What Comes After Not Enough?

Amy Kapczynski —

What might a new human rights movement look like after Occupy, Brexit, Piketty, and Trump?   Sam Moyn’s new book brings us deftly to the edge of this question, and it’s here that I want to jump in.   Not Enough offers important insights into some of the failures of the existing movement, at least in its mainstream form. Drawing on these, as well as my own experience with the access to medicines movement – a movement that has invoked human rights but never defined itself through that idiom – I’ll offer a few thoughts on the shape of a human rights yet to come.

moyn post

One central aim of Moyn’s new book is to demarcate two kinds of left political thought – one organized around distribution and another organized around sufficiency.   Do we demand equality? Or do we demand enough? The key failure of the human rights movement, he argues, is that it has settled for the latter, and a particularly stingy version at that. As market fundamentalism advanced, human rights spun out a minimalist utopia. Socioeconomic rights took shape as demands to a “core minimum.” The movement demanded a “just enough” that in its very nature could never be enough, nor just.

As Paul O’Connell noted last week, Moyn’s is really only a history of part of the human rights movement. It has never been clear exactly how to define “the movement,” and many local groups make radical and even revolutionary claims under the sign of human rights. Moyn’s framing is not, however, without justification: he trains his attention on the institutions and documents that many people treat as the “core” or most consequential aspect of the movement. Implicitly, this reproduces a status hierarchy that I’ll argue in a minute must be undone if human rights is to be remade. But it also allows Moyn to show why we need a new human rights. The mainstream human rights movement came to prominence by embracing a certain kind of minimalist anti-politics, and trading off the best for the good.

This mainstream paradigm is inadequate to the challenges we face today. Moyn is right: We need a new human rights, one that does more than seek to “avert disaster and abjection.” This new version should embrace the politics of “material equality.” It must also demand deeper political accountabilities, inventing structures to facilitate a “welfare world” rather than accepting the pastiche of participation offered by international institutions to date.

What might a human rights movement look like that was more adequate to the challenges of our time? All of this, I think, and a few things more.

Continue reading

Law and the Political Economy of Technology

Amy Kapczynski –

In April, Jack Balkin, Yochai Benkler and I convened a workshop on the law and political economy of technology at Yale Law School. Participants drafted thought papers, which we spent the better part of two days discussing.  In the coming weeks, many participants will post revised papers or reflections in a series of posts that will be featured on these pages and cross-posted at Balkinization. scalesanddata.jpg

In convening the conference, we aimed to bring a political economy lens to a domain of extraordinary importance to our lives today.  Robots, gig-economy platforms, surveillance capitalism, and global networks all have helped shape rising inequality and the increasing precarity of work.  Bots and social media generate new challenges for democratic societies purportedly based on fair elections and a reasoned public sphere.  New surveillance technologies are being embraced by the criminal justice system, the military, and intelligence communities, with little attention to the racialized implications of these new extensions of the carceral state.

In analyzing problems such as these, we began from a shared understanding that technology doesn’t operate outside of a social or legal context.  Technology has a political economy, deeply shaped by law.  Politics orders technology through many different decisions made in code and in law.  These include decisions about the scope and ownership of intellectual property, about the permissible degree of concentration in industries, and about who will be allowed to access the outputs and inputs of technology. Law, together with social norms, shapes the diffusion and adoption of technology—for example, through labor and employment regulations, tax and transfer policies, and securities laws. How does law interact with technology to increase control by some and decrease the freedom of others? How does it in so doing exacerbate inequality?  And how might law make social practices mediated by technology more democratic and egalitarian? Over the course of this series, we will investigate how politics and law interact with technology to influence political and economic organization, mobilization and political communication, and patterns of inequality and economic insecurity.

Continue reading

Why Civil Disobedience, and Why Now?

Amy Kapczynski – 

On December 5th, I joined hundreds of people from 32 states in Washington D.C to protest the Republican tax bill.  We packed the hallways outside of the offices of seven key members of Congress, and mic-checked one another so that people’s stories about the bill’s devastating consequences could be heard.   A group of us – around 130 in total – refused to leave when the Capitol police arrived, and were arrested.

It was in many ways not an unusual act – the next day, more than 200 people were arrested in D.C. demanding a Clean Dream Act.  I’m heading back to D.C. today for another protest, joining hundreds more in a last ditch effort to head off the tax bill.*

25440722_10156090406488701_1877332242_o

Many people have thanked me for what I did two weeks ago.  Perhaps it’s because I’m a law professor.  Or perhaps it’s because so many of us are wondering what more we can – or must – do to save our democracy and bring about a more equal society.

Confrontational protest and civil disobedience are an indispensable part of the answer. Here are five thoughts on why I decided to participate in the protest, and what it means to me, and what I hope it might mean to some of you.   Continue reading

Your Money or Your Life?

Amy Kapczynski – 

High drug prices are a major problem in the United States. In the Washington Post today, Aaron Kesselheim and I have an op-ed about what President Trump could do – immediately – to lower drug prices, if he had any intention of following through on all of those campaign promises and tweets. 649816939_1280x720(We also explain why his nomination of Alex Azar to head HHS is a clear sign that he will do none of this.)

Here I wanted to say more about the stakes of the drug pricing problem, and about one option we describe – a little known patent “eminent domain” power that could be a powerful tool to lower drug prices.

Continue reading

Why “Intellectual Property” Law?

Amy Kapczynski – 

When I entered law school in 1999, I was primarily interested in two things: HIV/AIDS, and critical approaches to human rights.  I was also young and queer, and Bowers v. Hardwick was the law of the land.  Sodomy was illegal in many states, and so, it seemed, was I.  So, I was also deeply interested in the law of sexuality.

MSF_access_A4_poster_ring

Médecins Sans Frontières (MSF) poster

I ended up teaching and writing about intellectual property (IP) law.  My 1L self would not have believed it. (I even have the picture to prove it).

As a prelude to a series of future posts about my work in this field, I wanted to describe how I came to IP law – or rather, how it came to me.  If you aren’t sure what IP means or why it is important to social justice today, this post is for you.  The same is true if you are wondering how someone interested in law and political economy develops a research agenda, and why someone might choose patent law as a key part of it. Continue reading

Law and Political Economy: Toward a Manifesto

David Singh Grewal, Amy Kapczynski and Jedediah Purdy –

This is a time of crises.  Inequality is accelerating, with gains concentrated at the top of the income and wealth distributions.  This trend – interacting with deep racialized and gendered injustice – has had profound implications for our politics, and for the sense of agency, opportunity, and security of all but the narrowest sliver of the global elite. Technology has intensified the sense that we are both interconnected and divided, controlled and out of control.  New ecological disasters unfold each day.  The future of our planet is at stake: we are all at risk, yet unequally so. The rise of right-wing movements and autocrats around the world is threatening democratic institutions and political commitments to equality and openness.  But new movements on the left are also emerging.  They are challenging economic inequality, eroded democracy, the carceral state, and racism, sexism, and other forms of discrimination with a force that was unthinkable just a few years ago.

Law is central to how these crises were created, and will be central to any reckoning with them.  Law conditions race and wealth, social reproduction and environmental destruction.  Law also conditions the political order through which we must respond.

How should legal scholars and lawyers respond to this moment?  We propose a new departure – a new orientation to legal scholarship that helps illuminate how law and legal scholarship facilitated these shifts, and formulates insights and proposals to help combat them.  A new approach of this sort is, we believe, in fact emerging: a coalescing movement of “law and political economy.” Continue reading