the personal services rule was enacted into statute. CAL. CIV. CODE § 3423(e). The Supreme Court of California is referring to the rationales of the California Statute.
247. However, since the California statute is based on the common law rule, the rationales for the statute and the common law rule are the same, and the Supreme Court of California's analysis can also be applied to the common law rule.
248. McKnight v. Gen. Motors Corp. 908 F.2d 104, 115 (7th Cir. 1990) ("Courts of equity traditionally have refused to order specific performance of employment contracts, because it is difficult and time-consuming for a court to supervise the parties' conduct in an ongoing and possibly long-term relationship of employment.") (emphasis added).
249. Rutland Marble Co. v. Ripley, 77 U.S. 339, 358 (1870).
250. Id.
251. Motown Record Corp. v. Brockert, 160 Cal. App. 3d 123, 137 (Cal. Ct. App. 1984).
252. U.S. DEP'T OF ARMY, REG. 623-3, EVALUATION REPORTING SYSTEM (10 Aug. 2007) [hereinafter AR 623-3]; U.S. DEP'T OF ARMY, REG. 600-20, ARMY COMMAND POLICY (18 Mar. 2008) [hereinafter AR 600-20].
253. AR 623-3, supra note 154, para. 1-9.
254. See generally Parker v. Levy, 417 U.S. 733, 758 (1974).
255. See AR 600-20, supra note 154.
256. See supra text accompanying notes 105-108.
257. Zannis v. Lake Shore Radiologists, Ltd., 392 N.E.2d 126, 129 (Ill. App. 1979).
258. Poultry Producers of S. California v. Barlow, 189 Cal. 278, 288 (1922).
259. ("Another reason assigned for the rule, according to some of the authorities, is that, in view of the peculiar personal relation that results from a contract of service, it would be inexpedient, from the standpoint of public policy, to attempt to enforce such a contract specifically.").
260. Felch v. Findlay Coll., 200 N.E.2d 353, 355 (Ohio App. 1963).
261. RESTATEMENT (SECOND) OF CONTRACTS § 367 (1981) (current through Aug. 2009); MODERN LAW OF CONTRACTS § 13:17.
262. Lark v. Post-Newsweek Stations, Connecticut, Inc., No. CV-94-070-53-26, 1994 WL 684718, at *7 (Conn. 1994).
263. Barlow, 189 Cal. At 288-89.
264. see also Zannis, 392 N.E.2d at 129 ("[A]s a matter of public policy courts will avoid the friction that would be caused by compelling an employee to work, or an employer to hire or retain someone against their wishes.").
265. See Parker v. Levy, 417 U.S. 733, 744 (1974).
266. See id.
267. ("To maintain the discipline essential to perform its mission effectively, the military has developed what 'may not unfitly be called the customary military law' or 'general usage of the military service.'") (citing Martin v. Mott, 12 Wheat. 19, 35 (1827))
268. see also supra text accompanying notes 156-61.
269. See CHRISTOPHER C. STRAUB, THE UNIT FIRST 3 (1988) ("To fight well presupposes that at least most of the soldiers in a unit have chosen to fight at all, that they individually have the will to fight. Then the individual wills must combine into a fighting team, a team that has practiced and whose members have confidence in each other and in team performance.").
270. But see Rapp, supra note 22, at 273.
271. See generally U.S. DEP'T OF ARMY, FIELD MANUAL 1, THE ARMY paras. 1-40, 1-41 (14 June 2005).
272. See generally Gengler v. United States, 453 F. Supp. 2d 1217, 1238 (E.D. Cal. 2006) (effect of public policy considerations on enlistment contract's interpretation).
273. Arthur v. Oaks, 63 F. 310, 317 (7th Cir. 1894).
274. U.S. CONST. amend. XIII.
275. See infra Part IV.C.3.b.
276. Arthur, 63 F. at 317.
277. Nathan B. Oman, Specific Performance and the Thirteenth Amendment, 93 MINN. L. REV. 2020 (2009). In fact, the consideration of personal liberty is also based on general principles of human rights and equity, and not only on the Thirteenth Amendment and international law. The rule barring specific performance of personal services contracts evolved in England, where, naturally, the Thirteenth Amendment does not apply, and before international law even forbade slavery.
278. See, e.g., De Francesco v Barnum, (1890) L.R 45 Ch.D. 430 (U.K.) ("I think the Courts are bound to be jealous, lest they should turn contracts of service into contracts of slavery").
279. In the United States, however, as long as the Thirteenth Amendment is in place and the courts do not rule explicitly otherwise, the Thirteenth Amendment will continue to serve as the main authority for discussions of this rationale.
280. U.S. CONST. amend. XIII. Involuntary servitude is also forbidden by 10 U.S.C. § 1854(a) (2006): Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.
281. Id.
282. Butler v. Perry, 240 U.S. 328, 332-33 (1916).
283. United States v. Kozminski, 487 U.S. 931, 942 (1988) ("While the general spirit of the phrase 'involuntary servitude' is easily comprehended, the exact range of conditions it prohibits is harder to define.").
284. Id. at 943-44.
285. Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 459 (2d Cir. 1996) ("The Thirteenth Amendment does not bar labor that an individual may, at least in some sense, choose not to perform, even where the consequences of that choice are 'exceedingly bad.'").
286. See Joey Asher, How the Unites States is Violating Its International Agreements to Combat Slavery, 8 EMORY INT'L L. REV. 215 (1994).
287. Kozminski, 487 U.S. at 943-44.
288. U.S. CONST. amend. XIII.
289. see Watson v. Graves, 909 F.2d 1549 (5th Cir. 1990).
290. Kozminski, 487 U.S. at 943-44.
291. Butler v. Perry, 240 U.S. 328, 333 (1916).
292. Id.
293. Beverly Glen Music, Inc. v. Warner Commc'ns, Inc., 224 Cal. Rptr. 260, 261 (Cal. Ct. App. 1986).
294. see also Poultry Producers of S. Cal. v. Barlow, 189 Cal. 278, 288 (1922).
295. ("[I]t would be an invasion of one's statutory liberty to compel him to work for, or to remain in the personal service of, another. It would place him in a condition of involuntary servitude-a condition which the supreme law of the land declares shall not exist within the United States ⋯ .").
296. Birmingham Trust & Savings Co. v. Atlanta, B. & A. Ry. Co., 271 F. 743, 744 (Ga. D. Ct 1921).
297. ("The right ⋯ of one to refuse to serve, even though under a binding contract to do so, is a part of the constitutional personal liberty of the land. The failure or refusal to perform a contract of service may create a liability in damages, but no court will enforce the service").
298. Arthur v. Oaks, 63 F. 310, 317 (7th Cir. 1894).
299. Rapp, supra note 22, at 277.
300. Oman, supra note 173, at 2025.
301. Kronman described this approach best, saying "[t]he nature, completeness, and duration of self-imposed limitations on personal freedom determine their legal and moral acceptability.
302. Kronman, supra note 124, at 372.
303. E.g., Hesse v. Resor, 266 F.Supp. 31, 35 (E.D. Mo. 1966).
304. ("The 13th amendment right to freedom from involuntary servitude does not apply to military service.").
305. See supra notes 180-184.
306. United States v. Crocker, 274 F. Supp 776 (D.C. Minn. 1969) (holding that the draft law does not violate the Thirteenth Amendment, even during times of peace).
307. Howze v. United States, 272 F.2d 146, 148 (9th Cir. 1959).
308. ("The power of Congress to raise armies, and to take effective measures to preserve their efficiency, is not limited by either the Thirteenth Amendment, or the absence of a military emergency.").
309. Bertelsen v. Cooney, 213 F.2d 275 (5th Cir. 1954).
310. (declaring that the "Doctors Draft Law," Public Law 779, § 4(i)(2), 81st Congress, Second Session, 64 Stat. 826, was within the power of the Congress and does not constitute a Thirteenth Amendment violation).
311. See Clark v. United States, 461 F.2d 781, 784 (Ct. Cl. 1972).
312. (holding that activation of commissioned officers whose ready reserve agreements have expired does not violate the Thirteenth Amendment).
313. United States v. Shy, 10 M.J. 582, 583 (A.C.M.R. 1980).
314. (holding that retention of the accused in service after expiration of his enlistment term in order to conduct court-martial proceedings against him was not prohibited by the Thirteenth Amendment, which "is inapplicable to service in the military.").
315. Lonchyna v. Brown, 491 F. Supp. 1352, 1352 (D.C. Ill. 1980).
316. Id.
317. Id. at 1354.
318. Asher, supra note 179.
319. Id. at 234-48.
320. Id. at 242.
321. This section addresses only the most relevant international agreements, and they are not necessarily cited in chronological order.
322. See id. (analyzing all of the international agreements that discuss slavery and personal servitude).
323. Universal Declaration of Human Rights art. 4, G.A. Res. 217A, at 71, U.N. GAOR, 3rd Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter Universal Declaration].
324. Asher, supra note 179, at 244.
325. Universal Declaration, supra note 200, art 4.
326. Hurst Hannum, The Status of The Universal Declaration of Human Rights in National and International Law, 25 GA. J. INT'L & COMP. L. 287, 317-18 (Fall 1995-Winter 1996).
327. U.S. CONST. art. VI.
328. It has been suggested that the prohibition against slavery embedded in the Universal Declaration represents customary international law and, therefore, is binding on all states.
329. See Hannum, supra note 203, at 334.
330. However, even if slavery is forbidden in general, the broad definitions of slavery and involuntary servitude are probably not accepted as customary international law.
331. Convention to Suppress the Slave Trade and Slavery, Sep. 25, 1926, 46 Stat. 2183, 60 L.N.T.S. 253 [hereinafter Slavery Convention].
332. Id. art. 2.
333. Id. art. 1.
334. Asher, supra note 179, at 238-39.
335. Slavery Convention, supra note 206, art 5(1).
336. Another possible argument is that the Slavery Convention, supra note 206, is not selfexecuting.
337. See Asher, supra note 179, at 245.
338. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
339. Id. art. 8.
340. Id.
341. Id.
342. Asher, supra note 179, at 246.
343. Id. at 248.
344. The International Labour Organization's Convention (No. 29) Concerning Forced Labour, June 28, 1930, 39 U.N.T.S. 55 [hereinafter Forced Labor Convention] also prohibits "all work of service which is exacted from any person under the menace of any penalty.
345. Id. art. 2.
346. However, contrary to the ICCPR, the Forced Labor Convention does not prohibit forced labor that was entered into voluntarily.
347. See id.
348. S. EXEC. REP. NO. 102-23 (1992), reprinted in 31 I.L.M. 645.
349. ICCPR, supra note 212, ¶ 8(3).
350. See, e.g., Rutland Marble Co. v. Ripley, 77 U.S. 339, 359 (1870).
351. ("But what is a still more satisfactory reason for withholding a decree for specific performance is, that the party who asks for it has an entirely adequate remedy provided by the reservation in his deed, and by the contract itself.")
352. Seascape, Ltd. v. Maximum Mktg. Exposure, Inc., 568 So.2d 952, 954 (Fla. Dist. Ct. App. 1990).
353. See supra note 127 and accompanying text.
354. McMenamin v. Philadelphia Transp. Co., 51 A.2d 702, 704 (Pa. 1947).
355. ("Those rights which have been protected by a court of equity no longer exist, and will not be recreated by a decree of a court of equity requiring specific performance of a contract for personal services. The remedy, if any, is an action at law for damages.").
356. Ryan v. Reddington, 87 A. 285, 286 (Pa. 1913) ("The remedy of the plaintiffs at law was entirely adequate as both the term and compensation for the employment were fixed by the contract. It is, therefore, apparent that a court of equity had no jurisdiction ⋯ .").
357. see also Loeb v. Textron, Inc., 600 F.2d 1003, 1023 (1st Cir. 1979) (granting damages for breach of employment contract in lieu of specific performance of the contract).
358. This rationale is not unique to personal services contracts. Derived from the equitable nature of the specific performance remedy, this rationale applies to all contracts.
359. Arthur v. Oaks, 63 F. 310, 318 (7th Cir. 1894).
360. SHEILA NATARAJ KIRBY & HARRY J. THIE, ENLISTED PERSONNEL MANAGEMENT: A HISTORICAL PERSPECTIVE 105 (1996) ("When [servicemembers] leave early not only has the military lost a valuable asset, but it also has to acquire and train a replacement.").
361. see also U.S. DEP'T OF DEF., DIR. 1100.4, GUIDANCE FOR MANPOWER MANAGEMENT (12 Feb. 2005).
362. U.S. DEP'T OF DEF., INSTR. 1304.30, ENLISTED PERSONNEL MANAGEMENT PLAN (EPMP) PROCEDURES (14 Mar. 2006).
363. Baldwin v. Cram, 522 F.2d 910 n.4 (2d Cir. 1975).
364. Compare Shubert v. Woodward, 167 F. 47, 56 (8th Cir. 1909), with Arthur, 63 F. at 317.
365. (refusing to order striking railroad employees back to work and relying on the rule barring specific performance of personal services contracts, even though the strike might have caused severe damage to the public).
366. In Arthur, the Seventh Circuit further reasoned, "[b]ut these evils, great as they are, ⋯ are to be met and remedied by legislation restraining alike employes [sic] and employers so far as necessary adequately to guard the rights of the public.
367. Id.
368. MODERN LAW OF CONTRACTS § 13:17.
369. Reuber v. Unites States, 750 F.2d 1039, 1066-67 (D.C. Cir. 1984).
370. Thurston v. Box Elder Cnty., 892 P.2d 1034, 1040 (Utah 1995).
371. (explaining that the rationales for the rule barring specific performance of personal services contracts "are susceptible to closer scrutiny in light of contemporary employment relationships and the need to protect at-will employees from wrongful termination of their employment").
372. Id.
373. Shubert, 167 F. at 56.
374. In this context, it is useful to remember that courts are already known to be deferential when they deal with the military.
375. See Orloff v. Willoughby, 345 U.S. 83 (1953).
376. Sebra v. Neville, 801 F. 2d 1135 (9th Cir. 1986).
377. Baldwin v. Cram, 522 F.2d 910 n.4 (2d Cir. 1975).
378. THE MEANING OF LIFE (Celandine Films 1983).
379. Id.
380. Id.
381. Id.
382. KIRBY & THIE, supra note 225, at 105.