Portraying the state as immutably neoliberal cements that outcome by yielding the terms of the debate to the market and pushing students towards private employment

The capable state is a concept that we seem to be unable to live without,

though this is admittedly not the same thing as showing that such a state does or

could exist. There are, however, empirical reasons to resist the notion that the

state is incapable of playing a major and positive role in information policy, and

not just because the state must be involved in any such scheme, including that of

creating exclusion rights. Might it be that the modern state is in fact better at

directly promoting innovation than it is at creating private property rights that

are well-configured do the same? After all, the same state that gave us the

“Mickey Mouse” Copyright Term Extension Act, which lengthened copyright

protection by two decades, not only prospectively but also retroactively (to

better incentivize Walt Disney, God rest his soul?), has also funded agencies

like the National Institutes of Health, the National Science Foundation, and

(more ominously), Defense Advanced Research Projects Agency, which are

widely credited with the foundational advances that made the networked

information age and the biotech age possible.66 Governments today fund not

only blue sky research, but also “mission-oriented research,” with particular

goals in fields like health and energy, where their role is critical not because

possible applications are distant in time, but because their social value is hard to

internalize even in the presence of private intellectual property rights, or

because the private sector is more risk-averse than is government.67

It is in some sense no surprise that all of this is not well-profiled in recent

debates about information policy and private IP law, particularly in the United

States. After all, as Erik Reinart has recently put it:

[S]ince its founding fathers, the United States has always been torn between two

traditions, the activist policies of Alexander Hamilton (1755-1804), and Thomas

Jefferson’s (1743-1826) maxim that ‘the government that governs least, governs

best.’ . . . With time and usual American pragmatism, this rivalry has been resolved by

putting the Jeffersonians in charge of the rhetoric and the Hamiltonians in charge of

policy.68

This pragmatic accommodation may have a dangerous aspect, if it intersects

with neoliberal trends in a way that brings about a state that is less empowered

and less worthy of our respect. It would not be surprising if there were a selffulfilling dimension to the neoliberal image of the state. If common wisdom

suggests that the state is an inertial Leviathan, will the best young minds want to

labor in its service?69 And if skepticism about the abilities of the state leads us to

relegate it largely to facilitating the functions of the market, would it be a

surprise if this new state were more susceptible to capture?

In these few pages I can do no more than generate some doubt about the

neoliberal image of the state that enjoys such currency in contemporary IP

literature and beyond. But I hope I have done that. What is needed in IP

scholarship—as elsewhere in legal studies—is a postneoliberal conception of the

state, but one that is attuned to the fact that some aspects of the contemporary

state in fact resemble the nightmarish neoliberal image. A call to bring the state

back in is not a call to dislodge the generative new work being done on the

commons, but rather to suggest that there is today no viable form of a

prepolitical commons, and that theorists of the commons need to make space in

both their accounts of the commons, and in their articulations of the political

domain that they wish to bring into being, for a postneoliberal image of the

state. Can we conceive of—even if we cannot easily achieve—a state that is

capable of constraining the proliferation of exclusion rights in information and

that can support social ordering beyond markets? Is it possible to imagine a

state that could temper the tendencies of certain market formations to promote

ghastly inequality, environmental collapse, and political corruption of the first

rank?70 If the answer is no, then we should fear grievously for our collective

future. In that case, the market and the commons will not be able to save us

from the neoliberal Leviathan, and the future of ideas will be bleak indeed.