Solomon and Strikes : Labor Activity, the Contract Doctrine of Impossibility or Impracticability of Performance, and Federal Labor Policy

Arthur Linton Corbin famously remarked that courts, when deciding contract cases involving the defense of impossibility or impracticability of performance, should “pray for the wisdom of Solomon.” This is particularly true when the event causing non-performance is labor activity. This article addresses whether such cases are not only difficult because they depend on each case's particular circumstances, but because whether to excuse a party's non-performance due to labor activity often involves issues of federal labor policy. This intersection of contract doctrine and federal labor policy is an area that has been neglected by both contract scholars and labor law scholars. When considering the contract doctrine of impracticability, contract scholars devote little attention to whether such cases affect areas of concern outside of contract law. When considering federal labor policy, labor law scholars generally only consider unions' and employers' rights and duties under the National Labor Relations Act, and fail to take into account that the common-law contract rights of employers and third parties can play an important role in federal labor policy. Although the issue of labor activity excusing the non-performance of a contract duty might currently arise less often than in the past because of the decrease in union density, the increasing receptiveness of courts over the twentieth century to the excuse of impracticability, coupled with Congress's decision to remove authority of the federal courts and states over labor matters, invites a clash between state contract law and federal policy. This Article addresses how the doctrine of impossibility or impracticability should be applied in cases involving labor activity, and concludes that courts should generally not consider federal labor policy because Congress intended such policy to be made by the National Labor Relations Board. It also concludes, however, that courts should not hesitate to scrutinize a party's alleged excuse for non-performance simply because federal labor law issues are involved