Hastings Business Law Journal


Kate O'Neill


This article is an effort to think about covenants not to compete from a theoretical and practical standpoint. Employee covenants not to compete generate a lot of legal disputes perhaps, in part, because they often bite when an employment relationship is already on the rocks and then they extend their restraints out past the time of any productive exchange between the parties. Employee covenants not to compete also generate scores of academic articles because there are always new cases to write about and because covenants dwell on a fault line that runs between freedom of contract and substantive control over contract. Yet, despite all the judicial and academic scrutiny over many decades there's not much consensus among states or scholars about how, or if, these covenants should be regulated. This article is an effort to bridge some of the gap between theory and practice with a tilt toward being useful to practitioners and judges by examining specifically how arguments are actually constructed in terms of state statutes and precedents.