Credit Where It’s Due: The Law and Norms of Attribution

The reputation we develop by receiving credit for the work we do proves to the world the nature of our human capital. If professional reputation were property, it would be the most valuable property that most people own because much human capital is difficult to measure. Although attribution is ubiquitous and important, it is largely unregulated by law. In the absence of law, economic sectors that value attribution have devised non-property regimes founded on social norms to acknowledge and reward employee effort and to attribute responsibility for the success or failure of products and projects. Extant contract-based and norms-based attribution regimes fail optimally to protect attribution interests. This article proposes a new approach to employment contracts designed to shore up the desirable characteristics of existing norms-based attribution systems while allowing legal intervention in cases of market failure. The right to public attribution would be waivable upon proof of a procedurally fair negotiation. The right to attribution necessary to build human capital, however, would be inalienable. Unlike an intellectual property right, attribution rights would not be enforced by restricting access to the misattributed work itself; the only remedy would be for the lost value of human capital. The variation in attribution norms that currently exists in different workplace cultures can and should be preserved through the proposed contract approach. The proposal strikes an appropriate balance between expansive and narrow legal protections for workplace knowledge and, in that respect, addresses one of the most vexing current debates at the intersection of intellectual property and employment law

Foreword: Looking for a Miracle? Women, Work, and Effective Legal Change

Foreword to vol. 13, Duke Journal of Gender Law & Polic

The Story of ‘Hoffman Plastic Compounds v. NLRB’: Labor Rights Without Remedies for Undocumented Immigrants

In Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002), the United States Supreme Court held that undocumented workers are not entitled to remedies for violations of their rights to unionize under the National Labor Relations Act. The majority of the Court viewed enforcement of immigration policy prohibiting employment of undocumented workers as more important than protecting the labor rights of both undocumented workers and their U.S. citizen co-workers who join their efforts to improve working conditions. The chapter explores the origins of the case in a minimum-wage factory in Los Angeles, the surprising turn of events when the illegally fired worker blurted out on the witness stand that he was not a U.S. citizen, how the lawyer for the employer portrayed his client as being unaware of the worker\u27s undocumented status when the employee he had stated on the job application that he was not authorized to work in the U.S., and the closely-divided decisions at every level of judicial review in which judges disagreed strenuously how to reconcile immigration and labor policy. The chapter also explores the impact of the case on a wide variety of state and federal employment cases in which employers have argued that undocumented workers are unprotected by law

Foreword: Making Makeup Matter

More than a decade ago, Katharine Bartlett, currently Dean of Duke Law School, authored a foundational article on discrimination based on appearance choices.1 The article made a big splash, provocatively raising the question of whether discrimination claims based on dress and appearance standards are cognizable under Title VII, the federal law that prohibits discrimination on the basis of, among other aspects of identity, race and sex. [...] to a large extent, their reasoning centered on two ideas: (1) that employers have broad latitude to define the professional boundaries of their workplaces and that grooming standards are a reasonable way for them to do precisely that; and (2) that Title VII protects identity characteristics that are immutable (for example, phenotype) or that implicate a fundamental right (for example, marriage). Trivial though the subject of makeup supposedly is, the Jespersen litigation garnered an enormous amount of attention as it wound its way from the district court, to a three-judge panel of the Ninth Circuit, and then to the Ninth Circuit en banc

After Inclusion

What forms of discrimination are likely to be salient in the coming decade? This review flags a cluster of problems that roughly fall under the rubric of inclusive exclusions or discrimination by inclusion. Much contemporary discrimination theory and empirical work is concerned not simply with mapping the forces that keep people out of the labor market but also with identifying the forces that push them into hierarchical structures within workplaces and labor markets. Underwriting this effort is the notion that, although determining what happens before and during the moment in which a prospective employee is excluded from an employment opportunity remains crucial to antidiscrimination theory and practice, significant employment discrimination problems can occur after a person is hired and becomes an employee. These problems transcend racial and sexual harassment. They include a range of subtle institutional practices and interpersonal dynamics that create systemic advantages for some employees and disadvantages for others. We predict that the next generation of race discrimination scholarship will engage these “after inclusion” workplace difficulties theoretically, empirically, and doctrinally

After Inclusion

What forms of discrimination are likely to be salient in the coming decade? This review flags a cluster of problems that roughly fall under the rubric of inclusive exclusions or discrimination by inclusion. Much contemporary discrimination theory and empirical work is concerned not simply with mapping the forces that keep people out of the labor market but also with identifying the forces that push them into hierarchical structures within workplaces and labor markets. Underwriting this effort is the notion that, although determining what happens before and during the moment in which a prospective employee is excluded from an employment opportunity remains crucial to antidiscrimination theory and practice, significant employment discrimination problems can occur after a person is hired and becomes an employee. These problems transcend racial and sexual harassment. They include a range of subtle institutional practices and interpersonal dynamics that create systemic advantages for some employees and disadvantages for others. We predict that the next generation of race discrimination scholarship will engage these “after inclusion” workplace difficulties theoretically, empirically, and doctrinally

Compelled Disclosure and the Workplace Rights it Enables

Worker and consumer protection laws often rely on the regulated entity to notify workers or consumers of their legal rights because it is effective and efficient to provide information at the time and place where it is most likely to be useful. Until the Supreme Court ruled in NIFLA v. Becerra in 2018 that a California law regulating crisis pregnancy centers was an unconstitutional speaker-based, contentdiscriminatory regulation of speech, mandatory disclosure laws were constitutionally uncontroversial economic regulation. Yet, the day after striking down a disclosure law in NIFLA, the Court in Janus v. AFSCME Council 31 expanded the right of workers to resist supporting unions, a right that depends on an even more intrusive compelled notice regime than the one the Court struck down in NIFLA. When the Court found a First Amendment right not to disclose on one day and a First Amendment right to receive information based on a system of mandatory disclosure on the next, it revealed that treating disclosure rules as compelled speech inevitably requires the Court to pick sides in fights involving free speech or other rights claims on both sides. This essay argues that compulsory notice or disclosure laws are not constitutionally problematic when and insofar as they require statements of fact or statements of policy that are unambiguously labeled as speech of the government rather than the views of the speaker

“An Ingenious Man Enabled by Contract”: Entrepreneurship and the Rise of Contract

A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated American thinking on the subject of work. Based on original archival research, this paper explores the stories behind two influential court decisions about employee inventions in the 1890s. In one, a court held that dye recipes were trade secrets owned by a Philadelphia textile mill rather than the human capital of skilled dyers. In the other, a court upheld a contract assigning future patents to the Duke tobacco companies of North Carolina. The paper examines the disjuncture between the rhetoric and doctrine of the court decisions, which assimilated notions of employee dependence and loyalty with the new laissez faire contract, and the norms of the business world in which creative workers operated. It tells the neglected story of how new legal rules transformed entrepreneurship and what that meant for creative workers. These cases, and others like them, rejected the nineteenth century notion that skilled workers and inventive employees were to use their knowledge and ingenuity entrepreneurially. Henceforward, employee knowledge and creativity were deemed to be transferred by an employment contract from employee to firm. The transformation of the employment contract dramatically changed the nature of entrepreneurship by employees, making it much more difficult for inventors to parlay their technical knowledge and business acumen into a successful firm as had been the model of business development to that point. Independent inventors who negotiated carefully for control of their intellectual property rights could remain entrepreneurial. Others would have to pin their hopes on the fortunes of their corporate employers