Tech Law and Political Economy
by Sebastian Benthall
It has been an intellectually exciting semester at NYU’s Information Law Institute and regular, more open research meeting, the Privacy Research Group. More than ever in my experience, we’ve been developing a clarity about the political economy of technology together. I am especially grateful to my colleagues Aaron Shapiro, Salome Viljoen, and Jake Goldenfein for introducing me to a lot of very enlightening new literature. This blog post summarizes what I’ve recently been exposed to via these discussions.
- Perhaps kicking off the recent shift in thinking about law and political economy is the long-time-coming publication of Julie Cohen’s book, Between Truth and Power. While many of the arguments have been available in article form for some time, the book gives these arguments more gravitas, and enabled Cohen to do a bit of a speaking tour in the NYC area some months ago. Having a heavy-hitter in the field deliver such authoritative and incisive analysis has been, in my opinion, empowering to my generation of scholars whose critical views have not enjoyed the same legitimacy. Exposure to this has sent my own work in a new direction recently.
- In a complementary move inspired perhaps by the political climate around the Democratic primary, the ILI group has been getting acquainted with the Law and Political Economy (LPE) field/attitude/blog. Perhaps best described as a left wing, institutionalist legal realist school of thought, the position is articulated in the referenced article by Britton-Purdy et al. (2020), in this manifesto, and more broadly on this blog. The mastermind of the movement is apparently Amy Kapczynski, but there are many fellow travelers–some internet luminaries, some very approachable colleagues. The tent seems inclusive.
- LPE is, of course, a response to and play on “Law and Economics”, the once-dominant field of legal scholarship that legitimized so much neoliberal policy-making. What is nice about LPE is that beyond being a rehash of “critical” legal attitudes, LPE grounds itself in economic analysis, albeit in a more expansive form of economic understanding that includes social structures that affect, for example, social group inequalities. This creates room for, by providing a policy-oriented audience, heterodox economic views. Jake Goldenfein and I have a paper that we are excited to publish soon, “Data Science and the Decline of Liberal Law and Ethics”, which takes aim at the individualist assumptions of liberal regulatory regimes and their insufficiency in regulating platform companies. I don’t think we had LPE in mind as we wrote that article, but I believe it will be a fresh complementary view. Unfortunately, the conference where we planned to present it has been delayed by COVID.
- Once the question of the real political economy of technology is raised, it opens up a deep theoretical can of worms that is as far as I can tell fractured across a variety of fields. One major source of confusion here is that Economics itself, as a field, doesn’t seem to have a stable conclusion about the role of technology in the economy. An insightful look into the history of Economics and its inability to correctly categorize technology–especially technology as a facet of capital–can be found in Nitzan (1998). Nitzan elucidates a distinction from Veblen (!) between industry and business: industry aims to produce; business aims to make money. And capitalism, argues Nitzan, winds up ultimately being about the capacity of absentee owners to claim sources of revenue. The distinction between these fields explains why business so often restricts production. As we noted in our ILI discussion, this is immediately relevant to anything digital, because intellectual property is always a way of restricting production in order to make a source of revenue.
- I take a somewhat more balanced view myself, seeing an economy with more than one kind of capital in it. I’m fairly Bourdieusian in this way. On this point, I’ve had recommended to me Sadowski’s (2019) article that explicitly draws the line from Marx to Bourdieu and connects it with the contemporary digital economy. This is on a new short list for me.
Benthall, S, and Goldenfein, J., forthcoming. Data Science and the Decline of Liberal Law and Ethics. Ethics of Data Science Conference 2020.
Britton-Purdy, J.S., Grewal, D.S., Kapczynski, A. and Rahman, K.S., 2020. BUILDING A LAW-AND-POLITICAL-ECONOMY FRAMEWORK: BEYOND THE TWENTIETH-CENTURY SYNTHESIS. Yale Law Journal, Forthcoming.
Nitzan, J., 1998. Differential accumulation: towards a new political economy of capital. Review of international political economy, 5(2), pp.169-216.
Sadowski, J., 2019. When data is capital: Datafication, accumulation, and extraction. Big Data & Society, 6(1), p.2053951718820549.