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Gordon Hull
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By Gordon Hull Last time, I introduced the exchange between Mark Lemley and Robert Merges on IP theory, and made the initial case that Lemley is essentially arguing for the theoretical primacy of neoliberal biopower in intellectual property. Merges, as will hopefully become evident below, is more interested in grounding... Continue reading
By Gordon Hull A couple of years ago, Mark Lemley, one of the most influential and prolific of intellectual property scholars, published his “Faith-Based Intellectual Property,” a manifesto against what he characterizes as non-utilitarian or non-empirical theories of intellectual property. In other words, “participants on both sides of the IP... Continue reading
By Gordon Hull Frank Pasquale and I have a new paper forthcoming in Biosocieties, "Toward a critical theory of corporate wellness." Here is the abstract: In the U.S., “employee wellness” programs are increasingly attached to employer-provided health insurance. These programs attempt to nudge employees, sometimes quite forcefully, into healthy behaviors... Continue reading
By Gordon Hull I have a new paper up on SSRN, "The Subject and Power of Bioethics," which was invited to a forthcoming issue of the Journal of Ethics, Medicine and Public Health. The abstract is: The present paper argues that late work of Michel Foucault is helpful in understanding... Continue reading
by Gordon Hull On Wednesday night, the Trump administration implemented as much of its long promised Muslim Ban as it thought the Supreme Court would allow. Travelers from a list of six countries who did not have a “bona fide” connection or “close familial relationship” to someone in the U.S.... Continue reading
The Supreme Court ruled unanimously today (well, an opinion and a concurrence) that a provision in the Lanham Act banning “disparaging” trademarks violated the First Amendment. In the case in question, an Asian-American musician named Simon Tam had attempted to register his band’s name, “The Slants,” in a clear effort... Continue reading
In another chapter of its ongoing battle with the Federal Circuit (and the second in a week), the Supreme Court (SCOTUS, I will refer to the Federal Circuit as the CAFC) ruled last Tuesday in Impression Products v. Lexmark International that the sale of a patented product “exhausts” the patent-holder’s... Continue reading
Patent law seems like an easy place to talk about biopower. After all, it has been possible to patent life forms for some time now, and large numbers of patents are issued for products that directly affect life, as in the case of pharmaceuticals and other medical innovations. Biopolitical implications... Continue reading
A recent paper by Ermanno Bencivenga in Philosophical Forum argues that it’s “time for philosophy to step into the conversation” (135) about big data, in particular to refute the thesis, which the article identifies in a 2008 piece in Wired, that big data will mean that we no longer need... Continue reading
Foucault reminds us that biopolitics is describes a kind of power structure according to which some will be compelled to live (or have their lives as members of a favored population optimized), while others will be allowed to die. As he puts it, “the ancient right to take life or... Continue reading
I know there’s a lot of material to pick from here, but the following two positions are hard to reconcile with a straight face. Since Trump’s and his surrogates’ big mouths have been used against him before in Court, perhaps some court will see this one. On the one hand,... Continue reading
Apparently Burger King ran an ad that attempted to trigger Google Home by having a Burger King employee say “OK, Google: What is the Whopper burger?” First the ad was up, then it was down, now BK says that it might come back. The ad was supposed to trigger Google... Continue reading
As you probably have heard, in a flurry of activity yesterday, the North Carolina legislature repealed and replaced its omnibus LGBT-hate law, HB 2. The state was clearly moved to act by an NCAA deadline (repeal by Thursday, or no championships until 22) and an AP report earlier in the... Continue reading
Brands are of increasing importance to capitalism. As an insightful book by Franck Cochoy argues, this is part of the logic of commodification, which generates a perpetual demand for product differentiation. At the point that a product becomes a commodity – i.e., at the point that it leaves the bazaar,... Continue reading
A recent paper by Hamid Ekbia presents an interesting Marxian theory of the relation between exploitation and computer networks. The paper is intended as an intervention in to discussions of the accumulation of value in what is now called cognitive capitalism (I’ve attempted to synthesize some of that literature here).... Continue reading
There is a running debate in critical theory circles about the applicability of Marxian analysis to big data specifically, and to an economy dominated by immaterial goods, more generally (I have blogged about this periodically, circling primarily around the concept of primitive accumulation: see here and here). As part of... Continue reading
One question surrounding big data – in addition to well-established worries about privacy and discrimination – that is starting to get attention is how it functions as a mode of capitalist accumulation. There is an emerging literature on capitalist value creation and big data, but a lot of that is... Continue reading
One of the more perplexing things about the Trump presidency is why it exists in the first place: he took office having lost the popular vote by a wide margin, and with one of the smaller electoral college margins in memory. The win also defied virtually all of the pre-election... Continue reading
Amidst the general horror that is Trump’s xenophobic and bigoted executive orders*, and in the executive order attacking sanctuary cities, comes Trump’s attack on the privacy of immigrants (h/t Dennis Crouch at Patently-O). The order stipulates: “Privacy Act. [Federal] Agencies shall, to the extent consistent with applicable law, ensure that... Continue reading
One of the most prominent features of biopolitics is the emergence of administrative law. Created by statutory authority, numerous governmental agencies engage in rulemaking at a very granular level to interpret and apply broad statutory provisions. For example, if a statute says that “banks” are to be regulated in the... Continue reading
UPDATE (12/24). Don't take it from me. The Electoral Integrity Project, which monitors and rates elections internationally, scored North Carolina. It wasn't pretty. A sample from the report, as cited in the linked article: "On the measures of legal framework and voter registration ... on those indicators we rank alongside... Continue reading
I've just uploaded a (relatively minor) revision of my SPEP paper from this fall in Salt Lake City to SSRN. The paper is ""Confessing Preferences: What Foucault’s Government of the Living can tell us about Neoliberalism and Big Data," and the abstract is: Foucault’s 1979-80 Collège de France lectures, On... Continue reading
Developments this week highlight the problems with the neoliberal decision to privatize medicine in the U.S. Certainly the Affordable Care Act (ACA), which entrenches responsibility for access to healthcare to private insurance companies and then attempts to contrive a market for patients to shop between insurance plans as some sort... Continue reading
I'm really sympathetic to that intuition - in part because I did just what you describe: early-voted for Clinton, and then canvassed for her on election day. And I have disliked neoliberalism for as long as I've known what it is. But I also have no difficulty saying that I prefer Clinton's version of it to whatever Trump is (which may turn out to be a worse form of neoilberalism, mixed in with a whole bunch of truly horrendous things). So far, "anybody but Trump" has proven to be right, based on his proposed cabinet appointments. So why do I call that a "preference?" I'm aware that I'm close to a neoliberal declaration of revealed preferences (Joe buys a Honda, so he reveals his preference for Honda over Toyota). A very good critique of that line is that there are too many other factors that might be invisible: he might not be able to afford the Toyota, etc. So we can't really know what the market choice reveals. But I think in this case the other factors are pretty constrained, because in a majoritarian system, any vote increases the chance that one of the (in this case) two candidates will win. A vote for Clinton means she's more likely to win than Trump, and so "anyone but Trump" means "Clinton," and that's tantamount to saying you prefer what Clinton would do to what Trump would do. I'm also inclined to think a vote for Stein increased the chances that Trump would win, and that Stein supporters should have known that after the 2000 debacle. Green vote defenders will say that Clinton should have earned their vote, that they like green policies better, and so on - but will go out of their way to avoid acknowledging that ours is a majoritarian, and not a parliamentary system (where if Green gets 5%, say, they get a seat in parliament, and so it's a perfectly rational vote. I'm citing Stein here because I'm less sure who libertarian voters would draw from). This does leave me vulnerable to a couple of complaints, though, which I'll acknowledge. One is that there were voters who knew almost nothing about Clinton but decided both that "anyone would be better than Trump" and that Clinton was the only other candidate who had a chance to win. I find it a little hard to believe that Clinton would be that unknown to anyone who also knew enough to make the anybody-but-Trump decision, but if such voters existed, I have mis-described them. The other obvious complaint would be that many of the Green voters either (a) think the other candidates are genuinely equivalently bad, or (b) they genuinely don't know enough to know that their vote increases the chance that the most environmentally-unfriendly candidate in memory would win. I don't see how either of those could be true, at least in this election. But I am (again) making an assumption which could be empirically tested, and I could be wrong...
Very quick answer: I'm being Foucault's voice mail here - in Birth of Biopolitics, the basic difference between liberalism and neoliberalism is that the former think markets are natural and the latter think you can make them (Harcourt is good on this too). I take it the basic argument is that markets are good for Hayekian reasons (you efficiently transmit information about price/value without a state apparatus, and so preserve rule of law), combined with the idea that you get better results with competition. So as an individual firm, I want to crush the others - but as an economist, I want firms competing. Either way, if I can tell myself a story according to which the market isn't functioning right, there would be a basis for the state to intervene to create more possibilities of competition. So the conviction that trade deals are bad for American companies because it makes them unable to compete with low-wage foreign companies sounds to the Trumpian ear like a market failure or a market distortion, one that could be remedied by a forceful leveling of the playing field. There is precedent for both this as argument and policy - Ross Perot's campaign against NAFTA as that "great sucking sound" of U.S. jobs going to Mexico, and of course EU agricultural subsidies. I remember debate around NAFTA when it was being signed about how it didn't include any protections for workers in higher wage countries. This was usually put in unfavorable comparison with the EU. I don't know if that's a satisfactory answer, but it's where I am now - the larger issue for me is to reconcile the white nationalism and what appear to still be neoliberal commitments (ex the infrastructure project, which is going to be privatized if he gets his way, and not a public investment, a la the sorts of infrastructure that, say, FDR would want.