2006 Mich. St. L. Rev. 963 (2006)
Cubewrap Contracts and Worker Mobility: The Dilution of Employee Bargaining Power via Standard Form Noncompetes

handle is hein.journals/mslr2006 and id is 971 raw text is: CUBEWRAP CONTRACTS AND WORKER
MOBILITY: THE DILUTION OF EMPLOYEE
BARGAINING POWER VIA STANDARD FORM
NONCOMPETES
Rachel Arnow-Richman
2006 MICH. ST. L. REV. 963
TABLE OF CONTENTS
INTRODUCTION    ........................................................................................... 963
I.  RHETORIC VS. REALITY: How         NOTIONS OF BARGAINING POWER
INFLUENCE NONCOMPETE ENFORCEMENT .......................................... 967
A. The Disconnect Between Front End Choice and Substantive
E ff ects .......................................................................................... 969
B. An    Alternative   Justification: Bargaining     Power    on  the
B ack  E nd. ................................................................................. 973
II. BARGAINING POWER ON THE GROUND: HOW EMPLOYER CONTRACTING
PRACTICES CONSTRAIN WORKER CHOICE .......................................... 976
A. Cubewrap Terms and the Dilution of Initial Assent ..................... 977
B. In Terrorem Effects and the Power to Exit .................................. 980
III. THE RULES REVISITED: USING DOCTRINE TO INCENTIVIZE BETTER
BARGAINING   BEHAVIOR   ...................................................................... 984
A.  Requiring  Pre-Hire Disclosure ..................................................... 984
B. Encouraging Reasonable Restraints ............................................. 989
C ON CLU SION  .............................................................................................. 992
INTRODUCTION
Employment relationships are perhaps the paradigmatic example of
inequality of bargaining power in contract law.' Workers are like consum-
ers, the prototypical weaker party in commercial transactions, only more so.
Their immediate access to income and benefits; their long term financial
security and that of their families; and, in many instances, their personal
* Assistant Professor, University of Denver Sturm College of Law. L.L.M., Tem-
ple University School of Law; J.D., Harvard University; B.A. Rutgers University.
I. As Professor Daniel Barnhizer noted in his historical research on the subject,
courts' earliest rhetorical uses of the concept of bargaining power are found in cases dealing
with labor disputes at the turn of the twentieth century. See Daniel D. Barnhizer, Inequality
of Bargaining Power, 76 U. COLO. L. REv. 139, 194 (2005).

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