BETWEEN RIGHTS AND CONTRACT: ARBITRATION AGREEMENTS AND NON-COMPETE COVENANTSRights and Contract • March 16th, 2021
This Article aims first to show structural parallels between non-compete covenants and mandatory arbitration agreements that place them at a distinct intermediate point along the spectrum between nonwaivable rights and ordi- nary contract. Second, it seeks to uncover a common logic underlying the law’s choice of this particular hybrid of rights and contract. The linchpin of that common logic lies in the threat that an unregulated waiver of one right (the right to compete or to litigate future claims) poses to adjacent employee rights that the law deems nonwaivable. Third, this Article deploys that underlying logic to offer a critical assessment of the law governing non-competes and arbi- tration agreements. Finally, this Article tentatively explores the broader poten- tial usefulness of conditional waivability as a way of regulating some terms of employment. The intriguing potential of conditional waivability lies in its in- jection of some of the virtues of contract—especially flexibi
