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89 Notre Dame L. Rev. 661 (2013-2014)
Participating as a Theory of Employment

handle is hein.journals/tndl89 and id is 689 raw text is: PARTICIPATION AS A THEORY OF EMPLOYMENT Matthew T. Bodie* ABSTRACT The concept of employment is an important legal category, not only for labor and employment law, but also for intellectual property law, torts, crimi- nal law, and tax. The right-to-control test has dominated the debate over the definition of employee since its origins in the master-servant doctrine. However, the test no longer represents our modern notion of what it means to be an employee. This change has played itself out in research on the theory of the firm, which has shifted from a model of control to a model of participa- tion in a team production process. This Article uses the theory of the firm literature to provide a new doctrinal definition for employee based on the concept of participation rather than control. The participation test better delineates the boundaries of employment and provides a framework for addressing the stresses on firms and workers that are nfe within the modern economy. INTRODUCTION The concept of employment plays an important role across the legal landscape. Most obviously, labor and employment law protec- tions provided under local, state, and federal law are limited to those @ Matthew T. Bodie. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Professor, Saint Louis University School of Law; Co-Reporter, Restatement (Third) of Employment Law. This Article reflects my own views and not those of the American Law Institute or my fellow reporters. Many thanks to the students in the seminar Law and Theories of Employment at Notre Dame Law School in Fall 2012. Their thoughts and insights provided significant contributions to this paper. Thanks as well to Rick Garnett and the Notre Dame faculty for their feedback through their workshop series, as well as to commentators at the 2013 American Law & Economics Association, Law & Society Association, and Midwest Law and Economics Association annual meetings. I am also much obliged to Guy Davidov, Matt Dimick, Cindy Estlund, Michael Fischl, Tim Glynn, Rebecca Hollander-Blumoff, Brishen Rogers, and Charlie Sullivan for their very helpful comments. And special thanks tojay Tidmarsh for lending me volume 2 of the Restatement (Second) of Torts. 661

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