Question 1

Which states use the blue pencil doctrine?

Accepted Answer

Texas, Georgia, New York, and Michigan are among states that allow courts to blue-pencil restrictive covenants. California doesn't — it bans most non-competes outright. Some states, like Virginia, take a middle approach. Check your state's specific rules before relying on this doctrine.

Question 2

Does the blue pencil doctrine only apply to non-competes?

Accepted Answer

It's most commonly used for non-competes and non-solicitation agreements, but courts have applied it to other contract provisions too — like overbroad confidentiality clauses or unreasonable liquidated damages provisions. The core idea (fix what you can, keep the rest) shows up across contract law.

Question 3

What happens if a court can't blue pencil my non-compete?

Accepted Answer

If the restriction is so broad that it can't be reasonably narrowed by crossing things out, the court will void it entirely. Blue penciling works by removing words, not adding them. If the clause says 'worldwide, all industries, forever,' there's nothing to pencil down to — it's just void.

Question 4

Can I count on a court to fix an overbroad non-compete?

Accepted Answer

Don't. Some courts blue pencil, some don't, and you won't know which approach your judge takes until you're already in litigation. Write reasonable restrictions from the start. Relying on courts to fix your drafting is an expensive gamble.

Question 5

Is the blue pencil doctrine the same as severability?

Accepted Answer

They're related but different. Severability removes an entire clause and keeps the rest of the contract. Blue penciling modifies a single clause — crossing out specific words or phrases to make it enforceable. A severability clause might save your contract; blue penciling saves a specific provision within it.

Blue Pencil Doctrine

Definition

In Practice

Common in these contract types

Related terms

Frequently asked questions about blue pencil doctrine

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