« How Should Article VII’s Ultimatum Game Affect Constitutional Interpretation? | Main | A Note on Not Covering (here) the Dan Markel trial »

Wednesday, October 02, 2019

JOTWELL: Sullivan on Lobel on Gentlemen Prefer Bonds: How Employers Fix the Market for Talent

The new Jotwell work law essay comes from Charles A. Sullivan, Dissolving Bonds, JOTWELL (October 2, 2019), reviewing Orly Lobel, Gentlemen Prefer Bonds: How Employers Fix the Talent MarketSanta Clara L. Rev. __ (forthcoming, 2019), available at SSRN  (the article is part of symposium on frontiers of antitrust law). 

Sullivan does a wonderful job reviewing my piece and adding context and commentary on the political will and viability behind some of my policy suggestions. My article argues that beyond the formal noncompete, employers use a range of restrictive covenants that impede mobility, depress wages, and harm all employees, but some (women and minorities) even more than others. I propose in the third part of the article some courses of action beyond the ex ante non-enforcement. I agree with Sullivan's skepticism about how effective advance notice and disclosure requirements would actually be. Sullivan rightly identifies the more radical types of reforms: regulatory proactive activity by the FTC or attorney generals, or class actions (which are largely an impossibility with today's mandatory arbitration and class waivers). I should mention that Sullivan has written a few years ago an important article about the persistence unenforceable contracts.

Sullivan concludes with this, which I greatly appreciate:

"Even more so than usual, a “jot” such as this can only scratch the surface of the piece it is reviewing and Lobel’s article is required reading for those concerned about competition in the labor markets and the concomitant effects on economic welfare of workers."

I love JOTWELL! This is the fourth or fifth time an article of mine is selected for JOTWELL and it is always such an honor and such a wonderful way to engage on scholarship!


Posted by Orly Lobel on October 2, 2019 at 09:33 PM | Permalink


Orly, you may find by the way, great interest in that post ( Law & Liberty ) titled:

" Why Inequality Should Not Be an Object of Social Policy "


Posted by: El roam | Oct 3, 2019 8:40:09 AM

Important related article ( of Sullivan, concerning unenforceable contracts). But, I am not so sure, about his rigorous approach. It seems that he rather ignores, the importance or the purpose of contracts ( generally speaking). Permitting the flow of trade, exchange of ideas and services, developing business and creativity etc.... Much depends of course, on the gravity of the illegal or illegitimate clause ( and also good faith and intents). Deterrence should be given less weight over flow of trade. Courts should strive rather to fix it, remedy it, compensate when needed, instead of ruining business ties or projects ( especially when in advanced phase).


Posted by: El roam | Oct 3, 2019 5:38:35 AM

The comments to this entry are closed.