Tradesmen International, Incor v. John Black

I join the court’s opinion in full. I write separately to emphasize both the importance of the choice-of-law issues in covenant-not-to-compete litigation and the under-appreciated consequences of courts’ willingness in many states to rewrite unreasonable covenants so as to enforce a reasonable but fictional covenant, one that the parties might have made but did not actually make.

At a superficial level, many states adopt the same broad principles in deciding whether and how to enforce an employee’s covenant not to compete with a prior employer. Such contracts are considered to be in restraint…