The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity

Abstract

The English case Lumley v. Wagner is part of the canon of contract law. The case maintains that although employees cannot be specifically ordered to perform on a contract, they may be enjoined from working for a competitor.

This article demonstrates how hostile the Lumley rule was to the American ethos of free labor when it was first introduced in the United States in the mid-nineteenth century. However, the Lumley rule was ultimately accepted into American Law, and indeed into the canon, through a curious pathway. This rule became incorporated in the American common law through a series of cases all of which involved women who performed on stage. Only after application in a series of cases enjoining women performers did the rule gain a foothold in American common law. This injunction was legally acceptable in cases involving women because it was consonant with a rule applied against women in divorces, that is, they could sever the marriage but they were not permitted to remarry. This was also socially acceptable because the social position of women stage performers was seen as lacking the propriety expected of women by Victorian standards of morality.

Thus, a rule that was counter to the American ethos of free labor came into the canon, and came to be applied to men, only after it had been applied against women. By the time that American treatises reported the rule, the gendered identity of every previous application was overlooked.

Keywords: contracts, contract remedies, injunction, women's history, subordination principles, negative specific performance, actresses and performers, legal change, women's status,19th century morals, women as workers,theaters,theater history,exclusivity clauses,covenants not to compete,restrictive covenants