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After a four-year stint at Duke Law School, Professor Catherine Fisk has joined the UC Irvine law faculty and returned to Southern California, where she had been on the law faculty at USC and Loyola Law School. An expert in labor and employment law and law & humanities, Prof. Fisk is especially interested in how globalization and the evolution of the information economy affect American workers. And she’s been pretty busy recently: Among other things, she just completed a 12-year book project, she was appointed to a union’s ethics board, she was awarded an endowed Chancellor’s Chair by the university, and she’s working on developing the law school’s innovative new curriculum. She recently sat down for an interview with Tom Lerner, a UCI double major in Literary Journalism and Criminology, Law & Society.
Your field, labor and employment law, is an area that most people are at least somewhat familiar with because most people have seen or experienced workplace conflict. What drew you to the field originally?
All of us work. Labor and employment laws apply to everyone and they directly and profoundly affect our lives. The field allows a lawyer to combine an ambitious, progressive social agenda with a law practice that is intellectually intriguing and always changing.
Your new book, Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930 (University of North Carolina Press), will be out soon. What’s your main argument there?
The book, which will be released this fall, is a history of the 19th century law governing employer and employee relations over workplace knowledge, including patents, copyrights and trade secrets. I spent 12 years on the research and writing, and did archival research on many fields of law and many sectors of the economy, including manufacturing, book publishing and theater. The book reminds us that we enjoyed rapid technological development in the 19th century even though employees, rather than employers, owned most intellectual property rights to innovations generated in the workplace. Today’s mix of individual and corporate ownership of the legal rights to workplace knowledge and employee-generated intellectual property is neither necessary nor sufficient to a robust and innovative economy.
You have recently been named to the ethics review board of the Service Employees International Union. Why was this board created?
The SEIU is the largest union in the United States, with over 2 million members. It is a diverse and innovative institution that represents all types of workers, including janitors, government employees and nurses. Joining me on the Ethics Review Board are Reverend Nelson Johnson, a pastor of Faith Community Church in North Carolina, and Ben Sachs, an associate professor at Harvard Law School. We will help the union address complaints from its members about the governance of the union and the management of the union’s finances.
You have recently written articles in favor of the Employee Free Choice Act, which is pending in Congress. Among other things, the act requires arbitration in cases where newly unionized workers cannot reach a contract with their employer. Why do you think this is important?
The Employee Free Choice Act is the single most important labor law reform in 50 years. The bill will make it easier to form unions, negotiate contracts, and importantly, it will increase penalties for violating labor laws. Currently, the penalties for violating the labor laws are so minor that some economically rational employers conclude that it makes more business sense to violate the employee rights to unionize and to bargain. Commitment to the rule of law requires that the law be meaningfully enforced, and this bill would be an important step in the right direction.
What other research projects are you working on?
I recently published an innovative casebook, Labor Law in the Contemporary Workplace (West Publishing Co., 2009), which I wrote with four other labor law professors. The book enables law professors to teach a labor law course focusing on labor law as it is currently practiced today. In addition, I am starting work on another book which will be a 20th century history of attribution of work (think of screen credit in Hollywood).
You have been awarded an endowed Chancellor’s Chair by the university and will be giving a lecture on legal history for the investiture ceremony in September. What does the honor mean to you and what will you be speaking about?
It’s a great honor to be among the very distinguished faculty here at UCI who hold Chancellor’s Chairs. I plan to speak about my new research on how attribution of creative work came to play the important role in promoting entrepreneurship and vibrant labor markets in the 20th century that ownership of intellectual property rights in work played in the 19th century. Since my lecture will occur shortly after the founding class of law students arrives at UCI, I hope to use it as the occasion to introduce our law students to the value to lawyers of studying law from interdisciplinary perspectives of history and the humanities.
Duke Law Journal has just published your article, “The NLRB in Administrative Law Exile: Problems With Its Structure and Function and Suggestions for Reform,” on labor law during the Bush Administration. What was the focus of that article?
In that article, my co-author, Deborah Malamud, and I argue that the controversial policy changes implemented by the National Labor Relations Board during the Bush Administration revealed longstanding problems within American labor law. The article analyzes the obstacles that the agency faces in regulating labor relations; for example, the agency is prohibited by statute from employing economists. The article concludes by suggesting reforms that Congress, the President, the newly constituted NLRB in the Obama Administration, and the federal courts can implement to improve the quality of NLRB decisionmaking, rather than just putting their mark on its political leanings.
You left a comfortable position at prestigious Duke Law School a year ago to come to an entirely new law school with no track record. Why?
One of the most attractive things about coming to UC Irvine was the once-in-a-lifetime opportunity to build a great institution from scratch. Many law professors and lawyers believe that both elite and non-elite law schools could do a better job of training students for the practice of law. Particularly now, as law firms, government, and public-interest organizations face budget cuts and have fewer resources available to train young lawyers, law schools need to combine the rigorous intellectual training at which they have long excelled with equally rigorous practical skills-oriented training. At UCI, we do not have to change the status quo to innovate in the curriculum; we have the chance to do it right from the very beginning. Also, and equally as important, UCI already had an amazing community of scholars in the humanities and social sciences who study law from interdisciplinary perspective, so it offers wonderful colleagues and opportunities for scholarly collaboration outside the law school. We are building a law school at a university that already has renowned scholars outside the law school who study law, and it’s been a great treat to get to know them and to talk about collaborating on research.
Other than teaching and continuing your scholarship, is there anything else you hope to achieve here at UCI?
At the moment, I’m working with my colleague Professor Ann Southworth on the curriculum for a new course called "The Legal Profession." This course will teach students about the ethical obligations of lawyers in the social and economic context in which lawyers really confront them and will introduce students to what it’s really like to practice different kinds of law. So often, students graduate from law school not knowing what different lawyers actually do. Do they sit at a computer? Do they go to court? Do they file papers? What’s their morning like? We will answer these questions by having lawyers come to the class and talk to students about what they do. Students will also engage in role-playing exercises, and they will shadow the attorneys at their jobs and see them working in real-life settings. The course will also be a portal to introduce law students to interdisciplinary study of law. For example, we will learn some economic analysis of law by studying the economics of the legal profession, and we will read some legal sociology, legal anthropology, legal history and legal psychology.
- University of California, Berkeley, J.D.
- University of Wisconsin, LL.M.
- Princeton University, B.A., summa cum laude
- Duke Law School
- Gould School of Law, University of Southern California
- Loyola Law School, Los Angeles
- University of California, Los Angeles
- University of Wisconsin
- Labor and employment law, civil rights
- Author of three books: Labor Law in the Contemporary Workplace (with Cameron, Corrada, Dau-Schmidt & Malin, West Publishing Co., forthcoming 2008), Labor Law Stories (with Cooper, Foundation Press, 2005) and Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930 (forthcoming, University of North Carolina Press, 2009).
- She has published in numerous top law reviews on topics including employment law, employee benefits, civil rights, same-sex partnerships, labor history and the Senate filibuster. She is now writing a book about the origin of the resume, a legal and social history of human capital and professional reputation in the 20th century.
- While a law professor, Professor Fisk has briefed and argued numerous appeals on a pro bono basis. She speaks to judges and bar associations on employment law and civil rights and has served as a labor arbitrator. As a scholar with affiliations in the social sciences and the humanities, Professor Fisk has been active the Law & Society Association and through a number of humanities organizations.
- Law & Society Association, trustee
- Labor Law Group, executive committee member
- ACLU of Southern California, past longtime vice president of board of directors
- Duke’s Franklin Humanities Institute 2007-08 Seminar, fellow
- United States Department of Justice, Civil Appellate Division, attorney
- Rogovin, Huge & Schiller, Washington D.C., associate
- Honorable William A. Norris, U.S. Court of Appeals for the Ninth Circuit, law clerk