A post-neoliberal imaginary of the state lays the groundwork necessary to achieve it. Writing the state off as “inevitably neoliberal” is self-fulfilling.

This depiction of the state as a neoliberal Leviathan has become commonsensical. I will not here attempt to defend an alternative account of the modern state, but I do want to suggest grounds to suspect that this neoliberal image does not serve us well. For example, as I will show, neither side in the current debates over IP sustains an image of the state as irredeemably neoliberal because a capable, flexible, and responsive state is essential to each side’s competing vision of the good life. Insofar as our theories require a decent state, it seems important to be able to describe one and to offer an account of the conditions that might sustain it. Moreover, there is some evidence in the domain of information policy that the modern state can be capable and efficacious, as well as open to democratic claims-making.

In the domain of IP scholarship, and undoubtedly also beyond, we need a serious, curious engagement with the state of the modern state. That engagement ought not ignore evidence that the modern state is vulnerable to ineptitude, and can be commandeered to achieve undemocratic aims. It should insist, instead, that we better understand the conditions in which this is more or less likely to be true. Ultimately, the field of IP law needs a post-neoliberal imaginary of the state, not because we are sure that we can bring such a state about but because we cannot bring it about if we assume it away.