Metaphor and narrative have played a crucial role in shaping perceptions of the nature of employment relations. Lawyers, judges, and firms have long been "narrative entrepreneurs," deploying metaphor and story strategically to shape the legal culture of work. When AT&T cut 40,000 jobs in one year, its Vice President of Human Resources said from then on all workers should regard themselves as "self-employed . . . vendors who come to this company to sell their skills." The metaphor suggested that all formerly career employees were now "contingent" in the sense that they suddenly had the same employment contract as day laborers. The law of employment contracts has been powerfully influenced by the metaphor of the corporation as a person, which conceptualizes an internal labor "market" as a ladder. The legal obligations of corporate managers vis-à-vis shareholders (greater) and employees (lesser) likewise have been affected. An alternative metaphor—that a corporation is a network of people bound by a variety of contractual and other relationships—might have led to dramatically different laws regarding ownership and control of employee innovation, protections for low-level but nominally supervisory workers, and the structure of proof in discrimination cases.
The new economy is characterized by dramatic changes in the labor market brought about by globalization, the decline of career jobs, and the steady decline of union density. This Article explores the ways in which dominant legal metaphors about corporations, about work, and about workplace knowledge and the nature and origins of innovation have become increasingly inapt in the new economy. The principal focus of the Article is the metaphors surrounding innovation and intellectual property, and the metaphors concerning employment security and the allocation of risk of unemployment; poor health, or old age. Building on empirical literature showing that most innovation occurs among a network of people at multiple firms, rather than solely among the employees of a single firm, the Article suggests a modification of the dominant metaphor of corporate authorship of patents, copyrights, and other "proprietary information." The "networks of innovation" metaphor suggests the plausibility of a metaphor of "joint authorship" of workplace knowledge and the desirability of a system allocating credit, as screen credit is given in movies or on TV. New metaphors about the formation and content of employment "contracts" are also explored. Finally, the Article suggests that publicly subsidized and privately administered "social insurance" is a better metaphor than "employee benefits" for capturing the enormous social and economic importance of health, disability, and retirement income.
Catherine L. Fisk,
Knowledge Work: New Metaphors for the New Economy,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol80/iss2/10