Search

We live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. 'Neoliberal' premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we call the 'Twentieth-Century Synthesis': a pervasive view of law that encases 'the market' from claims of justice and conceals it from analyses of power. This Feature offers a framework for identifying and critiquing the Twentieth-Century Synthesis. This is also a framework for a new 'law-and-political-economy approach' to legal scholarship. We hope to help amplify and catalyze scholarship and pedagogy that place themes of power, equality, and democracy at the center of legal scholarship., FEATURE CONTENTS INTRODUCTION 1786 I. THE TWENTIETH-CENTURY SYNTHESIS 1794 A. The Autonomy of the Economy 1795 B. The Law of the Economy Remade 1801 C. The Twentieth-Century Synthesis Comes to [...]

The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power BY SHOSHANA ZUBOFF PUBLICAFFAIRS , 2019 Between Truth and Power: The Legal Constructions of Informational Capitalism BY JULIE E. COHEN OXFORD UNIVERSITY PRESS, 2019 Over the past several decades, our capacity to technologically process and exchange data and information has expanded dramatically. An early sense of optimism about these developments has given way to widespread pessimism, in the wake of a wave of revelations about the extent of digital tracking and manipulation. Shoshana ZubofFs book, The Age of Surveillance Capitalism, has been hailed by many as the decisive account of the looming threat of private power in the digital age. While the book offers important insights, ZubofFs account is too narrow: it fixates on technological threats to our autonomy and obscures the relationship between technology and the problems of monopoly, inequality, and discriminatory hierarchy that threaten our democracy. ZubofFs book also fails to appreciate the critical role that law plays in the construction and persistence of private power. Julie Cohen's book, Between Truth and Power: The Legal Constructions of Informational Capitalism, gives us a much better framework to comprehend intensifying forms of private power today and the role that law has played in supporting them. Drawing on Cohen's insights, I construct an account of the 'law of informational capitalism,' with particular attention to the law that undergirds platform power. Once we come to see informational capitalism as contingent upon specific legal choices, we can begin to consider how democratically to reshape it. Though Cohen does not emphasize it, some of the most important legal developments--specifically, developments in the law of takings, commercial speech, and trade--are those that encase private power from democratic revision. Today's informational capitalism brings a threat not merely to our individual subjectivities but to equality and our ability to self-govern. Questions of data and democracy, not just data and dignity, must be at the core of our concern., INTRODUCTION Over the past several decades, a series of extraordinary technological developments has drastically expanded human capacities to store, exchange, and process data and information. Early attempts to understand this [...]

III. EXPLANATORY AND POLICY SIGNIFICANCE What implications can we draw for innovation theory and policy from the continuum of excludability and from the existence of highly nonexcludable information goods of [...]

Intellectual property law was once an arcane subject. Today it is at the center of some of the most highly charged political contests of our time. In recent years, college students, subsistence farmers, AIDS activists, genomic scientists, and free-software programmers have mobilized to challenge the contours of intellectual property (IP) law. Very recently, some from these groups have begun to develop a shared critique under the umbrella of 'access to knowledge' (A2K). Existing accounts of the political economy of the field of IP have suggested that such a mobilization was unlikely. This Article takes the emergence of the A2K mobilization as an opportunity to develop a richer and less deterministic account of the contemporary politics of IP. It draws upon 'frame mobilization' literature, which illuminates the role that acts of interpretation play in instigating, promoting, and legitimating collective action. The frame-analytic perspective teaches that before a group can act it must develop an account of its interests and theorize how to advance these interests. These acts of interpretation are both socially mediated and contingent. Ideas can be a resource for those engaged in mobilization, but one that is not fully in their control. Frames thus can lay the scaffolding for a countermovement even as they pave the way for a movement's success. Law is a key location for framing conflicts because it provides groups with symbolic resources for framing, and because groups struggle within the field of law to gain control over law's normative and instrumental benefits. Law thus exerts a gravitational pull on framing processes. Engagement with law can influence a group's architecture, discourse, and strategies, and can also create areas of overlapping agreement and--as importantly--a language of common disagreement between opposing groups. The Article closes by suggesting some implications of this point, which should be of interest to those who design legal institutions and who engage in social mobilization. Most intriguing, perhaps, is the role it suggests that law may play in the creation of global publics and polities., INTRODUCTION I. COLLECTIVE ACTION AND FRAME MOBILIZATION II. FROM INTELLECTUAL PROPERTY TO ACCESS TO KNOWLEDGE A. The Historical Evolution of Enclosure and A2K B. IP and A2K as Mobilizing Frames [...]

In 1994, Congress passed a law commonly known as the Solomon Amendment, threatening universities and law schools with loss of federal funding if they deny or effectively prevent military recruiters [...]