Catherine L. Fisk

The Role of Private Intellectual Property Rights in Markets for Labor and Ideas: Screen Credit and the Writers Guild of America, 1938-2000

This history of screen credit and the Writers Guild of America focuses on the union’s administration of private intellectual property rights to facilitate the labor market for writers and the market for ideas, scripts, and treatments for film and TV. Screen credit is one of the very few forms of intellectual property in the modern economy that is designed by workers for workers and without the involvement of the corporations that control most intellectual property policy. Based on research in the archives of the Writers Guild not available to the public, this article argues that the Guild survived conditions that might lead to de-unionization because of the value it provides writers and employers in managing markets for labor and ideas. In particular, the Writers Guild administers two private intellectual property rights systems – the screen credit system and the script registry – that facilitate transactions between writers and producers. The experience of the Guild suggests that under the right circumstances unions can support innovation by creative private intellectual property rights systems to address structural problems in labor markets for talented short-term workers and the start-up enterprises that hire them.

Law and the Evolving Shape of Labor: Narratives of Expansion and Retrenchment

This essay muses on the relationship between law, labor organizing, politics, and the role of academic scholarship on law and work since 1980. As globalization of manufacturing and labor migration have transformed American culture and labor, the boundaries of labor studies have expanded. The more expansive understanding of labor evident in modern scholarship is partly attributable to the decline in union density and the rise of social movements focused on expanding rights of marginalized workers. Yet hyper-capitalism and attacks on labor liberalism have threatened New Deal labor protections and social safety net programs that were core achievements of past labor organizing and foundations for future labor organizing. The rise of income inequality and the decline of middle class jobs, along with right-wing attacks on labor and social welfare legislation, signal a seismic cultural shift that we have only begun to experience and will shape the future of socio-legal studies of labor.

Labor Protest Under the New First Amendment

Low-wage workers across the country have recently gripped the nation’s attention with public demonstrations calling for workplace fairness. But as these workers and the unions supporting them employ new and innovative strategies to organize their workplaces and improve their working conditions, employers and the National Labor Relations Board have charged them with violating section 8(b)(7) of the National Labor Relations Act, which prohibits peaceful picketing to organize workers or gain employer recognition of a union. This article analyzes the history and impact of labor picketing restrictions in light of the Supreme Court’s recent First Amendment jurisprudence. We demonstrate that the National Labor Relations Board, its enforcement officials, and the courts can no longer apply old law prohibiting picketing for recognitional and organizational objects. The NLRA’s prohibitions on labor unions picketing to obtain recognition or get workers to join them are unconstitutional speaker-based and content-based discrimination. We describe how the Board and the courts can adopt narrower interpretations of labor picketing that accord with the Supreme Court’s recent First Amendment cases. Specifically, we advance three proposals to bring the Board’s interpretation and enforcement practices into compliance with the Constitution, and a fourth approach that might at least partially address the constitutional infirmities of the Board’s current approach. All of these proposals aim to ensure that section 8(b)(7) will be violated only by conduct that actually or imminently coerces employees or companies in the selection of a bargaining representative through methods other than peaceful persuasion of consumers or employees to cease doing business with the firm.

Story Work: Non-proprietary Autonomy and Contemporary Television Writing

Based on interviews with three dozen working writers in American television, this paper argues that TV writers assert their status as labor to guarantee their shared craft identity with novelists, dramatists, and authors of other conventional literary material. The tension between writers’ desire for literary prestige on one hand, and their recognition that they create at the behest of company executives, on the other, emerges, alternately, in the imagined difference between writers and producers and, most basically, between autonomous creators and corporate hacks. Our novel observation is that writers’ identification with labor, including their commitment to their union, the Writers Guild of America, plays a central role in resolving these tensions. Union membership solves a problem at the heart of contemporary TV writing insofar as it transforms a necessity into a virtue; opposing management as labor, the writer registers her opposition to creative input that might otherwise compromise her sense of artistic integrity. That opposition allows writers to imagine themselves at odds with the studios and networks that employ them, and at the same time to commit to artistic over and against corporate values.

Some Realism About Realism in Teaching About the Legal Profession

UC Irvine Law School has adopted a first-year course designed to introduce students to the rich empirical literature on the legal profession and to give them an understanding of practice realities and critical perspectives on those practices. It also seeks to provide students with information about the social and cultural contexts of law practice that they will find useful as they navigate their careers. This chapter describes and assesses the course and our experience while teaching it.

Collective Actions and Joinder of Parties in Arbitration: Implications of DR Horton and Concepcion

Well over a century ago, legal and policy analysts realized that the days of purely individual action in matters of business and labor were over, and that legal rules must adapt to the social and economic power of large corporations. Among the rules that changed were archaic limitations on joinder of claims and parties in litigation and laissez faire “liberty of contract” doctrines invalidating labor legislation. Recently, lawyers representing large corporate employers have urged a revival of old rules limiting class actions and labor rights. But, as this Article will show, it is not at all clear that their clients will benefit from the legal regime the lawyers have created. As long as employers have large workforces working under uniform policies, they will face dozens or hundreds of similar claims challenging pay practices, discrimination, and harassment. Group adjudication arose to address efficiently the many similar claims that arise when large institutions adopt uniform policies. Individual arbitration of such claims may result in fewer claims being filed, especially if confidentiality provisions keep co-workers from learning from each other about how to assert successful claims. But unless or until employers figure out a way to shift all the costs of dispute resolution onto the claimaints (and thus far courts have resisted such efforts), and to silence all claimants and their lawyers, employers will face many similar claims, will be paying part or all of the costs of lots of identical arbitrations, and will be paying lawyers to handle them separately rather than on a classwide basis.The National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The National Labor Relations Board (“the Board”) has long held that protected activity includes asserting claims in courts, agencies, and in arbitration. In D.R. Horton, the Board found the NLRA to prohibit enforcement of an employer-imposed requirement that employees waive their right to bring a collective action challenging their working conditions. On petition for review, a divided panel of the United States Court of Appeals for the Fifth Circuit rejected the Board’s determination, holding that the Federal Arbitration Act (FAA) requires enforcement of the mandatory arbitration agreement, including its class action waiver.This Article explains why collective action waivers or requirements to arbitrate individually are unenforceable under the National Labor Relations Act and the Norris LaGuardia Act. The Article also explains why arbitration agreements requiring claims to be brought by individuals are not covered by the Supreme Court’s reasoning in Concepcion and Italian Colors to the extent they prohibit joinder of fewer parties than would be required to bring a large class action and, therefore, remain protected by labor law. The Article notes the inconsistency in the FAA cases about whether agreements can waive the right to file charges with some agencies and courts rather than others and therefore critiques the Fifth Circuit’s ruling that the FAA trumps the employees’ rights under NLRA sections 7 and 8(a)(1) to file group actions in court or arbitration but does not trump section 8(a)(4), which protects the right to file unfair labor practice charges. Finally, the Article raises some questions about the practical wisdom of the courts’ willingness to allow employers to require employees to pursue claims only as individuals. State and federal courts universally allow liberal joinder of plaintiffs and defendants because it is more efficient and avoids some truly thorny issues about the preclusive effect of judgments. The Fifth Circuit majority’s assumption, like the Supreme Court majority’s in Concepcion, that individual determination of claims is better suited to arbitration is simply wrong in many cases. Unless employers can opt out of the usual rules for the binding effects of judgments and the usual rules for joinder of claims and parties, the notion that individual arbitration is superior for everyone (including employers) is simply wrong.

Contingent Loyalty and Restricted Exit: Commentary on the Restatement of Employment Law

Chapter 8 of the American Law Institute’s Restatement of Employment Law proposes bad law in every sense of the word when it restricts job mobility of current and former employees by imposing a general duty of loyalty and providing for enforcement of non-compete agreements. Its rules are vague and confusing on crucial issues where clarity and precision are needed. In allowing employers to prevent current and former employees from engaging in competitive employment, Chapter 8 is out of sync with the assumptions underlying the at will rule articulated in Chapter 2 of the Restatement, which insists that employment is an at will relationship that either side can terminate in order to pursue more lucrative opportunities with other contracting partners. It is also out of sync with the norms of many contemporary employment relationships in which employees are expected to bring their knowledge and skills to every job and to depart, perhaps after a relatively short-term period of employment, with enhanced knowledge and skills. The only legitimate interests employers have in restraining competition by current or former employees are protected by the law of misappropriation of trade secrets, by the torts of interference with contract and interference with prospective business advantage, and by the corporate opportunity doctrine for managerial employees who owe a fiduciary duty to the firm. The duty of loyalty, as stated in the Restatement and as applied by courts, adds no legitimate protection to employers and is simply anticompetitive. More important, in allowing employers to resort to contract and tort liability to restrict labor market mobility, the Restatement ignores a substantial body of empirical research showing that legal restrictions on mobility are bad for employees, bad for firms, and bad for the economy as a whole. Courts should approach provisions of Chapter 8 skeptically. If they do, the Restatement may fail in its aspirations to shape the law, but at least it will not fail in the ALI’s goal of improving the law.