Texas Wesleyan Law Review

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The intention of this Article, and the brief presentation that accompanied it at the Texas Wesleyan University School of Law Symposium on The Role of Contract in the Modern Employment Relationship, is to highlight the need for a more uniform and consistent application of contract principles to noncompete contracts in order to increase predictability in this field of law. Presently both employees and employers pay a heavy price due to increased uncertainty in this area. This is because courts use equitable concepts to circumvent basic contract law principles without recognizing the unseen price that is paid by others when contract-based predictability is eroded. To illustrate this point, this Article will begin with six different scenarios that are very real possibilities under the current state of the law and highlight the practical cost to litigants in the current unpredictable environment. In addition to highlighting a significant problem created by the unpredictability in this area of employment contract law, this Article will also provide the practicing employment law attorney with a review of different contract options to consider when drafting noncompete contracts and similar protective agreements. In Part II, the nature of unpredictability in a number of key foundational concepts like protectable interests, consideration, and choice of law is examined. In Part III, an overview of advantages and disadvantages to the eight most common forms of restrictive contracts are covered to illustrate that no one contract option solves the present unpredictability problem and to provide the practicing attorney with a helpful checklist of contract options to consider. To conclude, a suggestion for a more balanced approach to improve predictability is provided.



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