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“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
Catherine Fisk
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 …
Debating Employee Non-Competes And Trade Secrets, Sharon Sandeen, Elizabeth A. Rowe
Debating Employee Non-Competes And Trade Secrets, Sharon Sandeen, Elizabeth A. Rowe
Faculty Scholarship
Recently, a cacophony of concerns have been raised about the propriety of noncompetition agreements (NCAs) entered into between employers and employees, fueled by media reports of agreements which attempt to restrain low-wage and low-skilled workers, such as sandwich makers and dog walkers. In the lead-up to the passage of the federal Defend Trade Secrets Act of2016 (DTSA), public policy arguments in favor of employee mobility were strongly advocated by those representing the "California view" on the enforceability of NCAs, leading to a special provision of the DTSA that limits injunctive relief with respect to employee NCAs. Through our lens as …