 Hey everybody, thank you so much for being here. I'm gonna say a few words and then quickly get out of the way to let Julie speak My name is Chris Bavitz. I'm one of the faculty co-directors of Berkman. We're thrilled to have you here We're thrilled to have Julie Cohen here a couple of just quick administrative things were live streaming and recording So just keep that in mind if and when you ask a question at the end Please ask a question at the end. We're gonna save plenty of time for Q&A I may ask a question or two to start things off But I'm gonna quickly turn that over to you and we'll be running microphones around the room for that Julie's professor at Georgetown Law a great friend of many of us at Berkman who know her for her Influential work on all areas of tech including copyright, which I note because Julie's Twitter handle is Julie 17 USC It's a little copyright inside humor for those who get it And her new book between truth and power the legal constructions of information Capitalism is out now from Oxford University Press. We're gonna hear a little bit about that and I'm gonna quickly turn it over to you Julie Thanks Thanks, Chris. Thanks for having me. It's always great to be here Back in the in the Berk world or whatever. We're calling it these days. I So I Chose Julie 17 USC by the way because I have trouble remembering stuff So I can't remember that So I wrote this book Because I was annoyed and I was annoyed at this Which is a sort of stylized way of Collapsing a particular approach to framing and understanding the interaction between The legal system and networked information and communication technologies that sort of stylizes that interaction as the collision between an Irresistible force and an immovable object. You can decide which is which but then if you're in DC you had a run-around going oh my god. Oh my god. How should the law respond and if you're in California? Perhaps you say why doesn't the law just get out of the way and what is lost in that framing is a much more mutually Constituting set of interactions between the two Which is what I wanted to surface in this project. I think the appropriate frame Is a is a frame that comes from political economy and is a frame that recognizes that newly valuable resources new Technologies new ways of interacting that those technologies in gender In turn then in gender new appropriation strategies And some of those strategies are legal right some of those strategies are ways of mobilizing law and legal institutions to get to advance one's particular self-interested project and as that Process winds its way along Sometimes it ends up changing the legal institutions that it has mobilized To serve the purposes and so the question that we ought to be asking is not how should law respond Or why doesn't law get out of the way? But how is law already being mobilized and how is it evolving and changing in response? Some stage setting this slide I know some of you in the room have seen this slide in the next slide So I apologize it's useful to look back first and a particular touchstone for this project is Carl Polanyi's work on the great transformation in British political economy And he was of course not talking about networked information and communication technologies He was talking about the transformation from agrarianism to industrial capitalism and This book did a couple things all of which I would argue are relevant for us as we struggle to understand the current and ongoing transformation to an informational political economy First it described it mapped and it mapped although this is sort of my Structure, I think more so than his but it mapped transformation along three lines or three dimensions a process of appropriation of Resources in particular if you want to have a factory you might need Railroads to carry resources of the factory you need right of way for the railroad You need water to run the power wheels in the factory You might need Large concentrations of land and so you enclose it and then you kick all the peasants that are using it off Something that you'll I has written about in a different context as the enclosure movement So one dimension is appropriation of resources a second dimension which is equally necessary for a transformation to a regime of Capitalism is learning to think about the inputs to production in a different light And that says commodities right so plenty right about the commodification in particular of labor land and money the three principle Inputs to this regime and then a third dimension along which transformation Proceeds is a detaching of what had previously been sort of little local patterns of barter and exchange And learning to see economic exchange as occurring sort of on this disembeded plane right Called the market which is a fiction which is sort of everywhere and nowhere and that's where economic exchange happens Second thing he did After this description was to then stylize this process as a double movement an initial movement to a capitalist political economy Comprived of those transformations and then as people began to notice Some problems right people are getting their limbs chopped off in factories There's a lot of pollution in the skies over London from all the factories Then a protective counter movement the second piece of the double movement which which happened as lawmakers of the time Had to figure out what to do and now you may get the how should law respond piece perhaps So the British Parliament among other things wrote the first sort of rudimentary precursors to worker protection laws during this period And so if you were to ask or if I were to ask you where's the role for law in this story As I've just indicated you could tell a story about this process that takes the form of the how should law respond narrative But that's not the story that I think ought to be told because if you look back at that transformation Legal institutions are involved at both phases of the double movement You can't kick the peasants off the land without the laws permitting you to enclose the land You can't have the factories and the railroads and the British East India company without a legal framework Permitting you to amass capital And use it for various purposes Law is used to facilitate the first phase the movement to a capitalist political economy before It becomes sort of mobilized for protective purposes. So let's just run the parallels really quick We've got now sort of happening underneath and around us And have had for some time increasing focus on appropriation of intangible resources and That process begins way back in the early to mid 20th century with a drastically increased focus on things like patentable inventions and copyrightable expression and and industrial trade secrets, but it's Achieved warp speed as that universe of resources is widened to include data and algorithms and things of that nature We have I would argue a parallel process of reconceptualization of the inputs to production Laborland and money and now also people as data Okay Datification of everything if you're wondering how you can data-file and just think a little about the mortgage crisis And you'll have your answer And and and we can dive into some of the other things if you want Um, organizationally we're seeing a shift That consists of these patterns of butter and exchange now becoming detached from the everywhere and nowhere Construct of the market and becoming if you will rematerialize and re-embedded in platforms And I don't just mean Google and Facebook. I mean everything right special purpose Platforms for interbank financial trading special purpose platforms for hiring and tasking and monitoring and firing workers special purpose platforms for Commodities trading special purpose platforms for doing lots of things and then the general purpose platforms that we all encounter as consumers and users vendors of cloud storage Providers of policing technologies platforms are everywhere and platforms are not everywhere and nowhere at once platforms have very Concrete material and protocol logical entailments and lend themselves to different kinds of control Okay, what about this This is actually not so what I want to do in the book let me come back to that actually I want to map These processes of transformation that was the goal, okay to show how legal institutions are already being mobilized to produce these transformations Giving us the movement to informational capitalism, which is a legal institutional process as well as an economic one The question whether that process is producing mounting cost to human well-being and whether we need a protective counter movement And whether anything that's being talked about so far is likely to work I'm gonna leave up to you, but a signal purpose of the book is to just really poke hard on that, right? And and you may have some hints about what I think, okay? So how is law being mobilized to produce this process of legal institutional transformation? Part one of the book looks at the level of baseline relations of entitlement and disentitlement And and since we're sitting in a law school and some of you probably know who Hofeld is or was rather The inspiration for that part of the book is is is somewhat Hofeldian The idea is that entitlements and disentitlements correlate with one another and when you change them you change Relationships, okay, and then the second part looks at things that might be more familiar to us all as institutions courts and the regulatory state and Human rights instruments and so on So with regard to baseline entitlements and disentitlements I want to just draw out I think Three big points here. So so one on this slide and two on the next so the first Point is that this process of appropriation of valuable resources is a process in which Entitlement relationships become targets of legal entrepreneurship, right? If intellectual property law for example won't quite do what you want We'll push on it and stretch it and twist it and manipulate it until it starts to do what you want and so funnily enough we have seen the Contours of even those somewhat old IP rights patents copyrights trademarks trade secrets re-envisioned As assets and as portfolios of assets and as investments and we have seen a Similar sort of pushing and pulling and stretching happening in the area of corporate governance So a lot of the big tech firms you may know use a dual-tier Ownership structure for their stock, which means that even after they have gone public Extra voting power and extra control is reserved to the foundational innovators and the VCs Which means that everything you might have thought you could say about the power of the public capital markets to Discipline the behavior of these companies has to kind of be rethought And that's an innovation that originated actually back in the mid 20th century for I believe to help certain closely Hold held family corporations transition into the capital markets. I think it was invented for John Wiley and sons I may be wrong about that, but it didn't come from big tech It's a tool that big tech found lying around right and they picked it up and they repurposed it to make it do Something that that would serve their purposes We see What I term performative enclosure of data and algorithms, what do I mean by that? it So if you took a class and intellectual property you learned before you got through say the second week that you can't own facts or algorithms and if you you know exceeded to the terms of the software developers kit or or Interacted with a data-rich platform as a user whether an individual or a business You would be exceeding to these terms to boilerplate and to protocol based terms That effectuate a de facto enclosure of the data and the algorithms and in the process of these terms being Propagated and reiterated and insisted upon it starts to become sort of common wisdom that these resources are proprietary And I would actually bet that in a couple more decades when you took that intellectual property law course Facts and algorithms would start to be described differently. It's a process of enclosure. That's driven by the performative That's driven by repetition and iteration and we see data harvesting right from all of us all the time and And the use of a narrative that's very old that comes from intellectual property law Also about the privilege to appropriate and use what one finds lying around in the public domain But that narrative is used to cover a multitude of really interesting things right a building out of the networked environment To generate and throw off these data flows, so they aren't just lying around there. They are they are manufactured Under cover of a narrative that that gives privilege to those that harvest the data All of this is not simply economic entrepreneurship It's legal entrepreneurship and it starts to create sort of deeply intertwined thickets of De facto right and privilege to control intangible resources Okay, here are the other two big points and I'll just throw them all up at the same time. Oh, that's not what I wanted to do Entitlements don't just have to do with control of resources They have to do with relations of accountability and Immunity and that's a whole Feltian base pair if you remember your your hotel right if someone can be accountable for harms to others that's one way That that entitlements could be allocated But if someone is insulated or immune from accountability then everybody else is under a correlative disability They are not able to hold the party that has injured them account and we see sort of broadening and coalescing and Increasingly powerful constellations of de jure and de facto immunity from accountability for information harm CD 8 to 30 is probably something that you all are familiar with in this room First amendment shelter for information processing Which is which would not have been a thing half a century ago is Is something that now is broadly acknowledged to exist in the in the doctrine It was it was the product of a sort of conscious litigation campaign to create a set of interpretations That would that would extend the first amendment to data and In some cases you do see state actors pushing back, right? the Europeans for example have pushed back really hard on Obligations to take down terrorist related information on the right to be forgotten and There's a struggle that has shaped up between powerful state actors and powerful private actors like the Facebooks and Googles of the world but even where there's formal Accountability to the state as there is for example with the European directed the European Obligation to remove terrorist information within a certain amount of time this devolves in practice to privately operated self-regulatory structures The the thing that we may be familiar with Under the label of content moderation at scale because that's a term that the information industry wants us to learn It's a term that is laden with political Valence Because moderation is nice It's Papering over some would argue and I would argue a whole lot of immoderation at scale which is built into the design of many of the processes To which content moderation is now being applied But when you filter an Interdiction obligation through structures for private content moderation or content take down or whatever you want to call them You have the states power to impose liability being sort of displaced by private power to Impose or not to impose right to take down or not to take down to de-platform or not to de-platform That's a shift again in the baseline allocation of entitlements and disentitlements and again all I'm trying to do is nap Right That's what I'm trying to do here. Okay. What happens next? That is Something is strange. Okay. Yes. Thank you. Okay, so so let's talk a little about the back half of this project and the I Have to maybe before I even flip to the next side say something about surveillance capitalism as a way of understanding these changes There are lots of things that the surveillance capitalism frame is good for But one thing it is not very good for is understanding how legal institutions have Been remade via their interactions with networked information technologies That is a process that has been underway Well before the start of the 21st century And it's a process that is best understood by looking to Literatures and management and organization studies about how the private organization Took on board and was transformed by information technologies So there's a very famous book by a person who was on the history History and science faculty here James Beniger. He was on the faculty here. I forget the department maybe maybe government called the control revolution and In that book he mapped how when you take Into the organization Sets of technologies that permit more fine-grained control over the processes of that organization whether they're manufacturing or mining or delivering services or what have you you you enable a Fundamental kind of managerial transformation in the way that that organization is operated There's all sorts of things you are empowered to do And in consequence of all of those things that you're empowered to do The operations of management themselves are restructured. You need a lot more management also And management does very different things Every bit of what I just said Applies equally to the courts the regulatory state and so on it's just that we haven't really been accustomed to thinking about those institutions that way It's it's sort of common to to teach about our legal institutions as though they are timeless and as though the They're sort of underlying fundamentals were carved on stone tablets and carried down from Mount Sinai and and to overlook Even that the forms of those institutions themselves as they are taught in US law schools today are Overwhelmingly industrial era artifacts a lot of the sort of foundational Moves in the in the sort of construction of those institutions were made in the early late 19th and early 20th century and And we're sort of pre information economy moves and as the control revolution has begun to come into those institutions we see Those institutions Responding to the managerial potential that the technologies create But because they encounter other factors in particular neoliberal ideology The turn goes in particular ways Okay, so the informational turn in the courts the informational turn in the regulatory state through its encounter with neoliberalism turns toward particular kinds of implementations very So so There's a there's a naturalization right of Baseline entitlements to harvest and control data in particular so that if you were to go in the courts and try to bring suit Under various kinds of laws relating to information privacy You would find the deck stacked against you in every conceivable way But That doesn't even really get at the fundamental nature of the transformations that have been underway So if you were to come into the court System as as a as a plaintiff with a grievance of a particular kind you would find A sort of rapidly accelerating kind of managerialist differentiation in the way that the court system is structured entire categories of Repeated sort of low sophistication low cost low value disputes involving employees consumers Criminal defendants also are outsourced or distinct features of those disputes like knowledge production of the knowledge needed for sentencing outsourced and In ways that align quite startlingly well with management and organizational studies decides Literatures on when you would want outsourcing and what it is good for If you wanted to try to bring a class action information privacy lawsuit you would find That large-scale structural reform litigation has been the subject of managerialist differentiation as well So so instead of the sort of mythical Trial that you see in the movies The the principal vehicle that has emerged for managing large-scale structural reform litigation is the timed time delimited consent decree right, so so you get Maybe as part of a settlement certification maybe as a consent decree in public enforcement An agreement with a lot of fanfare to 20 years of supervision not that much follow-through often and And who supervises is not a judge, but overlapping sets of management, right? lawyers accountants auditors Information professionals who are brought into this sector now of dispute resolution to apply Intensively informational techniques to overseeing something called compliance. What is compliance? Well, compliance seems to entail a lot of box-checking right a lot of benchmarking and a lot of a lot of verification It's not so clear that compliance produces Say for example a remedy that the plaintiffs who originally started the process would recognize as one Turning to the regulatory side of this process of differentiation We see a great deal of stress being placed, especially across the sectors that are highly informational finance Food and drug information privacy other health information on devolution to private best practices a Lot of standard setting a fair amount of technical standard setting now if you think about that Volkswagen defeat device or about the bow Boeing 737 max or about anything that NIST does Regarding standard setting and propagation of standards through the rest of the regulatory state We see a lot of consent decree-based enforcement. We see a lot of auditors We we see a lot of compliance All of this is very heavily informationalized None of this whether on the court side or the regulatory state side lines up Especially well with those kind of old Artifactual rule of law ideals that were generated a long time ago, right the idea that lawmaking should be Public should be reason should be contestable should be should be Transparent to the persons who it affects Instead we see to quote a Wonderful surveillance studies scholar named David Murakami would although I don't think this is actually in the book governance sort of going up and out right into the Ether into the realm of of standardization and audit and compliance and when it intersects again with with the sort of neoliberal idea that that that The System of political economy should be arranged in a way that privileges private market activity and that the role of the state is merely to sort of steward that process That accelerates the turn to the managerial and Then when the processes intersect with really Complex data-driven algorithmic processes it becomes harder and harder for Those supposedly tasked with governing to to understand the processes that they are seeking to govern This is so so the last point is well recognized in the literatures on algorithmic accountability The point I'm trying to make here is that it's also an institutional design problem for law and It is so and I don't want to be understood to be standing up here being all nostalgic about the old You know judge and jury trial or about old command and control Regulation that we had you know back in the era when the interstate commerce commission first started setting railroad freight tariffs That's not my point. It is absolutely to be expected that the modalities of governance should evolve to to keep pace with the The sort of technological predicates that underlie the system of a political economy as a whole But it is also to be expected that we should Want to start that way we should expect to have a say right in the design of governance institutions for the networked information economy and if there is a widening gulf between The ways those institutions operate and the ability to have accountability and effective governance of of the The conditions of the networked information economy. That's also that's an institutional design problem, right? We should expect to have a say I'm gonna if people want to come back to network and standard based governance I'm happy to do that, but I see that times moving on so I want to talk a little bit about fundamental rights There's a mismatch as well that we need to that we need to pay attention to between the the set of the set of artifacts that comprise our protections for fundamental rights and And I do mean that right everything that we think is a timeless legal institution, right? The judge and jury the the trial right? We may not think that the regulatory state is equally timeless, but we probably think of our human rights as fairly timeless There's sort of post-war artifacts at least as they're currently You know conceptualized and they're conceptualized in a particular way to match What were perceived to be the most urgent problems? although there's a I Want to return to one point of debate about that so our human rights instruments on the whole Have been aimed toward state-based violations Have presumed that the way that you contend with state-based violations over and above sort of diplomacy is by having courts right by rights based tribunals and the tribunals adjudicate cases based on discourses of obligation and the prevailing vernacular for talking about rights is highly individualized individuals are the bearers of rights The changes in our legal institutions that are sort of wrought by and responsive to the operation of network highly informational governance processes have compromised every link in that chain, right? So one has Overwhelmingly to contend with now the ways in which privatized transnational flows of information aren't implicated in various kinds of rights violations and Implicated in ways that governments take advantage of right so governments are not out of the loop But large privatized providers of information infrastructures are in the loop There's a lot of sort of privatized governance that That goes into directing and channeling those flows of information in ways that make courts Sort of marginal to processes of oversight There are efforts to devise new ways of talking about rights particularly under the heading of corporate social responsibility that are like to call them discourses of aspiration rather than discourses of obligation and the Mechanism for rights violation is the network process implemented at scale and the result of This sort of sea change is a Disintermediation of legal institutions tasked with protecting fundamental rights, right? You had I did skip over a slide, right? So and then I would have talked but I didn't in the interest of time about the ways that for example international trade governance bodies are implicated in this picture, but there is a lot of a lot of There is there is a large shift in the center of gravity of governance of Matters that are Foundational to the enjoyment of fundamental rights out of the tribunals formally tasked with protecting fundamental rights and into other realms trade internet governance Transnational financial governance To name just a few and then of course there's Google and Facebook the the the sort of the bottom line here I think is that When we Think about power and networks and networked information flows Many of us including a lot of the people in this room like to quote the the sort of old chestnuts one of which is censorship The net interprets censorship as damage and routes around it In the realm of governance increasingly It's this right Power interprets regulation as damage and routes around it If some court somewhere is going to tell you you can't do something Maybe maybe under the rubric of an international trade agreement or within the framework of a private platforms Processes you can do the thing that you were told you couldn't do And it's difficult to get traction on that problem now again. This is an institutional design problem So here's what I want to leave you with And I imagine people will have a lot to that that they want to say I think we are confronting these questions about What legal institutions we want to have for the political economy that has emerged and It is very tempting again within a law school to let nostalgia drive that inquiry and It's something to be resisted. It isn't for example possible to go back and have you know a full court a Full dress judge and jury trial for everything that has been outsourced every person on the planet would need to be employed by the legal system It isn't possible to go back to some of the modes of regulation that the drafters of the Administrative Procedure Act envisioned it isn't possible to Give individuals the rights to port their data to another platform or to withdraw their data and expect to achieve large-scale structural change in the design of networked Platforms that that use people's data in particular ways So that individualist paradigm may be a thing that we need to kind of move past in the interest of not getting trapped in our Nostalgia we have though to answer these questions And and and we have to answer them. I think within these parameters We need to be very skeptical about shiny new innovation rhetoric and We need to be willing to think outside the box So I'm gonna stop and Chris. Where did you go? Do you want to take over I'm gonna ask one question and then I'm gonna start handing the mic around and Ruben and Megan to do the same. This is great. And there's so much here So one thing that jumps out of me as you describe and it's undoubtedly True and it's really descriptive this world in which we have this institutional design problem We expect to have a stay in the governance of ICT sector But there's a lot of privatized governance and it sort of as a precursor to that and look the the narrative of What you're calling legal entrepreneurship is idea that powerful actors encounter existing legal and regulatory regimes and then rearchitect them to suit their needs and you have these great examples of Reconceiving IP rights and changing corporate form and all of that I found myself thinking as you were going through those examples that for each of those I could come up with a counter example of rearchitecting legal regimes that is not in support of the interests of the powerful corporate actors But in support of us the justice whatever value you want to put on that So, you know, just as the corporations reconceive of IP rights and sort of acid ties IP We have open-source software licensing regimes and creative comments and just as changes in corporate forming governance allow This you know mixed corporate ownership among general shareholders and VCs We also have double bottom lines and benefits Corpse and we also have models for Fundraising that are based on patronage or crowdfunding and all of this and I guess My question is is where where does all of that the thing I'm highlighting counter examples fit into your narrative? Why why do they lose out to I'm gonna I'm gonna just go out on limb here I think it mostly it pacifies us In some cases it does worse, right? So open and nobody, you know created Larry Lessig wasn't trying to create the Google verse when he dreamed up creative commons Open content regimes have enabled The construction of these digital ad tech based business models because they're the inputs, right? Even if that's an unintended consequence It's a consequence and it has been such a large shift that it is threatening to bring down democracy right as a political form so so Yes, small innovations can have really big ripple effects, but I am not sure I want to get on board particularly at that example Crowdfunding your kids cancer treatment instead of having a health care system that works You know color me unimpressed, right? I can see the impetus to put these things in place as a stopgap But I am just not sure that that's where I want to sign off you know I'm gonna use my moderate in first-hand to my friend Jessica Solby. Yay, my friend Jessica Solby. Okay. Thank you for calling me your friend I'm your friend too Julie so that was incredibly succinct and helpful and fabulous for all the reasons that you are I Want to know where the truth in your title comes into your exegesis of the talk That is I want to you didn't mention truth in all these PowerPoint slides and so I want to give the opportunity to talk about that as a concept So, yeah, and the only place I do actually talk about is in the introduction And so here's and then a little bit conclusion to actually so so here's what I think so so an impetus I said I wrote the book because I got annoyed and and if I'm being 100% Honest here some of the some of the woo woo internet Utopia crowd sourcing Rhetoric was part of what made me annoyed because you could see these These effects starting to emerge and I would argue that folks in the privacy community were kind of in the vanguard of that The a lot of the There's a there's the sort of protest trope of speaking truth to power Which I think is often uncritically Applied to a lot of very theatrical but not very effective behavior and so for me there was a resonance there if you go back and you look at the Quaker Manifesto titled speak truth to power It's a manifesto about them rise the military industrial complex and the foundational importance of political economy in Laying down the baseline conditions for having a just or a just society and I wanted to allude to that But I also wanted to allude to the motto of my law school and then problematize it. So at Georgetown Law It's carved in the ceiling at least one place and it people say it all the time The the law is but the means justice is the end and that's a Georgetown thing But I don't think that it's an unusual sentiment to encounter in a law school and yet what do lawyers do? right lawyers Work for power right and lawyers modernize right lawyers join the ALI they write restatements. They issue white papers But they also drink the Kool-Aid about what modernization consists in often so lawyers and Technologies that are used by people to communicate. I think serve this mediating function right, maybe you're serving justice. Maybe you're serving power. You're in between you're between truth and power and actions can have ripple effects and Maybe ones you didn't intend I don't think You know Mark Zuckerberg intended to bring down democracy as we know it But I don't know We can talk about that too. Maybe somebody wants to So Yeah, you're all in social science fits into this. I think I get in the surveillance capitalism frame That's where a lot of like the predictive insights that make at-tech work come from but here It seems like these are the things that could rationalize each of these transformations like standards-based Compliance and all that but I'm wondering like yeah production of knowledge by social scientists behavioral scientists and The ways that they get underwrite a lot of this stuff and how you're thinking about them and what institutions can be used to govern that Yeah, I mean I I I think behavioral and social sciences are useful tools right, but They can be tools that can be used for many purposes I think you know, I'm a believer in evidence-based policymaking. I come from Washington I just kind of feel like I should put that out there, but but There's a you know, I wouldn't There there's a distinct skill set that That is necessary for Policymaking that entails moving beyond the frame that you would get from your behavioral social science research from your economics from your network science To considering public policy ramifications in a more overarching way so I Think that behavioral and social science has a place at the table, right a thing I would like to see for example is an administrative procedure at 2.0 That defines a suite of competencies for the regulatory state that includes sort of computer forensics and audit that includes behavioral and social science around particular sets of issues Especially relating to consumers but I do think we always need to to be critical about the about the priors and the uses That makes sense. Here's the mic Let me say Lucas McClure. Thank you very much for your for your work I Found it very helpful for people trying to map The legal dimensions of information and capitalism in the United States, but also around the war something that you So yes in the integration of your book And and I went and also people thinking about what the counter movement And I want to ask you about Fundamental rights the future of fundamental rights the rule of law 2.0 Imagine a nation where Designing a new constitution in 2021 from scratch Through a democratic process a constitutional assembly What would you advise them to do now? This is yeah, this is not a mere thought experiment, right now in Chile and where I come from I constitution making process starting It's very democratic and as people in this room know It's about changing a constitution that was inherited from a military regime and that makes possible a neoliberal regime So that's my question. What would you? Advice people there. It's a big question, of course But it's also used for this room to look to Chile in the next three years because the question I'm going to be asked so there's so there's Stuff missing from this slide that bears on this question the Post-war settlement around, you know, the what ought to be in a human rights instrument was Weak on economic and social rights. I'm sure there are a lot of people in the room who know a lot more about that than I do including probably you and as Developing and then new new democracies have begun to draft their constitutions questions have arisen about Putting economic and social rights in those instruments, but then Beyond that once you've got them in an instrument. How do you operationalize them and it's Relatively easy to put something in a text, right? But it turns out that when you go to operationalize for example economic and social rights, which I happen to believe should be part of a constitution There's this whole debate going on right now, but whether our constitution has sort of aged out of usefulness Which is so it's relevant here, too, right? You don't on the whole operationalize economic and social rights by having judges issue injunctions, right? you need some kind of Managerial oversight structure right to get the food and the education and the water and the electric power to the people The problem is not that that's a Kind of institutional configuration that has emerged The problem is that the way that that kind of institutional configuration has emerged is one that doesn't actually Take as its overriding goal Getting the food and the water and the education to the people and and one that becomes sort of sidetracked into Artain debates among experts about what the right indicators should be right and who gets a piece of the grant money and so There's a piece, right? Institutional design for economic and social rights that has to do with how you would do that differently in a more accountable way and Then of course, there's a piece that has to do with What you're gonna do when One person's or one community's claim to economic and social rights threatens what someone else pursue You know a business is claimed to protection for its foreign direct investment and so Another place I would say That and this isn't gonna make you happy probably but but we haven't sort of figured out if governance is sort of dissipating into places like trade and foreign direct investment disputes and cross-border You know settlements about bank capital adequacy Then human rights needs to follow Right, and so it isn't enough to have a bunch of constitutions If they are sort of little islands sitting in a larger transnational network structure That treats human rights is sort of epiphenomenal right sort of appendages here and there and that's a So this is like this could be a really long conversation, right because but enough. Yeah Yes, hi Bruce How do you look at US versus EU? How are the two different or is it different governance? Yeah, I was doing things differently, right and have you seen Daphne colors bingo card where there's the but what about China Square so so What I have to write because there's a There's a three-way game shaping up, right US EU China in terms of information privacy regimes in terms of information governance regimes and You can't not mention it because one of the things that that the US platforms are now starting to say is Don't burden us too much with this EU style regulation because what about China check the bingo box, right? I think that There is much to like in for example the GDPR, but the GDPR has like an internal identity crisis, right? There's Lovely aspirational stuff about privacy by design and data minimization and not a lot of concrete Learning yet about how you operationalize that at scale in an enforceable way, right? There are nice experiments here and there and then there's a ton of stuff about rights to you know rights of erasure rights to Withdraw your information rights to this rights and that and a ton of learning about how you might start to operationalize giving individuals those rights But it's not super clear to me that you achieve governance at scale of the more problematic aspects of the model by Emphasizing emphasizing the the stuff we know a ton about and and so I think the jury's out on whether They develop sort of the parallel body of learning about how to operationalize and enforce privacy by design But then you still have to say what about China because in the context of this three-way global game It's not completely up to them, and I'm still sort of scratching my head about that, but Kendra wants in so Jump in they do have a comment, which I'm generally not a fan of but with your permission That's fine. I wanted to sort of jump in on the conversation. You were having with Chris early about the sort of We what might be seen as like bottom-up Adaptations of like using some of these tools and I wonder if not just thinking about them as a palliative Right as like making people feel better, but actually thinking about them as like the camel's nose in the tent, right? it's the way in which folks and I'm in particular thinking about a Open-source copy left licensing and sort of covenants and conditions and sort of broadening the scope of copyright can of copyright to cover things that aren't copyright, right the way in which we all got really excited about the fact that you know You can Make a whole bunch of non copyright related stuff conditions of a copyright license is the enforceability of Open of open-source software of copy left licenses, but at the same time that creates all kinds of like opportunities for the sort of what you're describing as the right creep of like Contractual obligations that now go far beyond copyright. So I wonder if not just thinking of it as like oh this makes it You know, it's meant to make you feel better, but actually it is a way in which You can get Further advance the cause of these kinds of these kinds of managerial systems while having everyone be like happy about it I Mean that's right. It's why all that boilerplate is enforceable, you know, and I've taught covenants and conditions myself and it's really a puzzle You know there's a You're right. I think that there's a People in tech law maybe had like a little self-hatred problem, right? Like we want to learn to transcend law in some way And if we get blockchain we could transcend norms to whoo-hoo, you know, we could just transform it all And I actually don't think I think we need to evolve beyond that You need functioning institutions To have a society and some of those need to be legal institutions And if the ones we have now aren't so well adapted or they become increasingly Maladapted under these ideological pressures, then it's time to sort of it's time to reinvent them But from a perspective That celebrates the need or or maybe if you can't get that far accepts the need to have law and and and proceeds from there Yeah, so I want to follow up on Bruce's question So if you think about I'm trying to put this in the context of global governance Mm-hmm, and if you think about somebody like Danny Roderick writes about the trilemma, right? And the trilemma is you can have national sovereignty. You can have democracy And you can have globalization, but you can't have all three of them are under pressure But you can't have all three of them at the same time You know kind of two of the three when I think about this in a tech world where You know kind of the fixed costs are huge up front But once you have it the marginal cost of distributing softwares close to zero Mm-hmm, and you can have nation states who set standards, right? But then those standards in the fact that often become global standards In your in your kind of framing of institutions, but what's the legal institutions on a global basis? Is that just a lost cause and so we should accept that it's gonna be nation-state governance of some sort or nation-state laws and institutions Yeah, how does all of that kind of come together? So thank you first of all because you took me to my slide slide that I skipped the We haven't It's not new to say that people who work on Global governance have recognized for a long time that the old hierarchical nation-state Westbillion model kind of doesn't port well But there is this emergent institutional form that has that we see in the transnational space that is network and standard based right the There's this other piece of folk wisdom about how networks are inevitably more democratic than Hierarchies, which is totally not true, right? If it's network and standard based governance, right? around a standard then the governance is in the standard, right and So governance is going up and out, but one of the places that's coming to rest is in standards And you can you can see it, right? You just have to go and look at Sort of the proliferation of standards bodies kind of as appendages within trade governance or You know sort of encrusting like barnacles on to Onto sort of nominally cooperative arrangements for transnational financial governance But by the time you take account of all the standards that have accreted around doing things a particular way that's governance, right? but it is not sufficiently well theorized at the level of You know how you have how you put that on all fours with some High-level ideas about what the rule of law requires, right? Even if the specific sort of lower level articulations of those principles don't seem to work anymore, right? So so if you you know some of this stuff is pretty technical, right? It's not going to be directly publicly accessible and yet there's a public accessibility value, right? there's a lot of You know speaking of where the behavioral and social sciences come in you need game theorists involved You know because because there are all of these interesting forms of gaming that come in to network and standard-based governance and We and and if you hook into the network, right and then You know just like the It used to be Microsoft Windows and then it became the browser and then it became the app store, right? You can you can you can hook yourself into a network and then become your own sort of powerful dominant network so there's a lot of opportunity to to engage in sort of governance standards wars, right and What I think we urgently need is to pay attention to this phenomenon of sort of a creating You know overlapping interlocking expert assemblages and network and standard-based governance and see it as not weird stuff happening around the edges of what is governance, but as Governance right as a central phenomenon to be studied and understood and then perhaps Sort of disciplined and constrained in a way that seems to make sense Which you know and off we could go on a whole discussion about how Transnational governance is sort of an inherently like quixotic and aspirational activity anyway because it is right But but I do think there's there's some definite room for improvement here And I have to end it there Julie's books available out in the hall here and please join me again. I'm thinking Julie You