Noncompetes, Human Capital, and Contract Formation: What Employment Law Can Learn From Family Law

Despite historical attention to such issues, the current approach to noncompete enforcement has been consistently criticized from a range of perspectives for not appropriately protecting the interests of either party. In Part II of this Essay, I take those criticisms as my starting point, discussing contemporary changes in the labor economy and in the popular expectations surrounding employment relationships that challenge the existing doctrinal test. In Parts III and IV, I consider possible changes to the doctrine, focusing primarily on the trend toward greater recognition of the contractual force of premarital agreements between spouses. In so doing, I use the "ultimate relational contract" to advocate for greater attention to formalities in the "penultimate relational contract."'