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Introduction
Contemporary law has become grounded in the conviction that not only the outputs of innovation-artistic expressions, scientific methods, and technological advances-but also the inputs of innovation-skills, experience, know-how, professional relationships, creativity, and entrepreneurial energies-are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property (IP) but also "cognitive property." The new cognitive property has emerged under the radar, commodifying intellectual intangibles that have traditionally been kept outside of the scope of intellectual property. This Article introduces the growing field of human capital law at the intersections of IP law, contract and employment law, and antitrust law and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.
Regulatory and contractual controls on human capital-postemployment restrictions, including noncompetition contracts, nonsolicitation, nonpoaching, and antidealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as nonpatentable and noncopyrightable ideas; and nondisclosure agreements, trade secret laws, and economic-espionage prosecution against former insiders-are among the fastest growing frontiers of market battles.2 Regionally and globally, these disputes heavily shape industrial competition. Through this web of extensively employed mechanisms, knowledge that has traditionally been deemed part of the public domain becomes proprietary. Pre-innovation assignment agreements regularly go beyond the subjects that IP deems commodifiable. They also regularly reach into the future, propertizing innovation that has not yet been conceived. Nondisclosure agreements span beyond traditionally defined secrets under trade secrecy laws and are routinely enforced by courts.3 Violations of secrecy requirements are also increasingly criminalized, chilling exchanges that are recognized as productive and consistent with professional norms. Noncompete agreements are now required in almost every industry and position, stymieing job mobility and information flows. Beyond the individualized agreements between firms and employees, new antitrust investigations of Silicon Valley giants, including Apple, Google, Intel, eBay, and Pixar, reveal the rise of collusive antipoaching agreements between firms. Postemployment restrictions have become so widespread that they form a cognitive property thicket that curtails efficient recruitment efforts and entrepreneurship.
While IP law restricts knowledge and information that cannot be taken out of the public domain, this delicate balance is subverted in the emerging field of human capital law. In patent law, the lines between nonpatentable abstract...