Archive for the ‘Political Economy’ Category
posted by Frank Pasquale
The LSE has a consistently illuminating podcast series, but Nick Couldry’s recent lecture really raised the bar. He seamlessly integrates cutting edge media theory into a comprehensive critique of social media’s role in shaping events for us. I was also happy to hear him praise the work of two American scholars I particularly admire: former Co-Op guest blogger Joseph Turow (whose Daily You was described as one of the most influential books of the past decade in media studies), and Julie Cohen (whose Configuring the Networked Self was featured in a symposium here).
I plan on posting some excerpts if I can find a transcript, or a published version of the talk. In the meantime, some more brilliant thoughts on social media, this time from Ian Bogost:
For those of us lucky enough to be employed, we’re really hyperemployed—committed to our usual jobs and many other jobs as well. . . . Hyperemployment offers a subtly different way to characterize all the tiny effort we contribute to Facebook and Instagram and the like. It’s not just that we’ve been duped into contributing free value to technology companies (although that’s also true), but that we’ve tacitly agreed to work unpaid jobs for all these companies. . . . We do tiny bits of work for Google, for Tumblr, for Twitter, all day and every day.
Today, everyone’s a hustler. But now we’re not even just hustling for ourselves or our bosses, but for so many other, unseen bosses. For accounts payable and for marketing; for the Girl Scouts and the Youth Choir; for Facebook and for Google; for our friends via their Kickstarters and their Etsy shops; for Twitter, which just converted years of tiny, aggregated work acts into $78 of fungible value per user.
posted by Frank Pasquale
The reader of Talent Wants to be Free effectively gets two books for the price of one. As one of the top legal scholars on the intersection of employment and intellectual property law, Prof. Lobel skillfully describes key concepts and disputes in both areas. Lobel has distilled years of rigorous, careful legal analysis into a series of narratives, theories, and key concepts. Lobel brings legal ideas to life, dramatizing the workplace tensions between loyalty and commitment, control and creativity, better than any work I’ve encountered over the past decade. Her enthusiasm for the subject matter animates the work throughout, making the book a joy to read. Most of the other participants in this symposium have already commented on how successful this aspect of the book is, so I won’t belabor their points.
Talent Want to Be Free also functions as a second kind of book: a management guide. The ending of the first chapter sets up this project, proposing to advise corporate leaders on how to “meet the challenge” of keeping the best performers from leaving, and how “to react when, inevitably, some of these most talented people become competitors” (26). This is a work not only destined for law schools, but also for business schools: for captains of industry eager for new strategies to deploy in the great game of luring and keeping “talent.” Reversing Machiavelli’s famous prescription, Lobel advises the Princes of modern business that it is better to be loved than feared. They should celebrate mobile workers, and should not seek to bind their top employees with burdensome noncompete clauses. Drawing on the work of social scientists like AnnaLee Saxenian (68), Lobel argues that an ecology of innovation depends on workers’ ability to freely move to where their talents are best appreciated.
For Lobel, many restrictions on the free flow of human capital are becoming just as much of a threat to economic prosperity as excess copyright, patent, and trademark protection. Both sets of laws waste resources combating the free flow of information. A firm that trains its workers may want to require them to stay for several years, to recoup its investment (28-29). But Lobel exposes the costs of such a strategy: human capital controls “restrict careers and connections that are born between people” (32). They can also hurt the development of a local talent pool that could, in all likelihood, redound to the benefit of the would-be controlling firm. Trapped in their firms by rigid Massachusetts’ custom and law, Route 128′s talent tended to stagnate. California refused to enforce noncompete clauses, encouraging its knowledge workers to find the firms best able to use their skills.
I have little doubt that Lobel’s book will be assigned in B-schools from Stanford to Wharton. She tells a consistently positive, upbeat story about management techniques to fraternize the incompatibles of personal fulfillment, profit maximization, and regional advantage. But for every normative term that animates her analysis (labor mobility, freedom of contract, innovation, creative or constructive destruction) there is a shadow term (precarity, exploitation, disruption, waste) that goes unexplored. I want to surface a few of these terms, and explore the degree to which they limit the scope or force of Lobel’s message. My worry is that managers will be receptive to the book not because they want talent to be free in the sense of “free speech,” but rather, in the sense of “free beer:” interchangeable cog(nitive unit)s desperately pitching themselves on MTurk and TaskRabbit.
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November 13, 2013 at 9:59 am Posted in: Book Reviews, Corporate Law, Employment Law, Intellectual Property, Philosophy of Social Science, Political Economy, Sociology of Law, Symposium (Talent Wants to be Free) Print This Post No Comments
posted by Deven Desai
This week Concurring Opinions is hosting a symposium on Professor Orly Lobel’s book, Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding. In simplest terms, Professor Lobel takes on some thorny problems in innovation policy debates including whether to lock down talent and ideas or to embrace the movement of people and knowledge. Though these tensions seem easy to understand, the natural desire to keep what one has means arguments to tie up whatever seems to be giving one an advantage creates larger debates about optimal control and outcomes. Professor Lobel’s work tangles with these core ideas and more.
Professor Lobel is leading thinker on the intersection of employment law, intellectual property law, regulatory and administrative law, torts, behavioral economics, health policy, consumer law and trade secrets as they relate to innovation. She is the Don Weckstein Professor of Labor and Employment Law at University of San Diego School of Law and holds an SJD and LLM fro Harvard as well as an LLB from Tel Aviv University. She is a member of the American Law Institute and the recipient of research grants from the Robert Wood Johnson Foundation, the American Bar Association litigation Fund, the Searle-Kauffman Fellowship, the Southern California Innovation Project, and Netspar, University of Tilburg. We are honored to have her join us for the symposium as our great list of guest authors engage with her book.
Our line-up of authors include Matt Bodie, Anupam Chander, Danielle Citron, Catherine Fisk, Vic Fleischer, Brett Frischmann, Shubha Ghosh, Ron Gilson, Peter Lee, and Frank Pasquale. We look forward to everyone’s contributions.
posted by Paul Berman
I remember back in 2003, Anupam Chander and I both took part in a cyberlaw retreat on Cape Cod sponsored by Harvard Law School’s Berkman Center for Internet and Society. Most of the professors assembled at the retreat were concerned with how to “solve” the problems that local regulation of internet activity might pose. In contrast, Anupam Chander and I repeatedly made the case that this was not a problem to be solved, but an inevitable expression of cultural diversity. Further, we argued that there might even be some benefits that could accrue from such legal pluralism, properly managed.
We have been fellow travellers ever since, and I am very pleased to see Anupam’s project finally come to fruition in this lively and agile book. As befits a broadly synthetic work about the electronic silk road, Anupam stiches together an impressive array of examples that convincingly demonstrate the importance of the global trade in services. In addition, turning from the descriptive to the normative, he lays out principles that might undergird a governance regime for this cross-border activity that leaves open the possibility for multiple competing normative voices.
Anupam’s approach is one that is consonant with the conception of global legal pluralism I have been pursuing for over a decade, and so I have few objections to his account. Quite rightly, Anupam steers a useful middle ground on issues of so-called extraterritorial regulation. He neither says that local regulation should always trump all other possible normative authorities (as sovereigntist territorialists often do), nor does he call for a full universal harmonization scheme. Instead, he adopts a pithy aphorism: “harmonize where possible and glocalize where necessary.” The key here is that a decisionmaker in a cross-border dispute should always ask whether it is possible to defer to another legal regime in the interests of a harmonious interlocking transnational legal system. Even asking such a question can, over time, inculcate habits of mind that cause decision-makers to be restrained about reflexively applying their own law in all circumstances. At the same time, Anupam recognizes that there will be instances when such deference is impossible and local populations will feel the need to impose local norms on cross-border activity. In such cases, he asks global services companies to “glocalize”: customize their global services product to conform to the law of various localities.
My guess is that such an approach will be workable in many cases, and so Anupam’s argument is an advance. It is also usefully pluralist in that it leaves space for multiple communities—local international, and transnational—to assert normative authority. This is in marked contrast to an approach that seeks to elide normative difference and tries to impose a single authoritative set of norms. Thus, I fully embrace his project.
I do have two quibbles, however.
posted by Deven Desai
Will we ever be able to go off-grid again? What do we gain and lose if not? These questions came to mind as I was reading Anupam Chander’s Electronic Silk Road. The book is excellent. Indeed, these questions and the rest of this post’s ideas would not have come to mind had he not set out how the Electronic Silk Road operates and might operate. And my questions are perhaps prompted by a good book that addresses much and better still opens the doors to the next questions. Chander makes a strong case for benefits of a modern silk road where trust and trade work together and promote “net-work” which he defines as “information services delivered remotely through electronic communications systems.” This two way world facilitates labor shifted to Asia but also Google and Facebook spanning the globe with their services. His plea for new laws to address this change in trade makes sense. Our world of goods is fading to a world of digital things. Yet I wonder whether this new rule of trade maps to all the wonders we may want.
There may be unintentional irony here. Chapter One epigraph quotes Keynes “What an extraordinary episode in the economic progress of man that age was which came to an end in August, 1914!” Does trade stop war or at least make countries less likely to war against each other? Maybe. To get there Chander points out that, “the characteristics that permit net-work trade might be deployed to create a robust infrastructure for such trade: real-time information transfer, low information and other transactions costs, the ability of individuals around the world to collaborate, and electronic identification.” But the same systems that may promote trade can lead to greater surveillance and repression.
In other words, the recent spying amongst countries may be a good thing. I fear greater coordination amongst countries rather than friction. Chander calls this issue “Stalinization—the imposition of the world’s most repressive rules on cyberspace, in aggregated form.” He acknowledges this point at p. 197. Nonetheless this greater connection and improved grid may be inescapable. The idea that local laws must balance global over-reach does not appear to address what happens when the big boys agree. The electronic silk road thus seems to kill the romance of the silk road.
The Silk Road evokes adventure, the ability to test, change identities, and yet somehow trade worked. Failure on the Silk Road or even mistakes or cheating could be hidden by moving from the Road to some other country. In that sense, a modern system of trade on a global scale seems to defeat the room for play that Julie Cohen has described in Configuring the Networked Self. To where would one go to experiment, reinvent, and rehabilitate? Even with greater freedom to communicate things can go awry. A WTO response may be futile if all agree on bad behavior. Public shaming of corporations may mean little when they are forced to comply. To be clear, I agree with much of what Chander offers and have hope that the mitigation he offers will take it root. At bottom it may be a faith that discourse and debate defeats evil in all forms. Part of me thinks this idea is true. Part wonders whether we have come that far from the days leading up to World War I or II. If not, tighter understanding and trade may do less than both Chander and I hope. Then again Chander may be setting us up for the next step in his ideas. I certainly hope so.
posted by Deven Desai
This week, a great group will be blogging about Professor Anupam Chander’s book, The Electronic Silk Road: How the Web Binds the World Together in Commerce. Professor Chander is a leading scholar on globalization and digitization. He is Director of the California International Law Center and Martin Luther King, Jr. Hall Research Scholar at UC Davis. He has been a visiting professor at Yale Law School, the University of Chicago Law School, Stanford Law School, and Cornell Law School. He is also a dear friend. Nonetheless, it is time for us to do what we hope to do well, and if lucky, our friends do for us. That is, it is time to press Professor Chander about his work as it tries to show us how the new Silk Road operates, what it promises, what is yields, and what it threatens. Work and services are now blending, if not blended. Old rules for trade struggle to adapt to new rules for information. Where will we go from here? Join Professor Chander and our panelists including Paul Berman, Miriam Cherry, Graeme Dinwoodie, Nicklas Lundblad, Frank Pasquale, Pierluigi Perri, Adam Thierer, Haochen Sun, Fred Tung, and of course Danielle Citron and me for the fun this week.
Announcing Symposium on Orly Lobel’s Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding
posted by Deven Desai
Think you have enough to read? Think again! I am honored to announce that Concurring Opinions will host a symposium on Orly Lobel’s book, Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding. The event will run from Monday, November 11 to Friday, November 15. I came to know Professor Lobel’s work as I shared some of my thoughts on intellectual property, property theory, and technologically mediated creation in her seminar, Work, Welfare, and Justice, in 2008. I was thinking about who owns your email? What about work place creation? Who owns what you come up with at work? Does it matter whether you used company technology to create and learn? Professor Lobel was digging into related questions, and it has been a blast seeing her run with them. Now we have the pleasure of her book. The accolades have been coming in from academics in law and other fields as well as the business world. Business Week, Fortune, and Harvard Business Review have run articles by Professor Lobel that draw on the insights from the book.
Professor Lobel argues that as we move deeper into a world driven by human capital and talent is in increasing demand, we have to understand that a lock-down approach to innovation is a losing strategy. Nonetheless:
Many companies embrace a control mentality—relying more on patents, copyright, branding, espionage, and aggressive restrictions of their own talent and secrets than on creative energies that are waiting to be unleashed.
Unlocking talent, setting it free as she puts it, sets up a system where everyone wins. Will our discussants or you agree? I think so, but I am sure there will be new ideas and challenges during the event. Our panelists include Professor Lobel as well as:
October 23, 2013 at 4:06 pm Posted in: Behavioral Law and Economics, Intellectual Property, Political Economy, Property Law, Symposium (Talent Wants to be Free), Technology, Trade Print This Post No Comments
posted by Frank Pasquale
The purpose of the Golden Goose Award is to demonstrate the human and economic benefits of federally funded research by highlighting examples of seemingly obscure or unusual studies that have led to major breakthroughs and have had a significant impact on society. Such breakthroughs may include development of life-saving medicines and treatments; game-changing social and behavioral insights; and major technological advances related to national security, energy, the environment, communications, and public health.
posted by Deven Desai
Danielle and I are happy to announce that next week, Concurring Opinions will host an online symposium on Professor Anupam Chander’s The Electronic Silk Road: How the Web Binds the World Together in Commerce. Professor Chander is a professor at U.C. Davis’s King Hall School of Law. Senators, academics, trade representatives, and pundits laud the book for its clarity and the argument Professor Chander makes. He examines how the law can facilitate commerce by reducing trade barriers but argues that consumer interests need not be sacrificed:
On the ancient Silk Road, treasure-laden caravans made their arduous way through deserts and mountain passes, establishing trade between Asia and the civilizations of Europe and the Mediterranean. Today’s electronic Silk Roads ferry information across continents, enabling individuals and corporations anywhere to provide or receive services without obtaining a visa. But the legal infrastructure for such trade is yet rudimentary and uncertain. If an event in cyberspace occurs at once everywhere and nowhere, what law applies? How can consumers be protected when engaging with companies across the world?
But will the book hold up under our panel’s scrutiny? I think so but only after some probing and dialogue.
Our Panelists include Professor Chander as well as:
And of course
Danielle Citron and I will be there too.
October 21, 2013 at 3:40 pm Posted in: Cyberlaw, DRM, Innovation, Intellectual Property, Political Economy, Privacy, Symposium (The Electronic Silk Road), Technology, Trade, Web 2.0 Print This Post One Comment
posted by Frank Pasquale
If you asked Ted Cruz or Jim DeMint who was the guiding spirit of their government shutdown, they’d probably mention Friedrich von Hayek. The Nobel Prize winning economist warned the world that “socialism” would put citizens on a “road to serfdom.” For the Tea Party, PPACA is a horror, perhaps even a new form of slavery, a threat to liberty even darker than the feudal past Hayek evoked.
But there is another figure just as important to current neoliberal thought as Hayek. Carl Schmitt provided jurisprudential theories of “the emergency” and “the exception” that highlighted the best opportunities for rapid redistribution of wealth upwards. In Never Let a Serious Crisis Go to Waste, Philip Mirowski explains how neoliberal thought, far from advocating a shrinking of the state, in fact sparks a redirection and intensification of its energies. As he puts it, “A primary function of the neoliberal project is to redefine the shape and the function of the state, not to destroy it” (56). Moreover, the “strong state was necessary to neutralize what [Hayek] considered to be the pathologies of democracy” (84). Even a temporary dictatorship can work in a pinch.
A shutdown is a state of exception when the government gets to do things it normally can’t do, like close the Environmental Protection Agency, de-fund WIC, close the national parks, send a lot of government employees home [in what is in many ways a lock-out], and all sorts of other stuff. A shutdown is a moment in which a choice gets made about which laws to obey and which laws to ignore, when the government gets to decide that some people are essential and some people aren’t.
posted by Frank Pasquale
Why is the term “disruption” so popular nowadays? We rarely hear about a new social commitment to guarantee access to housing, health, or education. Instead, elite media features a parade of thinkers keen on “disrupting” old institutions. Freddie DeBoer has one perspective on their popularity:
Talk of social contracts is passé in an America obsessed with technocapitalist visions of a prosperous future. The yen for “disruption,” an empty term for empty minds in empty people, makes traditional obstacles like social contracts suspect or downright pernicious. This has led to an embrace of proceduralism by those true believers who want an app economy to be the engine of capitalism. And such people rule the world.
The “disruption” proposed by thought leaders also appeals to those who think of economics as the king of social science, and methodological individualism as the only ontological orientation to rigorous inquiry:
[I]ndividualistic predilections give a cohesiveness and homogeneity to … new ideas and inventions, actively constructing and shaping the digital environment from which [Silicon Valley thought leaders] claim to draw their inspiration. The insistence on “disrupting” our social and environmental lives; the idea that the solutions inspired by and enabled by the Internet mark a clean break from historical patterns, a never-before-seen opportunity – these mean that the only lessons to learn from history are those of previous technological disruptions. The view of society as an institution-free network of autonomous individuals practicing free exchange makes the social sciences, with the exception of economics, irrelevant. What’s left is engineering, neuroscience, an understanding of incentives (in the narrowly utilitarian sense): just right for those whose intellectual predispositions are to algorithms, design, and data structures.
The economy of internet intellectuals encourages endless reworking of algorithmic, design-, and data-based thinking. As Henry Farrell has observed, “While making your way up the hierarchy [of internet intellectuals], you are encouraged to buff the rough patches from your presentation again and again, sanding it down to a beautifully polished surface, which all too often does no more than reflect your audience’s preconceptions back at them.” The smiling faces at TED talks want to hear tried-and-true methods and 17-minute solutions. Woe to the skeptic who counsels there may not be any.
In the hands of a Cory Doctorow, we can see a disruption ethic of public spirited dissent. Unfortunately, the “disruptions” pursued by Silicon Valley giants (and their well-heeled consultants) often have little to do with challenging the biggest power centers in society. And why would they? As Farrell notes,
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posted by Arnold Kling
I reviewed Mark Weiner’s Rule of the Clan from a libertarian perspective.
Libertarians are impressed by order that emerges in an unplanned, decentralized way. No one knows how to make a pencil, and yet through the decentralized process of market trading, pencils are made readily available. If making a pencil does not require a central planner, then why do we need a strong central government?
The Hobbesian answer is that without a strong central government, we would have the “war of all against all.” The libertarian response echoes Karl Kraus. Kraus famously said something to the effect that “psychoanalysis is the disease which it purports to cure.” Libertarians point out that the state, which purports to be the cure for the war of all against all, is the leading cause of violent death and incarceration.
Weiner’s book contains a message for libertarians that is decidedly mixed. He argues, on the one hand, that there is a decentralized order that is an alternative to a strong central government. On the other hand, this order is not at all libertarian.
The decentralized order that Weiner describes is the rule of the clan. It is a cultural system in which individuals lack what we think of as liberty. Instead, the individual is subordinate to the extended family.
Libertarians have been known to use medieval Iceland as an example proving that a strong central government is not needed to maintain order. Weiner describes medieval Iceland as an example of the clan-based system of order, but from his depiction it is clearly not a model of a libertarian society.
Weiner uses legal historian Henry Maine’s distinction between a Society of Status and a Society of Contract. Rule of the clan embodies a society of status. Libertarians want to see a society of contract.
Libertarians see the “contract theory” of existing states as a fiction. I never signed an agreement giving authority to the people and institutions of my federal, state, and local government. Instead, those people and institutions have decided unilaterally what authority they can exercise over me.
Is it possible to extend the society of contract, giving less asymmetric power to the people and institutions that constitute the government? Libertarians believes that the answer is “yes.” However, Weiner claims that wherever the people and institutions of government lack strong asymmetric power, what we observe is the rule of the clan. Libertarians are faced with the burden of showing that while he may be correct in describing the decentralized orders that we have observed, there may yet emerge a more decentralized order that does not degenerate into the rule of the clan.
posted by Frank Pasquale
A few thoughts in the wake of Zimmerman verdict (and related matters):
1) The New Yorker’s Amy Davidson stated last night, “I still don’t understand what Trayvon Martin was supposed to do” once he knew he was menaced. Gary Younge similarly asked, “What version of events is there for that night in which Martin gets away with his life?”
Cord Jefferson, in a way, provides a practical response to that question:
To stay alive and out of jail, brown and black kids learn to cope. They learn to say, “Sorry, sir,” for having sandwiches in the wrong parking lot. They learn, as LeVar Burton has, to remove their hats and sunglasses and put their hands up when police pull them over. They learn to tolerate the indignity of strange, drunken men approaching them and calling them and their loved ones a bunch of [n______]. They learn that even if you’re willing to punch a harasser and face the consequences, there’s always a chance a police officer will come to arrest you, put you face down on the ground, and then shoot you execution style. Maybe the cop who shoots you will only get two years in jail, because it was all a big misunderstanding. You see, he meant to be shooting you in the back with his taser.
Yahdon Israel writes about similar coping mechanisms in Manhattan, and the fallback tactic of avoidance. He notes that, “Although Columbia [University] is in Harlem, power wills that there is no Harlem in Columbia. Rather than walk through, the people of Harlem are more comfortable with walking around Columbia to get to the other side because they know where they don’t belong.”
posted by Frank Pasquale
[T]he overhead question has a number of flaws. A few of the easy ones to talk about and describe are, first, it operates on a mistaken theory of waste. So, a [soup kitchen] tells you $.90 of your donation goes to the cause and you think: Well, that’s great, now I know that they don’t waste any money. But you don’t know that at all. How do you know they are not wasting the $.90 that’s being spent on the cause? That’s where all the money goes; that’s where the largest opportunity for waste is. Related to that, it tells you nothing about the quality of services. So, that soup kitchen can tell you $.90 of every donation goes to the cause and you’ll never learn that the soup is rancid. . . .
Next, the percentage of your donation that goes to the cause depends entirely on how the charity defines the cause. So, the more broadly they define the cause, the higher the percentage they can tell you is going to the cause. It actually operates on a false theory of transparency as well, because unless you know the underlying accounting and definitions of the cause, there is no transparency in that simple articulation of an overhead percentage. Worse, this demand the charities keep overhead below prevents them from spending money on the overhead things they have to spend on in order to grow. And that’s how we institutionalize the miniaturization of these organizations.
Pallotta offers many provocative thoughts on how success is measured in the nonprofit sector.
posted by Frank Pasquale
Fables have been in the politico-economic air of late. The FT’s Martin Wolf considered the locust part of a master metaphor for the future of the global economy. He concluded that “the financial crisis was the product of an unstable interaction between ants (excess savers), grasshoppers (excess borrowers) and locusts (the financial sector that intermediated between the two).”
Now Geoff Mulgan has entered the fray with the excellent book The Locust and the Bee: Predators and Creators in Capitalism’s Future. As Mulgan observes,
If you want to make money, you can choose between two fundamentally different strategies. One is to create genuinely new value by bringing resources together in ways that serve people’s wants and needs. The other is to seize value through predation, taking resources, money, or time from others, whether they like it or not.
posted by Frank Pasquale
Many thanks to Danielle for mentioning Barry Friedman and Dahlia Lithwick’s article “What’s Left? Have progressives abandoned every cause save gay marriage?” They argue:
[S]omehow, somewhere along the line, to be progressive … stopped meaning a commitment to help the poor. The central problems that defined the left from the early history of the Progressive movement through the Great Society are as urgent today as they ever were: Economic fairness; a war on poverty, meaningful education reform, voting rights, workers’ rights, racial justice, women’s rights, equal access to child care and health care. But while none of these social ills has been remedied in modern America (and many are now worse) all that talk about “welfare queens” seems to have scared folks off. Face it: There is not, and never has been, anything sexy about the minimum wage.
You certainly won’t find very egalitarian views expressed at a $10,000-a-plate Democratic Party fundraiser, or among the millionaire anchors of cable networks. But I think Friedman/Lithwick are looking for lefties in all the wrong places. Sure, the mainstream media isn’t going to take the concerns of workers seriously. It’s going to feature a lot of fauxgressives instead. But take a look at Sarah Jaffe and Josh Eidelson’s excellent podcast, Belabored. Both also do serious reporting on recent strikes and other labor actions led by people who, increasingly, have little left to lose. If you’re looking for direct legal interventions, check out the Center for Progressive Reform. They’ve been defending labor and environmental regulation for years.
As for welfare and poverty coverage: both Mother Jones and Alternet are outstanding. Sam Pizzigati of Too Much has doggedly exposed inequality. He’s also chronicled past actions (and present movements) to remedy grotesque disparities. There are many members of Congress who supported the “People’s Budget,” which tries to preserve health care and education funding.
Speaking of education: the dialogue about university life on twitter puts to shame any stuffy salon you’ll find on the New York Times’s “Room for Debate” page. Check out @reclaimuc, @zunguzungu, @tressiemcphd, @jhrees, @gerrycanavan, among many others. I think the single best magazine piece on the crisis in higher education today was written by two prolific tweeters, Aaron Bady and Mike Konczal. These are very exciting thinkers, thinking far more holistically and humanely than nearly anyone you’ll see featured in mainstream media.
Finally, in terms of progressive views of technology, Twitter is a godsend. As I completed an article on the role of algorithms in finance the past semester, I found inspiration in items shared by @dgolumbia, @evgenymorozov, @marginalutility, & @interfluidity. There are also communities I follow on health care and IP. Sick of hearing about financialization as a cure for pharma’s innovation fatigue? Follow @DrRimmer, or go whole hog for @JacobinMag’s feature on socializing pharma.
I don’t want to just give a list of names, but I will say this: no one should lament reformers “missing in action”. Virtual communities dedicated to protecting the interests of the disadvantaged exist, and can find each other now more easily than ever. A progressive press would do better to cover the existing left than to lament the failings of liberals.
posted by Deven Desai
We need more outlets to challenge the way things run. Challenging corporations is difficult, necessary, and proper. Someone in San Diego tried to do that. He is losing his case. It turns out that if you scribble anti-bank messages, you could face 13 years in jail. The medium: washable children’s chalk, not spray paint, on the sidewalk in front of banks. The bank: Bank of America. Now, you might think the First Amendment would be an issue here; it’s not. According the news report, “a judge had opted to prevent the defendant’s attorney from ‘mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,’ and the defendant must now stand trial on 13 counts of vandalism.” The defendant was saying other banks were better banks. Bank of America did not like it, claimed it cost $6,000 to clean up the chalk, and apparently used its influence to have the city gang unit investigate and hand the case to the attorney’s office. Given that this defendant may not be allowed to engage in this speech, because of anti-graffiti and, my bet, property laws, all that may be left is the Web. I think offline mediums matter and should be protected. The Web is an alternative, not a substitute. But even on the Web a protester will have problems.
As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, corporate power to speak has gone up. Corporate power to limit speech has not. A corporate public figure doctrine would allow someone to use a corporation’s logo and name to challenge to corporation on public issues. A corporation’s word mark is its given name; its logo, its face. Just as we would not limit the ability to question and identify human public figures for speech, we should not do so for corporate public figures. A foundational commitment of free speech law, perhaps the foundational commitment, is that public figures don’t and can’t own their reputations. Yet, through trademark and commercial speech doctrines corporations have powerful control over their reputations. If corporations are people for free speech purposes, as a constitutional matter, their control over their reputations can be no greater than the control other public figures have. Corporations cannot have it both ways. Corporations want and receive many of the legal rights natural persons receive. They should be subject to the same limits as other powerful, public figures.
HT: Fred von Lohmann for noting the story on Facebook.
PS. I am not saying corporations should be challenged, because they are corporations. That is silly. In that sense, I would challenge those who challenge, but that’s me.
July 1, 2013 at 1:13 pm Tags: citizens united, dilution, First Amendment, free sp, public figure, trademark Posted in: Constitutional Law, First Amendment, Intellectual Property, Political Economy, Politics, Technology, Web 2.0 Print This Post 20 Comments
posted by Danielle Citron
I could not have timed my chat with Marvin Kalb better. On Sunday, before talking about cyber hate for the U.S. Holocaust Museum’s 20th Anniversary Tour in Chicago, Kalb and I discussed his most recent book, The Road to War: Presidential Commitments Honored and Betrayed (Brookings Institution Press 2013). The timing was auspicious not just because the book had come out days before but because at least 40% of the nation was reeling from learning about the most recent abuse of Executive power: the NSA’s PRISM program and leaked FISA court Verizon order.
Before I recount some of the highlights of our conversation, I wanted to begin with a wonderful and incredibly apt description of Kalb written by a UPI reporter:
[Kalb] is the senior statesman of U.S. media. Tall, handsome, brilliant, unfailingly courteous, Marvin Kalb looks and acts more like a senior statesman than the chief diplomatic correspondent he was for CBS News and NBC over 30 years when these networks cared about world news. Now these media organizations still bill themselves as world news networks but, most nights, forget about the rest of the world.
Following his prize-studded reportorial career, Kalb became the first director of journalism’s school of higher learning at Harvard — the Joan Shorenstein Center on the Press, Politics and Public Policy. Now, still the profession’s senior statesman, he runs the center’s Washington office and hosts “The Kalb Report.” The author of two best-selling novels and a book titled, “One Scandalous Story: Clinton, Lewinsky and 13 days That Transformed American Journalism,” Kalb’s 13th book — his best — excoriates Congress for relinquishing its constitutional obligation to declare war.
The U.S. News and World Report’s Jamie Stiehm describes Kalb’s new book as “an elegant synthesis of how easy, too easy, it has become for an American president, any American president, to go to war” with Congress “ceding its rightful role in declaring war and tends to go along with the man in the White House.” Kalb’s book argues that so much power should not be concentrated in the President.
Here are some highlights from our conversation:
DC: Why has it been so easy for the Executive Branch to ignore the core constitutional guarantee that Congress declare war?
MK: We have a system of law undergirding Presidential authority to go to war — Congressional declaration of War and the power of the purse — yet it has been consistently ceded to the President. When I covered Vietnam in 1968, we had 500,000 troops on the ground. Who gave the President the authority to do so? I am a great believer of law, but if it is ignored with impunity, to whom do we turn?
DC: How did we get to that state of affairs–the President doing what he wants without check? Are things much different in light of recent revelations of our unsanctioned domestic intelligence apparatus?
MK: What we are witnessing this week stands as a confirmation of what we have ben seeing–unchecked Presidential power in the name of war time. In the Korea and Vietnam wars, one President after another made unchecked decisions and no one blew the whistle, most significantly Congress. Congress was successfully pressured to cede its power to the Executive Branch. For instance, only two Senators voted “no” for the Gulf of Tonkin resolution. When one of those senators, Senator Morse, saw President Johnson, the President put his arm around the Senator and said “Wayne, you are a good American. We do not want to hurt the troops.” Johnson wielded his power through persuasion and it worked–Congressional resistance was vanishingly small.
DC: What do you think of this week’s revelations about PRISM and the Verizon order?
MK: In important ways, I thought that we beat Big Brother when we prevailed in the Cold War. With the indiscriminate collection and analysis of all Verizon users’ telephony metadata (including who we called, where we were, and the inevitable revelation of sensitive information given the answer to the “who” question), we have become what we most fear–executive branch conducting surveillance over ordinary citizens in increasingly intrusive ways. Read the rest of this post »
posted by Jay Kesten
My thanks to Danielle and her co-bloggers for inviting me to share some of my thoughts. This is my first foray into blogging, and I’m thrilled to join you for awhile. I’d like to start by discussing a current project, which examines the internal governance of corporate political activity. Comments, suggestions and critiques are most welcome.
Corporate political activity has long been an exceptionally contentious matter of public policy. It also raises a hard and important question of corporate law: assuming corporations can and will engage in political activity, who decides when they will speak and what they will say? In several cases, the Supreme Court has provided a relatively clear, albeit under-developed, answer: ”[u]ltimately, shareholders may decide, through the procedures of corporate democracy, whether their corporation should engage in debate on public issues.” (First Nat’l Bank of Boston v. Bellotti, cited with approval in Citizens United v. FEC).
This corporate law aspect of the decision has attracted substantial criticism alongside widespread calls for major reforms to corporate and securities laws. Some argue that the Supreme Court misunderstands the reality of modern corporate law, insofar as shareholders have little practical ability to constrain managerial conduct. Others question why political decisions should be made by either shareholders or managers, rather than some broader group of corporate stakeholders. A third group claims that political activity is just another corporate decision protected by the business judgment rule. Thus, empowering shareholders in this regard would improperly encroach on the board’s plenary decision-making authority.
Yet, despite these concerns, there may be pragmatic and normative merit to the Supreme Court’s approach. In a current paper – “Democratizing Corporate Political Activity” – I present a case for shareholder regulation of corporate political activity through their power to enact bylaws. I’ll describe the argument in more detail in subsequent posts, but, briefly, I present three normative justifications for this governance structure. First, it may mitigate the unusual and potentially substantial agency costs arising from manager-directed corporate political activity. Second, it may increase social welfare by: (i) reducing deadweight losses and transaction costs associated with rent-seeking; and (ii) making corporations less vulnerable to political extortion. Third, if corporate speech can shape our society’s distributional rules, corporate law should not interpose an additional representative filter in the democratic process. That is, we should not assume that investors – merely by purchasing stock in a public company, often through an intermediary such as a mutual fund – grant managers the unilateral authority to engage in political activity on their behalf.
With that said, I should be clear upfront that there are important challenges and objections to each of these arguments. I will describe the main concerns as I proceed.
The next post will lay out the Supreme Court’s vision of corporate political activity, and explain why the shareholder bylaw power best fits the Court’s description of shareholder democracy in this context.
posted by Frank Pasquale
An emerging, “solutionist” narrative about drones goes something like this:
Yes, we should be very worried about government misuse of drones at home and abroad. But the answer is not to ban, or even blame, the technology itself. Rather, we need to spread the technology among more people. Worried that the government will spy on you? Get your own drones to watch the watchers. Fearful of malevolent drones? Develop your own protective force. The answer is more technology, not regulation of particular technologies.
I’d like to believe that’s true, if only because technology develops so quickly, and government seems paralyzed by comparison. But I think it’s a naive position. It manages to understate both the threats posed by drones, and the governance challenges they precipitate.
Read the rest of this post »