Search the archive.

(Peter and Valerie, “Class Dismissed? Historical materialism and the politics of ‘difference’,” Educational Philosophy and Theory Vol. 36, Issue 2, p. 183-199)

For well over two decades we have witnessed the jubilant liberal and conservative pronouncements of the demise of socialism. Concomitantly, history's presumed failure to defang existing capitalist relations has been read by many self-identified ‘radicals’ as an advertisement for capitalism's inevitability. As a result, the chorus refrain ‘There Is No Alternative’, sung by liberals and conservatives, has been buttressed by the symphony of post-Marxist voices recommending that we give socialism a decent burial and move on. Within this context, to speak of the promise of Marx and socialism may appear anachronistic, even naïve, especially since the post-al intellectual vanguard has presumably demonstrated the folly of doing so. Yet we stubbornly believe that the chants of T.I.N.A. must be combated for they offer as a fait accompli, something which progressive Leftists should refuse to accept—namely the triumph of capitalism and its political bedfellow neo-liberalism, which have worked together to naturalize suffering, undermine collective struggle, and obliterate hope. We concur with Amin (1998), who claims that such chants must be defied and revealed as absurd and criminal, and who puts the challenge we face in no uncertain terms: humanity may let itself be led by capitalism's logic to a fate of collective suicide or it may pave the way for an alternative humanist project of global socialism. The grosteque conditions that inspired Marx to pen his original critique of capitalism are present and flourishing. The inequalities of wealth and the gross imbalances of power that exist today are leading to abuses that exceed those encountered in Marx's day (Greider, 1998, p. 39). Global capitalism has paved the way for the obscene concentration of wealth in fewer and fewer hands and created a world increasingly divided between those who enjoy opulent affluence and those who languish in dehumanizing conditions and economic misery. In every corner of the globe, we are witnessing social disintegration as revealed by a rise in abject poverty and inequality. At the current historical juncture, the combined assets of the 225 richest people is roughly equal to the annual income of the poorest 47 percent of the world's population, while the combined assets of the three richest people exceed the combined GDP of the 48 poorest nations (CCPA, 2002, p. 3). Approximately 2.8 billion people—almost half of the world's population—struggle in desperation to live on less than two dollars a day (McQuaig, 2001, p. 27). As many as 250 million children are wage slaves and there are over a billion workers who are either un- or under-employed. These are the concrete realities of our time—realities that require a vigorous class analysis, an unrelenting critique of capitalism and an oppositional politics capable of confronting what Ahmad (1998, p. 2) refers to as ‘capitalist universality.’ They are realities that require something more than that which is offered by the prophets of ‘difference’ and post-Marxists who would have us relegate socialism to the scrapheap of history and mummify Marxism along with Lenin's corpse. Never before has a Marxian analysis of capitalism and class rule been so desperately needed. That is not to say that everything Marx said or anticipated has come true, for that is clearly not the case. Many critiques of Marx focus on his strategy for moving toward socialism, and with ample justification; nonetheless Marx did provide us with fundamental insights into class society that have held true to this day. Marx's enduring relevance lies in his indictment of capitalism which continues to wreak havoc in the lives of most. While capitalism's cheerleaders have attempted to hide its sordid underbelly, Marx's description of capitalism as the sorcerer's dark power is even more apt in light of contemporary historical and economic conditions. Rather than jettisoning Marx, decentering the role of capitalism, and discrediting class analysis, radical educators must continue to engage Marx's oeuvre and extrapolate from it that which is useful pedagogically, theoretically, and, most importantly, politically in light of the challenges that confront us. The urgency which animates Amin's call for a collective socialist vision necessitates, as we have argued, moving beyond the particularism and liberal pluralism that informs the ‘politics of difference.’ It also requires challenging the questionable assumptions that have come to constitute the core of contemporary ‘radical’ theory, pedagogy and politics. In terms of effecting change, what is needed is a cogent understanding of the systemic nature of exploitation and oppression based on the precepts of a radical political economy approach (outlined above) and one that incorporates Marx's notion of ‘unity in difference’ in which people share widely common material interests. Such an understanding extends far beyond the realm of theory, for the manner in which we choose to interpret and explore the social world, the concepts and frameworks we use to express our sociopolitical understandings, are more than just abstract categories. They imply intentions, organizational practices, and political agendas. Identifying class analysis as the basis for our understandings and class struggle as the basis for political transformation implies something quite different than constructing a sense of political agency around issues of race, ethnicity, gender, etc. Contrary to ‘Shakespeare's assertion that a rose by any other name would smell as sweet,’ it should be clear that this is not the case in political matters. Rather, in politics ‘the essence of the flower lies in the name by which it is called’ (Bannerji, 2000, p. 41). The task for progressives today is to seize the moment and plant the seeds for a political agenda that is grounded in historical possibilities and informed by a vision committed to overcoming exploitative conditions. These seeds, we would argue, must be derived from the tree of radical political economy. For the vast majority of people today—people of all ‘racial classifications or identities, all genders and sexual orientations’—the common frame of reference arcing across ‘difference’, the ‘concerns and aspirations that are most widely shared are those that are rooted in the common experience of everyday life shaped and constrained by political economy’ (Reed, 2000, p. xxvii). While post-Marxist advocates of the politics of ‘difference’ suggest that such a stance is outdated, we would argue that the categories which they have employed to analyze ‘the social’ are now losing their usefulness, particularly in light of actual contemporary ‘social movements.’ All over the globe, there are large anti-capitalist movements afoot. In February 2002, chants of ‘Another World Is Possible’ became the theme of protests in Porto Allegre. It seems that those people struggling in the streets haven’t read about T.I.N.A., the end of grand narratives of emancipation, or the decentering of capitalism. It seems as though the struggle for basic survival and some semblance of human dignity in the mean streets of the dystopian metropoles doesn’t permit much time or opportunity to read the heady proclamations emanating from seminar rooms. As E. P. Thompson (1978, p. 11) once remarked, sometimes ‘experience walks in without knocking at the door, and announces deaths, crises of subsistence, trench warfare, unemployment, inflation, genocide.’ This, of course, does not mean that socialism will inevitably come about, yet a sense of its nascent promise animates current social movements. Indeed, noted historian Howard Zinn (2000, p. 20) recently pointed out that after years of single-issue organizing (i.e. the politics of difference), the WTO and other anti-corporate capitalist protests signaled a turning point in the ‘history of movements of recent decades,’ for it was the issue of ‘class’ that more than anything ‘bound everyone together.’ History, to paraphrase Thompson (1978, p. 25) doesn’t seem to be following Theory's script. Our vision is informed by Marx's historical materialism and his revolutionary socialist humanism, which must not be conflated with liberal humanism. For left politics and pedagogy, a socialist humanist vision remains crucial, whose fundamental features include the creative potential of people to challenge collectively the circumstances that they inherit. This variant of humanism seeks to give expression to the pain, sorrow and degradation of the oppressed, those who labor under the ominous and ghastly cloak of ‘globalized’ capital. It calls for the transformation of those conditions that have prevented the bulk of humankind from fulfilling its potential. It vests its hope for change in the development of critical consciousness and social agents who make history, although not always in conditions of their choosing. The political goal of socialist humanism is, however, ‘not a resting in difference’ but rather ‘the emancipation of difference at the level of human mutuality and reciprocity.’ This would be a step forward for the ‘discovery or creation of our real differences which can only in the end be explored in reciprocal ways’ (Eagleton, 1996, p. 120). Above all else, the enduring relevance of a radical socialist pedagogy and politics is the centrality it accords to the interrogation of capitalism. We can no longer afford to remain indifferent to the horror and savagery committed by capitalist's barbaric machinations. We need to recognize that capitalist democracy is unrescuably contradictory in its own self-constitution. Capitalism and democracy cannot be translated into one another without profound efforts at manufacturing empty idealism. Committed Leftists must unrelentingly cultivate a democratic socialist vision that refuses to forget the ‘wretched of the earth,’ the children of the damned and the victims of the culture of silence—a task which requires more than abstruse convolutions and striking ironic poses in the agnostic arena of signifying practices. Leftists must illuminate the little shops of horror that lurk beneath ‘globalization’s’ shiny façade; they must challenge the true ‘evils’ that are manifest in the tentacles of global capitalism's reach. And, more than this, Leftists must search for the cracks in the edifice of globalized capitalism and shine light on those fissures that give birth to alternatives. Socialism today, undoubtedly, runs against the grain of received wisdom, but its vision of a vastly improved and freer arrangement of social relations beckons on the horizon. Its unwritten text is nascent in the present even as it exists among the fragments of history and the shards of distant memories. Its potential remains untapped and its promise needs to be redeemed.

In this paper, I analyze the cost–benefit calculations of this project in order to examine why and how these “failed articulations” between the universal demands of capital and locally complex socio-natures occur. I do so by examining the relation between discourse and value in the production of a carbon offset commodity, where I treat the cost–benefit calculations of this project as discursive statements that enable the creation of value. Doing so, I make two central arguments. First, I argue that these calculations are situated within a wider discursive formation concerning indigenous bodies and their relation to agriculture, where indigenous agriculture can and should be improved in particular ways. This discursive formation allowed for the carbon offset project to emerge as a solution framed by a specific socio-spatial problematic, where the “problem” of indigenous agriculture is posed in ways that call forth the production of commodified agricultural spaces as the rational solution. I posit that carbon offsets emerged within a discursive formation where the “indigenous land manager” and “indigenous agriculture” are spoken about in ways where the two should be aligned in ways that maximize the economic efficiency of the former through the spatial optimization of the latter. This way of speaking about agriculture and indigenous peoples, in turn, gives rise to commodified spaces, such as carbon offsets, as the most desirable way to make such an alignment occur.

Second, I draw on Marxian value theory to understand why these calculations, as discursive statements, were able to open up some spaces (rastrojos) for commodified carbon while foreclosing on others (cacao agroforestry). I argue that due to the global climate regime within which this particular carbon offset is situated (ie the Kyoto Protocol), these calculations were necessary to establish an offset's use value. In this case, the usefulness of a spatially bound, carbon forestry offset ultimately derives from its ability to contribute to a globally coordinated management of the world's carbon cycle. This means that a carbon offset's use value is not found in its qualitative characteristics, but instead, is found in the quantitative representations of its spaces. Thus, the project's shift to rastrojos did not derive from calculations needed to make these spaces commensurable for exchange, but rather, the project's final form resulted from calculations that were needed for these spaces to achieve commensurability with a globally conceived carbon cycle. This is a discursive transformation that is necessary for offsets to become useful as commodities within the framework of the Kyoto Protocol. In short, I seek to explain this project's origins and trajectory through the relation between the local discursive formation that allows for these calculations about indigenous agriculture to be understood and taken seriously, and the global orientation of this commodity that required a process of valuation that ultimately altered the specific spaces that were available to be commodified.

If the United States remains the command centre of global capitalism, a multiplicity of crises has been flashing up on its screens in the past few months. Let’s consider them in ascending order of importance from the perspective of US decision makers. First, there was Israel’s latest war on Gaza—not a crisis for Washington, more the kind of violent outburst through which a kind of equilibrium is re-established, but for growing numbers of people around the world an outrage and a crime. Secondly, there was the war—now halted by an uneasy ceasefire—between the pro-Western government in Kiev and Russian-backed forces in south eastern Ukraine. Thirdly, there is the US bombing campaign to halt the advance of the jihadi group that calls itself the Islamic State, but which we will continue to call ISIS, in Iraq and Syria. And, finally—not yet a crisis, but potentially the most serious conflict—there’s the increasingly intense interstate competition in East Asia in response to China’s growing power.1 One interesting thing about this list is that two of the items—the war in Ukraine and the rise of ISIS—wouldn’t have figured in anyone’s predictions at the beginning of 2014. This is a sign of the volatility of the international situation, which is a consequence of power shifts among the leading capitalist states. But it’s also quite frightening. Christopher Clark in his influential recent book on the outbreak of the First World War argues that, despite the polarisation of Europe into two rival power blocs, in the summer of 1914 “the danger of a conflict between the great alliance blocs seemed to be receding, just as the chain of events that would ultimately drag Europe into war got underway”.2 War can take even the greatest powers by surprise, as we can see now in Barack Obama’s reluctant redeployment of US military power in Iraq. But for many on the left internationally this reluctance is feigned. For them, the unifying theme in these different crises is the assertion of American power to maintain and even expand Washington’s global domination, in the process pulverising states such as Iraq, Syria and Ukraine. This diagnosis often dovetails into a revival of what was called “campism” during the Cold War—that is, political support for states that, because they resist the US geopolitically, are seen as in some sense progressive. The Ukraine war has, as Rob Ferguson discusses elsewhere in this issue, been accompanied by an outburst of campism, with the highly respected Russian Marxist Boris Kagarlitsky going so far as to claim about the Russian-backed forces in south eastern Ukraine: “What is happening in Novorossiya is a revolutionary movement, though it’s not yet a revolution in terms of social change”.3 In the Middle East campism takes the form of support for the alliance orchestrated by the Islamic Republican regime in Iran, including notably the regime of Bashar al-Assad in Syria and Hizbollah, the Shiite Islamist movement that dominates Lebanon. More generally, many on the left look to Russia and China as counterweights to the US. The problem with this complex of ideas is simultaneously factual, theoretical and political. We’ll return to the politics. Factually: the US has often harboured expansionist designs. This was true in broad terms after the Cold War, when successive administrations sought, by exporting neoliberalism and expanding NATO, to create a global order economically and politically dominated by the US.4 And, more specifically, the administration of George W Bush in the neocons’ heyday after 9/11 sought to seize Iraq in order to entrench US domination of the Middle East, topple hostile regimes in Syria and Iran, and spread bourgeois democracy neoliberal style to the Arab world.5 But the Middle East today is shaped above all by the failure of this vainglorious project and by the Arab revolutions and the reactionary attempts to crush them. The Obama administration is profoundly conscious of this. This doesn’t mean that it won’t inflict more evils on the region, or collude in them (for example through its support for Israel), but, as we will see in more detail below, its current aims are primarily defensive. Understanding imperialism today The problem is also theoretical. For much of the left imperialism is equated with US domination. But this is not how it was understood by the classical theorists of imperialism—and not because they were writing a hundred years ago, long before the onset of American hegemony. For them, imperialism had two crucial features. First of all, it involved a system of geopolitical rivalries among the Great Powers. As the Liberal J A Hobson (a major influence on Lenin) put it, “the novelty of recent imperialism regarded as a policy consists chiefly in its adoption by several nations. The notion of a number of competing empires is essentially modern”.6 Secondly, the emergence of these rivalries was a consequence of a specific phase of capitalist development, as Lenin underlines in his pamphlet Imperialism. The concentration and centralisation of capital that Marx identifies in Capital, Volume I as one of the main tendencies arising from the capitalist accumulation process led by the beginning of the 20th century to the intersection of economic and geopolitical competition. Capitals, increasingly large in scale and operating internationally, came to depend on the support of their nation state to defend their interests; equally, to maintain themselves against their rivals, states had to promote the industrial capitalist economies that alone could provide complex modern weapons systems and the infrastructure of war. The growing interdependence of states and capitals gave rise to the intensification of geopolitical rivalries that exploded into world war in August 1914 and that produced a second bout of carnage in 1939-45.7 So from a Marxist perspective, modern imperialism is a system of intercapitalist competition and rivalry. Lenin’s key contribution to the theory was the concept of uneven development. Capitalism doesn’t grow uniformly: some states and regions leap ahead; others lag behind. This unevenness defines the hierarchy of power in the world. But, crucially, the uneven development of capitalism redistributes power among the leading states. This means that the balance of power is constantly shifting, creating the circumstances of new conflicts. The key geopolitical development in the first half of the 20th century was the shift in relative power between Britain, hitherto the dominant capitalist state, and the US and Germany; today another shift in relative power is taking place between the US and China. Changes of this nature, Lenin insisted, make the peaceful transnational integration of capitals that Karl Kautsky called “ultra-imperialism” and Michael Hardt and Toni Negri have more recently named “Empire” impossible: the redistribution of power among states undermines the deals that would be needed to make such integration work.8

Ecologists and environmental scientists often take “overpopulation” and the subsequent exploitation of natural resources as the point of departure in their prognoses of environmental crises. While refusing to look beyond what seems to be the roots of the malaise, they argue that overpopulation compounded with unbridled industrial activity leads to environmental disasters such as global warming, climate change, acid deposition, soil degradation, air and water pollution. There is no denying that overpopulation, and indeed, the massive industrial outputs of both developed and developing countries, do have irrevocably deleterious impact on the climate. But what is often omitted in their diagnoses is the environmental hazards inherent to the dynamics of capitalism as a universal economic system. Capitalism - defined as production for profit for a competitive market - is an economic system in which the private profit-maximization motif lies at the core of its virtues and maladies. Its virtues are embedded in its impressive productivity and growth rates. The profit-maximization logic induces the producers to specialize in what they are best at producing and invest in the latest technologies to increase productivity and efficiency. The profit-maximization motif also provides incentives for entrepreneurs to increase productivity on a large scale to optimize profit. The same profit-maximization motif, too, enables economic agents to allocate resources in such ways that are conducive to growth and dynamism. Compelled by the competitive force of the market, firms find it rational to invest in cost-cutting technologies, which allow them to resist the pressure that comes for their peers in the marketplace. This altogether leads to a virtuous cycle of efficiency, productivity, and optimized profit. Examples of success in terms of growth rates are numerous in the modern history of capitalism. The massive industrial development of England in the 18th and 19th centuries, the United States as early capitalist developers prior to the two devastating World Wars, the remarkable growth of rates western Europe (i.e. Germany, France, Italy,) in the post-war era followed by Japan in the last half a century, the rise of the East Asian Tigers and, of course more recently, the Chinese leviathan are the conspicuous examples of stunning economic development in contemporary capitalism. So what is the problem? After all, if capitalism has been very successful in projecting itself as the engine of productivity and growth, why should it be blamed for environmental disasters? It is herein that the very core dynamics of capitalism that generate its virtues, also cause its maladies. Capitalism requires endless growth of production in order to remain stable, raise the standards of living, and produce ample employment for the young and increasing world population. Production itself is contingent on consumption. Without sufficient consumption, which creates more demands for production, the production cycle would be paralyzed. Consumption is thus the flip side of the coin of a thriving production cycle. But while capitalism stimulates tremendous productivity rates, it biases productivity towards more consumption to ensure that the production process is not impeded. Therefore, mass consumption - or consumerism - is not merely a cultural phenomenon. It is embedded in the core tenets of capitalism as an economic system. The higher consumption, the higher production, the higher production, the higher sales, and with higher sales, higher profits are generated, which are largely re-invested in the sustainability of the firm or the business-unit. But if we live in a finite planet with limited ecological and natural resources that ought to be preserved for sustainability purposes, how than, can we resolve this contradiction? If the carrying capacity of the world cannot sustain endless consumption and production, there is clearly a contradiction at stake here. This contradiction naturally raises the more important question: how to reconcile the quandary of maintaining a capitalist system that meets necessary growth rates to remain stable on the one hand, and simultaneously contain the environmental hazards that threaten our planet on the other? To answer these questions, there are three propositions about the very nature and dynamics of capitalism that have to be examined. First, firms in a capitalist setting are under enormous pressure to cut costs, because if they don’t, their competitors will. Since their competitors cut costs to be able to reinvest in the firm’s growth and thereby, become more competitive, if one firm refrains from doing so, it will be soon pushed out of the market by others. As the economic sociologist Erik Wright of the University of Wisconsin-Madison said, one way of cutting cost is to project some of that cost onto the environment. Imagine, for instance, throwing a can of soft drink from a car window because this is a low-cost way of disposing of a can, and being totally indifferent to its negative impact on others. The same behaviour is often adopted by large businesses. The market dynamics in capitalism do not provide any mechanisms in themselves to prevent this behaviour; it requires some forms of non-market intervention either by state or by organized social forces. States have shown that they are reluctant to or deliberately ignore taking measures against this. In democratic countries, however, social forces are given relative freedom to organize around this cause. Social activists with a whole slew of interests - including the environment - usually take it upon themselves to draw public attention to this issue. Through mass organization, environmentalists can pressure the state to impose certain regulations on firms to conduct activities that are less detrimental to the environment. Secondly, the price of non-renewable natural resources under capitalism is usually organized around relatively short-term horizons with almost no account of the future value of these finite resources. The rate of greenhouse gas emissions into the atmosphere has increased sharply since the mid-1990s, driven mainly by strong economic growth in developing countries that often consume massive natural resources such as oil, gas, and other minerals. China and India have grown rapidly in the past two decades and the bedrock of development in their industrial settings are non-renewable natural resources, which happen to generate one of the highest rates of carbon gas emissions. Non-renewable natural resources are often underpriced since their future value is not accounted for in the dynamics of supply and demand. In an influential study for the World Bank, Margaret Slade shows in great detail that the enormous negative “externality” - negative impact - that’s inflicted onto the environment as a result of extraction, production, and the use of minerals is largely due to underpricing those natural resources. Which is to say, the massive minerals consumption that’s responsible for a large fraction of world pollution are not taken into account in the prices that they are offered in the market. The upshot is that buyers tend to overconsume these resources. The fluctuating price of oil that’s produced by the Persian Gulf States is the most telling example. Source: World Resources Institute What can be done? As I alluded earlier, the architecture of market under a capitalist setting does not provide any mechanisms to counter the environmental hazards that the large-scale production and consumption processes inflict on the environment. Hence, there have to be non-market interventions to contain or reduce environmental damages. This non-market intervention can be either state or social forces. Of course, one could argue that it is state’s responsibility to regulate this inimical behaviour of the firms against the environment by heavily taxing those firms that violate the environmental regulations that the state sets in place. But the problem is that states in democratic and non-democratic countries alike often overlook this, or deliberately neglect it due to the pressure that comes from the influential business groups. In most countries, the state is subservient to the bindings of the influential business groups. The state needs to provide incentives for business groups to ensure that they remain as dynamic as possible to ensure economic growth and ample employment opportunities. So the state on its own would be reluctant to take measures that might reduce the profit rates of business-groups for the sake of the environment. Take for instance the Chinese or the Indian states who are totally oblivious to the environmental disasters around the industrial settings in those countries. Hence, obliging the states to intervene is going to be a challenge. Individual firms, too, do not have an incentive to oversee regulations that protect the environment because they are compelled to maximize profit under the tremendous pressure of market competition. There remains another form of non-market intervention, which is social forces. In democratic states people enjoy a certain level of freedom for social activism. Thus, in democratic states, environmental activists can form disruptive movements that seriously demand far more stringent regulations to save the environment. In some cases, they may be able to compel the state to impose restrictions on the firms and inspect them regularly. This seems to be a viable option, but the responsibility to organize around the cause will be endured by the activists to organize massive public demonstrations to pressure the state and the firms. International cooperation is also key for effective abatement. But achieving meaningful international cooperation has proven to be a hard task. Even though nations have a common interest in preventing climate change, many are reluctant to reduce carbon emissions voluntarily. The recent Paris Agreement on Climate Change, in which 195 countries adopted the first-ever universal, legally binding global climate deal, is indeed a very positive move towards international cooperation to protect the planet. In short, the market mechanisms under capitalism do not provide incentives for preserving the environment. Firms are constantly threatened by market competition to cut costs and optimize profit. The environment thus falls pray to the compulsive market behaviour of the capitalist mode of production. Without the intervention of non-market entities such as the state, international organizations and social forces, capitalism as an economic system simply will not safeguard our planet.

Over the past 70 years, more than 300 new infectious pathogens have emerged in territory where they’ve never been seen before. In the last two years alone, two ghastly viruses—Zika and Ebola—have burst their geographic borders, surging into vulnerable new populations. And just this past April, a bacterial strain of E. coli impervious to last-resort antibiotics was discovered in a patient in Pennsylvania and in the tissues of a slaughtered pig, heralding a potential new era of untreatable infections that could transform modern medicine. Experts are bracing for a catastrophic pandemic—one that will sicken 1 billion, kill 165 million, and cost the global economy trillions of dollars. The conventional wisdom is that this rising threat is primarily a biomedical problem. But with newly emerged pathogens, some of our most important defenses are political.

To protect populations from epidemics for which no treatments exist, we need to address the underlying conditions that fuel their eruptions. In neglected communities like the Fifth Ward, that means the garbage crisis, poor drainage, and substandard housing, among other things. But for decades, we’ve refused to take the necessary action.

A key function of organic intellectuals is to respond to crises. To remain hegemonic, organic intellectuals must develop policy responses that are seen to mitigate problems, while leaving the core system intact. Otherwise, the bloc is left open to competition from counterhegemonic forces. This is precisely how neoliberalism overthrew Keynesianism in the 1970s, and how Keynesianism itself overthrew the laissez-faire order of the early 20th century. It is therefore instructive to analyze the Dialogue’s output in times of crisis. One example is the Dialogue-sponsored report Washington Contentious released in 2000 during the midst of the Argentinean financial crisis. The group’s Latin directors (to say nothing of the report writers themselves) would have been keenly aware of the crisis of legitimacy this event entailed—a crisis which could disrupt the accumulation circuits in which they were integrated. It is therefore unsurprising that the social dislocations caused by the crisis—soaring unemployment, public debt, severe poverty, and the annihilation of local savings—compelled the authors to propose limited Keynesian interventions, including an enhanced social safety net, food stamps, unemployment insurance, expanded public schooling, and progressive taxation (Birdsall & de la Torre, 2001). Yet interestingly, and in keeping with Truitt’s (2000) account, these limited reforms continue to be couched in a broader, over-arching continued support for neoliberal economics. According to the report (Birdsall & de la Torre, 2000), the limited Keynesian reforms proposed cannot be deficit financed, even in times of crisis, as “fiscal indiscipline . . . has high costs for the poor” (p. 22) The Dialogue thereby recommends that capital flight be mitigated through “market-supplied insurance” (p. 35) and the maintenance of government “stabilization funds” (p. 36). Banks and governments would have to build countercyclical provisions in times of high credit growth, thereby providing countercyclical liquidity Countries should also be given automatic “access to international lines of credit” in times of crisis (ibid.). Stability can be improved through a further “internationalizing [of] the banking system,” as the “entry of first-rate foreign banks can rapidly enhance the domestic banking system’s stability and resiliency” (p. 37). Finally, stability can be further enhanced through “continuing efforts to diversify trade and increase foreign direct investment, including negotiating multilateral, regional, and bilateral agreements” (ibid.). As policy responses, these recommendations are extraordinary. The immediate cause of the crisis was capital flight facilitated by financial deregulation and the elimination of capital controls. In the similar East Asian crisis of 1998, Malaysia ignored IMF advice and imposed capital controls to great success, while those nations that followed IMF dictates suffered greatly (Harvey, 2005). Yet capital controls would undermine regimes of flexible accumulation dependent on unrestricted capital flows. The Dialogue thereby rejects controls, simply advising that governments and banks hold enough money to ensure that the impact of capital flight is lessened in times of crisis. This is to be achieved through new insurance mechanisms and access to lines of credit—both of which will presumably be supplied by the same global financial firms that helped instigate the crisis in the first place, or possibly from the IFIs that originally imposed neoliberal reforms. Finally, the Dialogue’s cure for instability is not less, but more neoliberal financial and trade deregulation and integration. Another example is the 2009 report A Second Chance: U.S. Policy in the Americas, prepared for U.S. policy makers in the wake of the 2008 global financial-economic crisis (IAD). Aware that the crisis represents a further blow to regional neoliberal legitimacy, the report openly concedes that “popular frustration may lead to diminished support for democracy and markets” throughout both North and Latin America. Also, the report endorses a familiar suite of policy measures designed to placate Latin American publics, once again demonstrating which concessions are necessary to generate a transnational elite rolling consensus. The report (2009) advises the United States to restore its credibility on democracy and human rights; normalize relations with Cuba; help its regional partners in “confronting crime, violence, and drugs”; and reform immigration policy. However, the underlying thrust of proposed economic policies continues to be broadly neoliberal. Admitting that support for “new trade initiatives will not be a priority for either the United States or most Latin American nations in the coming period,” the report (IAD, 2009) recommends that the United States quickly “gain congressional ratification of the already negotiated and signed free trade agreements with Colombia and Panama,” while preserving “hemisphere-wide free trade” as a “critical long-term goal” (p. 10). On a similar note, the United States is urged to “avoid protectionist measures that would reduce Latin American access to U.S. markets and investments” (p. 9). Furthermore, the United States must “help ensure Latin America’s continuing access to necessary credit and capital” by “mobiliz[ing] support for an expansion of the resources and programs of . . . the Inter-American Development Bank, World Bank, IMF, and Andean Development Corporation” (p. 7). Three of the 4 IFIs mentioned are direct funders of the Dialogue, and all have worked to implement neoliberal reforms that laid the groundwork for the financial bubbles that caused the current crisis. No mention is made of the enhancement and/or support for the proposed “Bank of the South.” Only the traditional financial institutions of neoliberalism hold the key to global financial stability. “There is no alternative” (p. 7).

The globalization of economies has produced accelerated patterns of movements of capital, goods, services, materials, and labor, simultaneously resulting in the accelerated production and circulation of anxieties constituted around these movements. Neoliberal organizing of health manifests itself in the development and deployment of surveillance, management, and coordination networks that see health primarily in the realm of threats posed by diseases dispersed through global networks, networks of bioterror, emerging infectious diseases, and biowarfare (Salinsky, 2002). The response of health systems therefore is formulated in the form of network structures of biodefense and homeland security, performing functions of surveillance, information gathering, and information dissemination, constituted around the economic logics of growth and efficiency. The protection of the economic opportunities of globalization becomes the function of public health systems formulated in the narrative of geosecurity and implemented in the form of programs controlled by the police-military complex within structures of biodefense, biosecurity and geosecurity.

With this emphasis on security, the mandate for health depicts continuity with colonial implementations of public health administration to manage erstwhile colonies, increasingly being set within the military metaphor of health, turning health into a geosecurity threat for the new configurations of empire, and therefore, deploying military interventions to address health issues. Consider the following depiction in a report issued by the U.S. National Intelligence Council (NIC) that offers a picture of the global health threats posed by infectious diseases:

Fortunately, the corporate capitalist fairytale of neoliberalism has been challenged all over the globe by students, labor organizers, intellectuals, com munity activists, and a host of individuals and groups unwilling to allow democracy to be bought and sold by multinational corporations, corporate swindlers, international political institutions, and those government politi cians who willingly align themselves with multinational, corporate interests and rapacious profits. From Seattle to Genoa, people engaged in popular resistance are collectively taking up the challenge of neoliberalism and reviving both the meaning of resistance and the sites where it takes place. Political culture is now global and resistance is amorphous, connecting students with workers, schoolteachers with parents, and intellectuals with artists. Groups protesting the attack on farmers in India whose land is being destroyed by the government in order to build dams now find themselves in alliance with young people resisting sweatshop labor in New York City. Environmental activists are joining up with key sections of organized labor as well as groups protesting Third World debt. The collapse of the neoliberal showcase, Argentina, along with numerous corporate bankruptcies and scandals (notably including Enron), reveals the cracks in neoliberal hegemony and domination. In addition, the multiple forms of resistance against neoliberal capitalism are not limited by a version of identity politics focused exclusive ly on particularized rights and interests. On the contrary, identity politics is affirmed within a broader crisis of political culture and democracy that con nects the militarization of public life with the collapse of the welfare state and the attack on civil liberties. Central to these new movements is the notion that neoliberalism has to be understood within a larger crisis of vision, meaning, education, and political agency. Democracy in this view is not limited to the struggle over economic resources and power; indeed, it also includes the creation of public spheres where individuals can be educat ed as political agents equipped with the skills, capacities, and knowledge they need to perform as autonomous political agents. I want to expand the reach es of this debate by arguing that any struggle against neoliberalism must address the discourse of political agency, civic education, and cultural politics as part of a broader struggle over the relationship between democratization (the ongoing struggle for a substantive and inclusive democracy) and the global public sphere. We live at a time when the conflation of private interests, empire build ing, and evangelical fundamentalism brings into question the very nature, if not the existence, of the democratic process. Under the reign of neoliberal ism, capital and wealth have been largely distributed upwards, while civic virtue has been undermined by a slavish celebration of the free market as the model for organizing all facets of everyday life (Henwood 2003). Political culture has been increasingly depoliticized as collective life is organized around the modalities of privatization, deregulation, and commercialization. When the alleged champions of neoliberalism invoke politics, they substitute "ideological certainty for reasonable doubt," and deplete "the national reserves of political intelligence" just as they endorse "the illusion that the future can be bought instead of earned" (Lapham 2004a, 9,11). Under attack is the social contract with its emphasis on enlarging the public good and expanding social provisions?such as access to adequate health care, housing, employment, public transportation, and education? which provided both a safety net and a set of conditions upon which democracy could be experi enced and critical citizenship engaged. Politics has been further depoliticized by a policy of anti-terrorism practiced by the Bush administration that mim ics the very terrorism it wishes to eliminate. Not only does a policy of all embracing anti-terrorism exhausts itself in a discourse of moral absolutes and public acts of denunciation that remove politics from the realm of state power, it also strips community of democratic values by defining it almost exclusively through attempts to stamp out what Michael Leeden, a former counter-terror expert in the Reagan administration, calls "corrupt habits of mind that are still lingering around, somewhere"(qtd. in Valentine 2001, para.33). The appeal to moral absolutes and the constant mobilization of emergency time coded as a culture of fear configures politics in religious terms, hiding its entanglement with particular ideologies and diverse rela tions of power. Politics becomes empty as it is reduced to following orders, shaming those who make power accountable, and shutting down legitimate modes of dissent (Giroux 2004).

Even closer inspection of platform entity behaviour reveals more subtle techniques of design used to control user subservience. This includes the use of dark patterns, or ‘instances where designers use their knowledge of human behavior (e.g., psychology) and the desires of end users to implement deceptive functionality that is not in the user’s best interest’.157 Day and Stemler define dark patterns as ‘subtle design choices in digital interfaces intended to elicit certain behaviours from users’.158 Harry Brignull defines dark patterns as ‘tricks used in websites and apps that make you do things that you didn't mean to, like buying or signing up for something’. 159 Dark patterns might include, for example, emphasising in bright colours an ‘Accept’ option in an early and prominent position and making the user click through a design maze to decline that option. Brignull warns that ‘when you use websites and apps, you don’t read every word on every page - you skim read and make assumptions. If a company wants to trick you into doing something, they can take advantage of this by making a page look like it is saying one thing when it is in fact saying another’. 160 Brignull lists a number of examples on the website darkpatterns.org such as Privacy Zuckering (named after Facebook CEO Mark Zuckerberg) where you are ‘tricked into publicly sharing more information about yourself than you really intended to.; and Disguised Ads which are ‘Adverts that are disguised as other kinds of content or navigation, in order to get you to click on them’.161 Facebook’s settings provide an example of a dark pattern. Here, users can access a ‘Privacy Checkup’ which gives users limited options to control the secondary usage of their data.162 Users are given an illusion of control. Here, users can ‘remove’ apps and websites they have used Facebook to log into and can disallow recognition of their face in pictures uploaded to Facebook. Perhaps counterintuitively, an additional module titled ‘your ad preferences on Facebook’ allows users to disable the provision of specified information, such as ‘relationship status’ to advertisers. However, users can add additional information to their Facebook profiles such as their ‘hometown’ and ‘city’ and there is no way to disallow the provision of such information which falls outside the categories specified by Facebook. Therefore, users’ ability to control the secondary use of their data is not straightforward: they are required to access multiple modules and their ability to control the secondary use of their data is incomplete.163 Further, there is no option which simply disallows third party access to user data.164 Although the presence and accessibility of these limited user-controls gives the outward perception of transparency, a genuine sentiment to empower users is lacking. These controls do not give users a functional and comprehensive way to control how their data is used by Facebook and shared with third parties. So far, we have discussed the way that the platform entities have used the tools or technology they control to accrue and exert power over users. This form of mass social control or power has led to enormous economic returns for the platform entities. This economic power has transposed into greater market and political power.165 Law is also a technology.166 The platform entities have also shown themselves to be adept at using law to their advantage, like so many of the technologies over which they have direct control. The next part discusses the way that platform entity power has evolved in a sociotechnical environment governed by laws. 4. Law and Power Law is a technology, that, like a platform or an app can be used to effect outcomes.167 Platform entities have been able to wield the technology of law, in the same way that they have been able to manipulate their own technologies as discussed in Part 3. Law is just another means to an end. Kapczynski noted that ‘one of the great challenges of understanding the new concentrations of corporate power and the informational age is mapping the laws that help sustain them, precisely because this is a domain that is commonly seen as operating beyond law.’168 The best lawyers in the world advise the platform entities. Their terms of service and privacy policies read like masterclasses in legal drafting. Consequently, platform entities operate largely within the parameters of existing law. But that is not to say that they have not stretched the law and the norms that underpin it to suit their purposes. In shaping their business models in the way they have, the platform entities have normalised the subversion of long-held understandings of freedom of contract, and equality of bargaining power in contractual dealings, assumptions of rationality, full and relevant information, and efficiency in economics, and consent in privacy. Platform entities have applied, worked around, created, and shaped laws to suit their purposes, and their global reach and corporate and entity structures thwart local accountability. Again, this is not new behaviour. Cohen discusses historical large scale Polanyian countermovements to shifts in political economies underpinned by legal systems.169 Barker too reminds us that: The dawn of the new industrial age in the nineteenth century was as much a power struggle between the aristocratic and industrial classes … as it was between a conception of contract “as fairness” and contract as “laissez-faire, free market exchange.170 One aim of law is to circumscribe power. For example, employment law, sale of goods law, and consumer law are all, in part, designed to rebalance power imbalances between employer and employee, vendor and purchaser, and supplier and consumer, respectively. Tort law gives rights to those injured by civil wrongs. Barker reminds us of the power inherent in laws such as misrepresentation, duress, and undue influence that ‘operate … in instances in which one person compels, deceives or influences another in ways that bring about disadvantage to the one and advantage to the other’.171 Yet laws also allow the powerful to exist in the first place. Deakin et al argue that ‘law is not simply an expression of power relations but is also a constitutive part of the institutionalized power structure, and a major means through which power is exercised’. 172 Property laws allow those with property to exclude those without it. Similarly, trespass protects those with property (in either chattels or land) from intrusion on their property. Law also creates power. Barker argued that ‘all modern private law is an expression of the power of the state—a system of rules pronounced by either judicial, or legislative authority’. 173 Public laws such as constitutional and administrative laws also establish power. Laws establish governments, police and defence forces, and other entities, that are given more powerful positions than the average citizen. Using substantive law in the way set out in this paper is not the only way that powerful entities operate within the law and legal system. An examination of the procedural side of law also requires some examination, but a full analysis is outside the scope of this paper. Platform entities, with their unlimited financial resources can control legal processes by hiring or conflicting-out the best lawyers, running multiple technical points that delay processes and add expense, and settling when necessary to avoid creating precedent law that might inhibit similar future conduct Finding cases that allow courts to make judgments that change the law is difficult when a large percentage of cases settle before they reach a final verdict.174 This paper does not consider the tactical use by platform entities of the judicial process.. Setting onerous dispute resolution mechanisms that inhibit direct access to courts and setting inconvenient jurisdictions to govern the applicable law in contracts are also effective ways of curtailing dissent. Each of these issues as they relate to platform entities will require further research, but, at another time. The balance of this Part discusses some of the ways that the platform entities have interacted with law in four contexts. First, where laws exist platform entities have been able to situate themselves within the law and even use the law to their advantage. Second, where law exists, but applying it would require some novel argument for it to apply. Third, that the law exists and applies, but it is simply not enforced for several reasons that we discuss. Fourth, as Zuboff claims, that the platform conduct does not neatly fit within the confines of existing law (or law does not exist). 4.1. Law exists and Platform Entities Comply Zuboff asserted that ‘Google’s freedom strategy was its ability to discern, construct, and stake its claim to unprecedented social territories that were not yet subject to law’.175 She referred to the ‘lawlessness’ of surveillance capitalism by reference to Arendt’s description of the plundering of Africa and Asia in the mid-nineteenth century: ‘The secret of the new happy fulfillment was precisely that economic laws no longer stood in the way of the greed of the owing classes’. 176 Zuboff repeats the themes of the platform entities in response to attempts to regulate their conduct: … that technology companies such as Google move faster than the state’s ability to understand or follow, that any attempts to intervene or constrain are therefore fated to be ill-conceived and stupid, that regulation is always a negative force that impedes innovation and progress, and that lawlessness is the necessary context for “technological innovation”.177 However, as Cohen points out, platform entities entered a world abounding in law. 178 Cohen argued that the public domain in raw materials applies to the taking of raw data.179 She noted that ‘preexisting legal constructs relating to entitlement and disentitlement have a way of filling in the empty spaces that surround new technologies and business models’.180 But, as Cohen acknowledges, ‘Power is both pragmatic and protean, defying efforts to describe its workings and cabin its reach. Given rules of engagement, it seeks out gaps; confronted with prohibitions, it finds workarounds’.181 When referring to lawlessness then, perhaps Zuboff was referring to the gaps in existing laws such as competition law, consumer law, and privacy law. The failure of these laws to fully respond to the conduct of platform entities gives the impression of lawlessness. While the platform entities operate between these gaps, the sobering reality of, and the frustration surrounding, platform entities is that much of their behaviour is legal (or is not (yet) illegal). The 2019 ACCC Report into the market power of digital platforms in Australia gives concrete examples of the power held by these platform entities over competition in the media and advertising services markets, and the impact on consumers and advertisers.182 The ACCC Report illustrates the way that platform entities have been able to operate in accordance with, among and between various laws. Two laws that have proven to be very effective and beneficial for the platform entities are contract and privacy law.

The ‘Big Data strategist’ for Oracle, one of the largest software companies in the world, has said, ‘Data is in fact a new kind of capital on par with financial capital for creating new products and services. And it’s not just a metaphor; data fulfils the literal textbook definition of capital.’ (OracleANZ, 2015). This statement points to an emerging political economic shift in which data is created, collected, and circulated as capital. The previous section described how data has been critically analysed in the context of capitalism – implicitly or explicitly – as a commodity. However, as businesses and government bodies begin treating data as capital, there is a need for examining the characteristics and dynamics of ‘data capital.’ This section aims to do so by first reviewing two theories of capital, from Karl Marx and Pierre Bourdieu, then using them to analyse data. In Capital, Volume 1, Marx describes capital as a relationship between money (M) and commodities (C); namely, the ways they circulate and transform, which he simplifies into two general formulas. The first formula represents consumption, C-M-C: a commodity is sold for money which is then used to buy another commodity. Therefore, C-M-C is the cycle of using money to turn one qualitatively different thing (e.g. labour power) into another qualitatively different thing (e.g. coffee). The cycle of consumption is motivated by the use-value of a commodity and it is completed when money is turned into a commodity. The second formula represents capital, M-C-M′: money is used to buy a commodity which is then sold for more money. ‘The value [of money] originally advanced, therefore, not only remains intact while in circulation but increases its magnitude, adds to itself a surplus-value, or is valorised. And this movement converts it into capital’ (Marx, 1990: 252). The cycle of capital is motivated by exchange-value and the cycle does not complete because capital requires continuous circulation. When money is turned into a commodity for consumption, rather than invested to make profit, it ceases to be capital. In addition to ‘money capital’ (i.e., invested funds), Marx distinguishes between two forms of ‘real capital’ employed in the creation of surplus value. Constant capital is the means of production for commodities (i.e., factories, machinery, raw materials, etc.). Variable capital is the means of subsistence for labour power (i.e., the costs of hiring workers). Expanding on Marx’s foundational analysis, Bourdieu theorized two new forms of capital that are distinct from what he terms economic capital, ‘which is immediately and directly convertible into money and may be institutionalized in the form of property rights’ (1986: 242). The other forms Bourdieu theorized, cultural capital and social capital, stand alone in their own right while also being ‘convertible, in certain conditions, into economic capital’ (p. 242). They are, at their root, ‘transformed, disguised forms of economic capital’ (p. 251). Cultural capital contributes to a person’s status and success in ways that go beyond the idea of ‘human capital,’ which focuses on monetary investment in education and skills. Cultural capital is a representation of class and tends to be invested by a person’s family and transmitted from a person’s domestic environment. Bourdieu (1986) identifies three types of cultural capital: embodied (e.g. character traits), objectified (e.g. art collection), and institutionalised (university degree). Social capital, according to Bourdieu (p. 248), ‘is the aggregate of the actual or potential resources which are linked to possession of a durable network of more or less institutionalized relationships of mutual acquaintance and recognition.’ This form of capital accrues by being included in privileged groups, whether that means being inducted through rites of passage (e.g. fraternal orders) or through rites of inheritance (e.g. noble lineage). When people talk about the value of ‘who you know’ and ‘networking,’ they are talking about having and developing social capital. Building from Marx, we can now frame two common analyses of data in terms of a debate about what economic form data represents. On one hand, data is cast as a digital raw material – constant capital – necessary in the production of commodities. It is hard to read media articles and business reports about data without seeing it called ‘the new oil.’ For instance, the cover of a 2017 issue of The Economist (2017b) proclaims ‘The World’s Most Valuable Resource’ above an illustration of offshore oil platforms labelled with the names of major digital platforms like Facebook, Google, and Uber presumably drilling into an ocean of data. On the other hand, data is cast as a commodity produced by the digital labour of people posting on Facebook, clicking on Google, exercising with Fitbits, and all the other things we do that create data and that data is created about (Fuchs, 2014; Till, 2012). The cliché about the ‘free’ services provided digital platforms is that, ‘If you’re not the customer, you’re the product.’1 Through the work of using platforms and devices, people are turned into commodities that take the form of personal data, which is sold to advertisers and data brokers. In the age of mass media, this was termed the ‘audience commodity’ (Smythe, 1981). Now with social media it is called the ‘data double’ among other coinages (Haggerty and Ericson, 2000). Therefore, at the risk of oversimplification, these two ways of analysing data – as raw material and as product of digital labour – can be recast as a debate about the relationship between real capital and commodities in the digital economy. Building from Bourdieu, I suggest a better framing of data is as a form of capital that is distinct from, but has its roots in, economic capital. Data capital is more than knowledge about the world, it is discrete bits of information that are digitally recorded, machine processable, easily agglomerated, and highly mobile. Like social and cultural capital, data capital is convertible, in certain conditions, to economic capital. But, as the next section ‘Deriving value from data capital’ shows, not all value derived from data is necessarily or primarily monetary. Data capital is institutionalised in the information infrastructure of collecting, storing, and processing data; that is, the smart devices, online platforms, data analytics, network cables, and server farms. Importantly, these characteristics of data capital mean it can be continually captured and circulated, thus data collection is driven by the logic of capital accumulation as described by Marx. ‘The circulation of money as capital is an end in itself, for the valorization of value takes place only within this constantly renewed movement. The movement of capital is therefore limitless’ (Marx, 1990: 253). This unending accumulation of capital, represented by M-C-M′-C-M″-C-M‴… , is a defining feature of capitalism. In digital capitalism, data is not a substitute for money, but is rather elevated and put ‘on the same level as financial capital,’ as a report by Oracle and MIT Technology Review Custom (2016: 2) states. The imperative, then, is to constantly collect and circulate data by producing commodities that create more data and building infrastructure to manage data. The stream of data must keep flowing and growing. Ultimately, continuing the cycle of data capital becomes an intrinsic motivation, a driving force, for firms. As Marx explains, ‘Use-values must therefore never be treated as the immediate aim of the capitalist; nor must the profit on any single transaction. His aim is rather the unceasing movement of profit-making’ (Marx, 1990: 254). The same can be said of data. The capitalist is not concerned with the immediate use of a data point or with any single collection, but rather the unceasing flow of data-creating. This point is illustrated by the fact that data is very often collected without specific uses in mind. Indeed, the practice of collecting data first and figuring it out later is increasingly a core part of how businesses and government bodies operate. ‘It does not matter that the amounts [of data] collected may vastly exceed a firm’s imaginative reach or analytic grasp. The assumption is that it will eventually be useful, i.e. valuable’ (Fourcade and Healy, 2017: 13). At a public talk in early 2017, Andrew Ng, an artificial intelligence researcher who has held top positions at Google, Baidu, and Coursera, was candid about this prevailing logic of data accumulation: ‘At large companies, sometimes we launch products not for the revenue, but for the data. We actually do that quite often ... and we monetize the data through a different product’ (Stanford Graduate School of Business, 2017). The conditions needed to convert data capital into economic capital may never arrive, but that does not stop the cycle of accumulation. The shift towards data capital takes advantage of the ideological and regulatory groundwork that has been laid since at least the 1980s to create a political economic landscape conducive to finance capitalism (Konczal and Abernathy, 2015). Under neoliberal governance, financial capital is treated as if it exists in transnational space beyond borders and governance (Major, 2012). The same attitudes are directly applied to data capital. This view was crystallised by Carl Bildt (2015), the former Prime Minister of Sweden and chair of the Global Commission on Internet Governance, in an op-ed for the Financial Times: ‘Barriers against the free flow of data are, in effect, barriers against trade.’ Bildt was rebuking proponents of ‘digital sovereignty’ rules in Europe, which would require non-EU companies to keep data about EU citizens in servers that are geographically based in Europe. Any restraints on the flow of data are said to hinder economic growth and technological innovation (Morozov, 2015). Trade deals like the Transatlantic Trade and Investment Partnership and the Trans-Pacific Partnership (aim to) enshrine the free flow of data across countries and continents (Selby, 2017). Like finance, data is now governed as an engine of growth. If financial firms are free to shuttle capital from country to country, then similarly technology corporations must also be free to store and sell data wherever they want. This means, for example, that a company could collect the personal information of Americans, store the data in Taiwan, and sell it in Europe (Rossiter, 2017). The focus on data and datafication should not be seen as usurping financialisation, but rather as adding new sources of value and new tools of accumulation. There is a long history of crossover between innovations in information technology and innovations in finance (MacKenzie, 2018). Far from being in competition with each other, Wall Street and Silicon Valley are converging around data capital as the new frontier of accumulation and circulation.

From the moment Marx and Engels urged workers of the world to unite at the climax of the Communist Manifesto, the goal of international revolution has been at the core of Marxist politics.

International revolution isn’t just a romantic dream, but an urgent necessity. It’s the only means by which capitalism can be permanently uprooted and replaced with socialism. This is because capitalism, unlike previous class societies, is a globally integrated system. “For the first time in history”, wrote British Marxist Colin Barker of this phenomenon, “capitalism has created a genuinely world society, where all our lives are entwined together in a common history and a common fate”.

The global climate is unraveling at rates far beyond the predictions of scientists. The studies are so common by this date, and the scientific evidence so pervasive going back at least half a century, that there is no need to cite sources about this fact. The oceans are dying, the fisheries are becoming exhausted. The forests are dying. They are devastated through human overuse, logging, wildfires, acid rain, and rapidly changing climate conditions.

Agricultural lands are drying up and losing productivity, the land, water, and air are polluted. Artificial human-made chemical compounds are found in the tissues of every living creature on Earth, with unknown synergistic effects. The oceans are rising, displacing millions of coastal dwellers and submerging prime agricultural lands.

One of the myths surrounding neoliberalism is that it envisages a minimal role for the state. This myth, peddled by advocates and critics of neoliberalism alike, confuses the arguments about laissez-faire and the minimal state advanced by adherents of classical liberalism in the nineteenth century with the more nuanced views on the state propounded by theorists of neoliberalism. Of course, the goal of proponents of neoliberalism is to create a society founded upon the market – a market order – but this is not incompatible with a strong state; indeed, it demands a strong, active state to construct the necessary conditions for the establishment and maintenance of that market order. Thus, inter alia, the state must create markets where they do not already exist and ensure their continued operation; guarantee property rights; and ensure the absence of monopolies. But it needs to do more than this to ensure that societies function on the basis of markets. The state must also shape social relations accordingly and construct a specific worldview that enables the market to define the manner in which societies operate in practice. As Loïc Wacquant has noted: ‘[W]hat is “neo” about neoliberalism [is] the reengineering and redeployment of the state as the core agency that sets the rules and fabricates the subjectivities, social relations and collective representations suited to realising markets’.2 Wacquant’s analysis of neoliberalism is helpful for two reasons. First, in emphasising the importance of the state, he identifies neoliberalism as a political, as opposed to an economic, project. In other words, while the establishment of a market order is the goal of neoliberalism, this is accomplished through politics, rather than the product of neoclassical economics. Second, he points to the need to develop ‘a “thick” sociological conception’ of neoliberalism that identifies both the institutional means deployed by the state to establish, maintain, and impose the market order on society, and the types of consequences this has for citizenship. For Wacquant, those institutional means are not confined to the rules of the marketplace, but also include the criminal justice system – especially the prison, the ‘disciplinary’ social policy of workfare, and the ‘trope of individual responsibility’. Whether or not one agrees with the relevance of the particular institutional means or ‘logics’ he identifies, this manner of conceptualising neoliberalism and what he calls the crafting of the neoliberal state succeeds in highlighting the importance of concrete state institutional mechanisms in shaping the material components of those phenomena (e.g. the construction of new markets) and their symbolic components (‘the capacity that the state has to trace salient social demarcations and produce social reality through its work of inculcation of efficient categories and classifications’3 ). If we wish to understand market societies, we need to attend to the different ways and means through which the state constructs these. How does law fit within this analysis of neoliberalism and the crafting of the neoliberal state? While Wacquant himself includes (presumably the criminal) courts as part of the penal wing of the neoliberal state that he explores in his recent work, there is little discussion of the role that these, or law and legal categories more generally, play in neoliberalism and the construction of the neoliberal state. And yet for the pioneers of neoliberalism law was to play a foundational role in the development and implementation of the neoliberal vision. Two dimensions of this can be identified. First, for neoliberals, markets are creatures of law. Their existence demands, and depends on, the presence of a legal framework suited to this end. In Marxist terms, though contrary to traditional Marxist teachings, law, in this vision, is not a part of the superstructure determined by the economic base; rather, law is an inherent aspect of the base – law founds the market order, rather than being determined by it. This has consequences for common assumptions surrounding the nature of economic entities and their regulation. Thus, the property bought and sold on the market, the contracts through which the sale and purchase are made, and the companies involved in selling and buying the property are all, in the first instance, legal entities, rather than, as is commonly assumed, objects that exist outside of the law and are only subsequently regulated, or not, by the law. As Walter Lippmann, whose eponymous Colloquium is often cited as constituting the beginnings of neoliberalism, wrote: Only by recognizing that legal rights are declared and enforced by the state is it possible to make a rational examination of the value of any particular legal right. The latter-day liberals did not see this. They fell into a deep and confusing error when they failed to see that property, contracts, corporations, as well as governments, electorates, and courts, are creatures of law, and have no existence except as bundles of enforceable rights and duties.4 Second, for neoliberals law must take the form of a set of formal abstract general rules that apply equally to everyone’s conduct. This is necessary because the market order is based on the idea that individuals are free to pursue their different objectives via the market. The alternative – social law – defeats this purpose as it involves the creation of rules designed to further a particular, predetermined end such as the redistribution of wealth between classes. Here, law would prescribe individual conduct rather than respect liberty of action. The market order, then, is what Hayek refers to as a nomocracy (governed by law), as opposed to a teleocracy (governed by an end or ends). It is what he called a ‘private law society’ where the formal abstract general rules – the ‘rules of just conduct’ – that constitute the market order are synonymous with ‘the essential content of all contemporary systems of private law, [“]freedom of contract, the inviolability of property, and the duty to compensate for damage due to his fault[”]’.5 In his influential book The Road to Serfdom, Hayek was already setting out this vision of law in the course of his argument that competition – the defining norm of neoliberalism and what Hayek called ‘the principle of social organisation’ – required a rigorous legal framework for its successful and beneficial operation. It was a crucial part of what he endorsed as the state’s ‘planning for competition’, as opposed to ‘planning against competition’, which involved the ‘central direction of all economic activity according to a single plan, laying down how the resources of society should be “consciously directed” to serve particular ends in a definite way’.6

b. Cancellation Practice Trademark law provides the opportunity for trademark owners to challenge registered marks on a number of grounds through a cancellation proceeding.197 Similar to the rules concerning oppositions, a party bringing a cancellation action benefits from broad standing requirements198 and robust grounds 2015] 853 for challenging a registration.199 One important difference between cancellations and oppositions is that a mark registered for five years is only subject to cancellation on a limited number of grounds.200 However, the Lanham Act does allow challenges “[a]t any time” based on “the registered mark . . . being used by, or with the permission of, the registrant so as to misrepresent the source of the goods or services on or in connection with which the mark is used.”201 This provision allows trademark owners another opportunity to prevent other parties from infringing their marks. Section 1064 of Title 15 also empowers the Federal Trade Commission (FTC) to bring cancellation actions against registered marks on specific grounds, such as functionality and misrepresentation of the source of goods or services.202 If a trademark troll problem were to develop, the FTC could bring an action to cancel a mark that was used improperly.

REMOVING ENFORCEMENT FROM THE EQUATION Trademark owners must proactively ensure that no third-party uses infringe on their marks or create consumer confusion in the marketplace.180 Increasingly though, trademark owners use concern about consumer confusion as to mask their true aim to snuff out marketplace competition. Because bolstering trademark strength is currently achieved in part by the active pursuit of alleged infringers and consumer confusers, the concealment of the underlying desire to squash competition continues. Therefore, removing mark strength from the likelihood of confusion equation and, in turn, the amount of protection afforded to the mark would force much of the negative behavior to cease. As previously mentioned in this Note, one of the roots of trademark law is to protect consumers.181 Consumers rarely benefit from the stifling of competition.182 However, trademark owners are. Protecting and growing market share by increasing goodwill with consumers makes trademarks valuable in the marketplace.183 However, diminishing consumer choice by policing others’ use of a mark displays neither consumer identification, goodwill, nor mark strength. It only shows that a mark owner possessed enough resources to over-monitor its mark. Therefore, trademark law should cease relying on a mark’s commercial strength to justify additional protection.

SANCTIONSAGAINST HABITUAL AND ATTEMPTED OVER-ENFORCERS A clear issue attached to trademark bullying is the lack of a disincentive to bully. While some frameworks are available to courts to impose sanctions against attorneys for ethical and conduct violations, none exist exclusively within the trademark ecosystem to solve this issue.166 Adopting a new statutory regime targeting this issue would benefit courts by more clearly defining problematic behaviors and therefore more effectively combat bullying behavior. In the interim, courts can still enforce trademark bullies through conventional Rule 11, 28 U.S.C. § 1927, and Section 35 of the Lanham Act.167 Courts could maintain the necessary dexterity to apply the appropriate sanctions to attorneys, clients, or both. Historically, however, judicial sanctions are rare in trademark actions.168 Fortunately, a bill introduced in the Minnesota State House of Representatives provides an excellent starting point. The cornerstone of House Bill No. 2996 is that it provides an alternative, cost-conscious strategy to traditional civil trademark litigation in creating an administrative avenue to pursue.169 The bill allows either party to request a settlement conference in this proposal.170 The meeting must occur within thirty days of the request, and it allows for virtual attendance, depending on the parties’ locations.171 All of these are incredibly pertinent provisions. First, the allowance to opt into an administrative proceeding can significantly reduce the costs to mark owners (especially small businesses) when defending their marks. Additionally, the time constraint placed on commencing the meeting provides the opportunity for quick resolution between both parties. Finally, virtual flexibility is imperative to allow geographically diverse parties to appear before t decisionmaker efficiently and reduce costs for both parties to defend their marks. The proposed legislation outlines procedural and evidentiary allowances during the hearing.172 Notably, the bill allows for the admission of expert witness testimony, evidence that supports a mark’s use in commerce, and any pertinent industry practice standards.173 These types of evidence are all the similar kinds that parties present in traditional suits.174 This provides both parties with adequate opportunity to advocate for their marks effectively. The proposed legislation also allows administrative law judges to issue summary judgment with or without the request of either party, and the bill’s language explicitly outlines this use for “case[s] of trademark bullying.”175 This allows for increased efficiency in dispute resolution and a speedier identification of bullying behavior. The most interesting and arguably impactful aspect of this proposed legislation is its relentless emphasis on its purpose to produce meaningful outcomes and prevent the frivolous expenditure of resources. For example, subdivision 4 of Section 4 highlights the need for parties to “be prepared” and “meaningful[ly]” participate in settlement discussions.176 Additionally, subdivision 9 of Section 4 dictates that alleging parties who refuse to participate will be fined and held responsible for the defending party’s costs and attorney’s fees.177 These and other provisions underscore the demand placed on parties to actively and meaningfully engage in the process to prevent the expense of time, money, and other resources. Most important, though, is the proposed statute’s acknowledgment of the importance of aggregation. Trademark bullying persists because of the continuous and overzealous presence of the bully. Therefore, the ability of the court system to award treble damages for those it identifies as engaging in bullying behavior provides a substantial threat to would-be bullies.178 Additionally, the ability of the court to award treble damages after two instances of bullying in ten years cuts what could become prolific bullies off early and ideally prevent parties from further engaging in abusive practices.179 Overall, the proposed Minnesota statute creates an excellent skeleton for a federal statutory enactment to combat trademark bullying.

Concern over monopoly power has waxed and waned over time, among both policy makers and the public. At times, the decades-long trend of corporate consolidation has been celebrated. But misgivings about market power lingered even when they were politically unfashionable, and in the past decade they have come to the forefront. Antitrust enforcement and market power are popular topics in the media and in Washington, where trust-busting seems to be one of the few issues Democrats and Republicans agree on, including Senators Elizabeth Warren (Democrat of Massachusetts) and Bernie Sanders (Independent of Vermont) and Congressman Ken Buck (Republican of Colorado). In February, Buck and Congressman David Cicilline (Democrat of Rhode Island, who has since resigned from Congress) established the Congressional Antitrust Caucus, citing Big Tech as part of its raison d’être. An interventionist approach to ensuring competitive markets has become more obvious in the executive branch as well. Former president Donald Trump dipped a toe into the antitrust arena by signing the Competitive Health Insurance Reform Act, passed by Congress on a bipartisan basis, into law in 2020. The law removed an exemption from federal antitrust laws for the health insurance industry that had been in place since 1945. A resurgence of antitrust In recent years, US policy makers, judges, and regulators have become more aggressive about making and pursuing claims of anticompetitive behavior or mergers. Under Trump’s successor, Joe Biden, antitrust authorities have continued to be markedly more aggressive in opposing mergers and accusing companies of wielding monopoly power. Their success in court has been mixed. In 2022, judges ruled against the Department of Justice in merger challenges involving U.S. Sugar, defense contractor Booz Allen, and UnitedHealth Group, and in February 2023, the Federal Trade Commission failed to stop the acquisition of VR company Within by Facebook’s parent company, Meta. The DOJ has also lost a string of cases in which it has accused employers of conspiring to fix wages.

The liberal use of the power to cancel deters acts of trademark “trolls,” such as Stoller, who have failed to make legitimate use of their marks. This in turn results in long-term savings. Cancellation cuts off the presumptions associated with registration and thus may result in fewer cases filed by trademark trolls. The fewer frivolous trademark infringement suits that are filed, the fewer judicial recourses and time that are wasted. In Central Manufacturing, and every other case in which Leo Stoller had filed suit, the end result was the same: dismissal or a grant of summary judgment. In addition to deterring trademark trolls from filing suit, cancellation protects producers from the threat of suit and/or licensing demands for the use of a trademark that is no longer valid. In Central Manufacturing, for example, the plaintiff had “repeatedly sought ways to get around the law’s prohibition of stockpiling of unused marks, and this case is no different.”185 By cancelling the plaintiffs mark, the party loses a valuable instrument in negotiation: the party no longer has a conceptually concrete basis for threatening to file suit. Where a registration is at issue, parties are much more likely to take the threat seriously than if only common law rights are asserted. Thus, the trademark troll loses an important bargaining chip when attempting to extort licensing fees from unsuspecting, innocent users of marks: the ability to claim ownership rights to, and presumptions associated with, registration of a trademark.

It was not, however, until World War I that the full democratic peace proposition became central to foreign policy. Wilson's war message in April 1917 -- in which he declared that the battle between autocracies and democracies would establish "the principles of peace and justice" -- was the clarion call. The clash between democracy and autocracy continued to shape policy as the decades went on. The behavior of the United States during the Cold War, for example, was often motivated by a belief that spreading liberal values would yield peace. As Secretary of State John Foster Dulles declared in his 1953 Senate confirmation hearing, "We shall never have a secure peace or a happy world so long as Soviet communism dominates one-third of all the peoples that there are." President John F. Kennedy echoed that theme in his 1963 speech in West Berlin, declaring that "when all are free, then we can look forward to that day when this city will be joined as one and this country and this great Continent of Europe in a peaceful and hopeful globe." But that same month, in a powerful address at American University, Kennedy warned of the complementary dangers of ideological confrontation with the Soviet Union. "Let us not be blind to our differences -- but let us also direct attention to our common interests and the means by which those differences can be resolved," he said. "If we cannot end now our differences, at least we can help make the world safe for diversity."TIME AFTER TIME As liberalism endured and spread, intellectuals began empirically testing whether democratic peace theory actually held true. In 1939, the American journalist Clarence Streit published a qualitative historical analysis to see whether liberal democracies tended to maintain peace among themselves. Discerning that the answer was yes, he proposed that the decade's leading democracies form a federal union, which would help protect them from fascist powers. In 1972, Dean Babst, building on Quincy Wright's magisterial^ Study of War from 30 years earlier, carried out a statistical analysis that also suggested a correlation between democracy and peace. In 1976, Melvin Small and J. David Singer confirmed this finding but demonstrated that democratic peace was limited to relations between democracies. Republics, they showed, were still prone to fight autocratic regimes. In the decades since, international relations scholars have continued to study the democratic peace paradigm. They have shown that the relationship between democracy and peace is statistically significant even when controlling for proximity, wealth, and trade. They have determined that the theory holds even when states attempt to constrain each other. Academics have advanced a wide variety of explanations for why the concept is so sturdy. Some have argued that part of the reason lies in the disproportionate influence that international institutions have with liberal countries. Research shows that democracies tend to delegate a lot of policymaking to complex multilateral bodies, such as the European Union and the World Trade Organization, in part because their leaders can use these groups to entrench policies before cycling out of office. Other scholars have argued that liberal norms favoring peace, human rights, and respect for fellow democracies hold sway over policymakers and publics. And still others have pointed to the benefits of trade and economic interdependence associated with relations among capitalist democracies. States that frequently trade, after all, will lose wealth if they fight one another. Still, democratic peace theory has attracted plenty of critics. Henry Farber and Joanne Gowa have pointed out that there are other forces at work in stopping wars between democracies. During the Cold War, for example, NATO'S need to protect itself from the Soviet bloc ensured that Western Europe cooperated -- although the region's post-Cold War peace suggests more than collaborative containment is at work. Other scholars have pointed out that none of the factors used to explain democratic peace theory can stop war on its own. States that are deeply involved in international institutions, after all, do launch invasions. Peaceful norms and ideas work only if democracies heed them in the policymaking process, yet they are often ignored. The shared decision-making powers of republics should encourage deliberation, but the division of powers and rotation of elites can also lead democracies to send mixed signals, putting other states on edge. And economic benefits can be achieved through plunder, not just through trade. Powerful democratic states can have rational incentives to exploit wealthy, weak democracies, especially if the latter are endowed with natural resources or strategic assets such as shipping lanes. Rational material interest is not enough to explain why xenophobic democracies have not tried to conquer democracies of other ethnic groups. But put all the explanatory factors together, and democratic peace theory coheres. When governments are constrained by international institutions, when political elites or the electorate are committed to norms of liberty, when the public's views are reflected through representative institutions, and when democracies trade and invest in one another, conflicts among republics are peacefully resolved.

B. Big Tech trademarks and U.S. consumer privacy concerns Consumers are subjected to a high degree of privacy invasion by Big Tech, which allows for “persistent collection and misuse of consumer data.”142 Because there are no other widely available online platforms accessible to consumers, Big Tech has the power to offer less privacy protection than they otherwise would in a free and competitive market.143 This permits Big Tech to lower the quality of services and goods by simultaneously monetizing and selling consumer data to third parties.144 Big Tech monopoly power harms U.S. democracy because consumers do not know what type of data is being collected or how data is being stored by Big Tech.145 For example, Facebook cements its market dominance by not only vigorously enforcing its trademark rights against perceived competitors, but also by actively acquiring intellectual property rights of its significant competitors.146 By acquiring its competitors, Facebook is able to impose high switching costs to its consumers, effectively retaining a vast majority of its billions of users.147 Because Facebook products are used by their users every day, Facebook is able to gather a significant amount of personal information about their users.148 Facebook monetizes this massive trove of information by selling its users’ information to third party advertisers, generally selling the information to the highest bidder. This dramatically harms the experience of Facebook’s users since the user is just as likely to see a sponsored ad as a post from their family or friend.

Despite this deteriorated service, Facebook users are still unlikely to change providers because (1) there are no readily available alternatives, and (2) the high switching cost imposed by Facebook oftentimes mean severing ties with other applications, such as Spotify.149 Facebook’s dominance in the social networking market is harmful to democracy because Facebook can obstruct the flow of accurate information. A democracy depends not only on free speech, but informed information. No opinion can be informed unless the facts which substantiate that opinion are true. Facebook’s trademark recognition misleads users into believing Facebook provides a superior product. Part of the consumer assumption is that the information found on Facebook is accurate. Unfortunately, much of the information which circulates on Facebook is false or misleading in nature and contributes to false discourse of the state of the nation.150 Exploitive third parties ranging from snake-oil salesmen to nefarious foreign governments such as China and Russia have attempted, with great success, to exploit Facebook’s lax content control to influence the discourse of our democracy. By allowing third parties to influence the opinions of virtually all Americans, Facebook’s lax content control poses significant challenges to a free and open democracy as the flow of false information undermines the population’s faith in their elected officials and therefore, the democratic process.