Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930

By Catherine L. Fisk | Go to book overview

PART III
WORKPLACE KNOWLEDGE AS
CORPORATE INTELLECTUAL
PROPERTY, 1895–1930

The modern law of corporate intellectual property was created during the same span of years that produced both the archetypes of reactionary legal conservatism and the probing critiques of law that laid the foundations of modern progressive legal thinking. These were the years of what Owen Fiss called, in his history of the Fuller Court (1888–1910), “the negative examples”—the cases that live in infamy among modern progressive lawyers for their heartlessness and racism: Lochner v. New York (which invalidated protective labor legislation); Plessy v. Ferguson (which approved racial segregation); In re Debs (which gave the president the power to use troops to end a strike); the Danbury Hatters case (which treated labor unions as illegal conspiracies to restrain trade); Adair (which invalidated a law granting a right to join a union); the Insular Cases (which denied constitutional rights to some people in territories annexed by the United States); and the Chinese Exclusion cases (which upheld the first racial restriction on immigration and excluded Chinese immigrants from citizenship).1 The late nineteenth century was a period of transition from what Morton Horwitz termed the “old conservative” worldview of “Classical Legal Thought”—“one that presumed that the existence of decentralized political and economic institutions was the primary reason why America had managed to preserve its freedom”—to a modern view. The modern worldview was characterized by the realization that the modern economy was dominated by large-scale, market-dominant corporate enterprises. Lawyers and other social theorists worried about the need to reform

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