The Brand Defense

Abstract

Declining worker power—and increasing employer power—has suppressed wage growth and increased inequality. This decline is reinforced by contradictions in law that strengthen employers’ bargaining leverage over workers. This Article exposes those contradictions, tracing how employers have exploited the consumer rights revolution to devise brand protections and defenses that justify their control over vertically disintegrated labor markets. The Article takes a systemic view of intellectual property, antitrust, and work law to uncover their interconnected protection of employers’ brand rights at the expense of worker power. Based on the insights derived from this analysis, it proposes a suite of doctrinal and regulatory reforms to work law, antitrust doctrine, and trademark licensing, all as a means of “defetishizing” brand and reversing the trend of declining worker power.