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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 [...]

In recent months, pharmaceutical manufacturers have brought legal challenges to a provision of the 2022 Inflation Reduction Act (IRA) empowering the federal government to negotiate the prices Medicare pays for certain prescription medications. One key argument made in these filings is that price negotiation is a "taking" of property and violates the Takings Clause of the US Constitution. Through original case law and health policy analysis, we show that government price negotiation and even price regulation of goods and services, including patented goods, are constitutional under the Takings Clause. Finding that the IRA violates the Takings Clause would radically upend settled constitutional law and jeopardize the US's most important state and federal health care programs. [ABSTRACT FROM AUTHOR]

High drug prices are creating serious health and fiscal problems in the United States today. This reality is vividly illustrated by recently approved medicines to treat Hepatitis C. These new medicines can cure nearly everyone with this potentially fatal infection and may even enable the elimination of this disease. But the drugs' sticker price--close to $100,000--has meant that very few patients who could benefit from them can access them. This Article describes an approach, available under existing law, to bring about transformative reductions in the prices of these medicines, at least for federal programs and possibly beyond. Under 28 U.S.C. § 1498, the U.S. government can buy generic versions of these medicines at less than 1% of their list price plus a reasonable royalty. This power has received almost no academic attention, despite the fact that it is regularly used by the government in other sectors, including defense. Indeed, though it has now been forgotten, the federal government relied on this provision numerous times to procure cheaper generic drugs in the 1960s. We recover this history and show how § 1498 can once again be used to increase access to life-saving medicines, addressing several important interpretive questions about the application of the provision along the way. We also offer the first sustained efficiency defense of this approach. This power, we show, can be analogized to the eminent domain power over land and similarly justified as a means to address hold out problems. We show that courts or agencies can fashion damages remedies that provide robust returns to investment, and so protect dynamic incentives while permitting radical improvements in static efficiency. Our remedy involves some risk, as do all policy innovations. But the status quo is so deeply dysfunctional--with millions of Americans unable to benefit from medicines that could halt the spread of a major disease--that the case for action is overwhelming., TABLE OF CONTENTS I. INTRODUCTION II. THE DRUG PRICING TRAP A. Rising Drug Prices B. Narrowing Drug Access: The Case of Hepatitis C III. THE THEORETICAL CASE FOR GOVERNMENT USE [...]

The phannaceutical industry is among the most politically powerful business sectors in the United States today. This article describes how this industry has successfully entrenched its power, with attention to four sources of power: property power. vertical power over politics, ideational power, and material power. Attempts to reform the industry must grapple with these forms of power, which are not easily separated and which, in the current environment, tend to reinforce one another. [ABSTRACT FROM AUTHOR]

Rising inequality and increasing concentration of corporate power have brought renewed attention to questions of political economy, and to how law helps to construct private power and encase it from democratic rearrangement. This Article brings a political economy perspective to the law of commercial secrets, to show that changes in the scope and justification for trade secret law, operating in a context of rising importance of data and information, have set this law on a collision course with our democracy. An area of law that was once understood as focused on fair competition and commercial morality has been retheorized as a kind of "intellectual property," following prevailing neoliberal arguments about the economics of information. Earlier limits on the scope of the law have been dissolved, so that companies today can claim that almost any confidential corporate information is a trade secret. The law has also been constitutionalized, so that a legislature disclosing corporate information -- from the ingredients in cigarettes to the price of a drug -- now face powerful challenges from corporations on the basis of the Takings Clause. Some of the most basic functions of the modern regulatory state, including many mandated disclosures about commercial products to the public, would not have been possible if this view had reigned in earlier decades. Unsurprisingly, it did not. Several Supreme Court cases that have largely been forgotten show that courts even at the height of laissez faire were clear about the categorical priority of the public, and rejected trade secret claims when they conflicted with the public's right to know. These cases, and earlier logics of trade secrecy that see it as an expression of values of fair competition and commercial morality, together form what I call the "public history of trade secrets." Recalling this history can help us to defend a more democratic relation between the political and the economic in our age of informational capitalism. These cases also point to a clear legal principle that would, if recovered, reshape what legislatures and regulators are able to reveal to the public: The disclosure of corporate secrets can be made a condition of participation in markets whenever the information helps illuminate the nature of a product or service. Recognizing this would enable vastly more public insight into companies and their products -- for example, enabling states to mandate disclosure of the algorithms that shape our social media feeds, and the secret data companies hold about the risks and benefits of consumer products. [ABSTRACT FROM AUTHOR]

On March 10, 2021, our journal partnered with the Engelberg Center on Innovation Law and Policy to host a symposium addressing the role and impact of U.S. innovation policy on access to medicine. Our 2021 Symposium Issue--Loturne 11, Issue 1--captures that event. The following article represents the second of four panels. This panel asked, "Should the U.S. government actively assert its own patents?" The panel was moderated by Christopher Morten, Deputy Director of NYU Law's Technology Law & Policy Clinic. The panelists included Barry Datlof, Chief of Business Development and Commercialization in the Office of Medical Technology Transfer at the U.S. Army Medical Research and Development Command, Professor Amy Kapczynski of Yale Law School, Donna Meuth, Associate General Counsel and Lead Attorney of the U.S. Intellectual Property Department of Eisai, and Zain Rizvi, a policy researcher at Public Citizen who focuses on pharmaceutical innovation and access to medicines. [ABSTRACT FROM AUTHOR]

This article analyzes the spread of intellectual property in trade agreements. We explain how the integration of intellectual property with international trade rules led to the globalization of pharmaceutical patenting, and then how additional provisions related to pharmaceutical products have been introduced by regional and bilateral trade agreements. We describe the additional 'TRIPS-Plus' rules contained in recent trade agreements, which go beyond the requirements of the World Trade Organization's TRIPS Agreement, and explain the potential challenges that they may create for developing countries. We draw attention to the conceptual and methodological challenges of assessing the effects of patent provisions in trade agreements on prices and access to drugs, with particular emphasis on the importance of timing. Depending on when countries began allowing drugs to be patented, TRIPS-Plus provisions have different effects; and when pharmaceutical patenting has been in place for more countries for more time, the effects of TRIPS-Plus provisions will change again. [ABSTRACT FROM AUTHOR]