ROMPT: In the 1915 case Coppage v Kansas, the Supreme Court of the United States considered a statute passed by the Kansas state legislature that outlawed so-called “yellow-dog” contracts by which employees agreed, as a condition of their employment, not to engage in union activities. The Supreme Court addressed the constitutional question of whether this statute invaded the private right of the parties to contract. The state argued that the outlawed contracts were the production of coercion, the statute did not encroach on freedom. The Supreme Court disagreed and argued that even though the employer had a bargaining advantage, economic coercion did not violate objective notions of freedom of contract. The contracts at issue were free contracts under the law, and the state legislature’s intrusion into this private sphere was unconstitutional.
The Court here adheres to what Robert Gordon calls the normal framing based on classical liberalism, according to which contracts belong in the private sphere between free and equal individuals who enter into consensual agreements.
YOUR TASK: In about 750 words, present a possible alternative framing of this case, drawing on Gordon’s “Unfreezing Legal Reality” as your guide.
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