I’d been looking forward to reading Between Truth and Power: The Legal Constructions of Informational Capitalism by Julie Cohen. I start out sympathetic to the key argument that the legal system is the product its society – the material economic and technological and also the political conditions. Therefore current legal contests reflect underlying changes in these same forces, and the final legal system for the digital era is still in the process of being shaped. Law and the implementation of technologies in society influence each other – the ‘rules of the game’ are not exogenous.

There are indeed some interesting insights in the book. I most enjoyed some of the earlier parts, which are more descriptive of the extension of the idea of intangibles, ideas, as “intellectual property”. This is not new – James Boyle for one has written superbly about it. But the detail here is interesting, plenty of nuggets about the US legal system and how truly, gobsmackingly awful it can be.

I also appreciated the chapter on regulation, and its basic point that many regulators are now having to “move into the software auditing business”, and indeed may have to evaluate software controls designed to evade regulation. Implications here for analysing regulation in the digital economy in terms of hyper-asymmetric information and algorithmic complexity.

On the whole though, I was disappointed. The book is almost entirely US focused – and is upfront about it – but the US system is distinctive even compared to other common law jurisdictions. Nowhere else, for instance, has its 1st Amendment fetishism. It would have been terrific to have some reflections on the extra-territoriality of US lawmaking and court judgements in the digital domain.

The book has some tantalising reflections about the limitations of law, based on concepts of individual rights, in the face of collective effects: as I’ve been arguing for a while eg here, digital power spells the end of individualism, including what we all now call the neoliberalism that gave birth to it. More on this would have been great.

There’s also just too much sub-Zuboffian rhetoric (rather than argument) about the ‘surveillance-industrial complex’. I’m all too willing to believe this exists, so all the more disappointed when the analysis is so vague. There’s also a lot of allusion to Foucault – “biopolitics”, “governmentality” –  in the book without it ever – as far as I spotted – actually citing and deploying The Birth of Biopolitics.

All in all, there’s a lot of detail in this book that didn’t, at least for me, cohere. Too many trees, not enough overview of the wood. Perhaps it’s time for me to try the highly-praised The Code of Capital by Katarina Pistor.

The question of how to govern and regulate new technologies has long interested me, including in the context of a Bennett Institute and Open Data Institute report on the (social welfare) value of data, which we’ll be publishing in a few days’ time. One of the pressing issues in order to crystallise the positive spillovers from data (and so much of the attention in public debate only focuses on the negative spillovers) is the development of trustworthy institutions to handle access rights. We’re going to be doing more work on the governance of technologies, taking a historical perspective – more on that another time.

Anyway, this interest made me delighted to learn – chatting to him at the annual TSE digital conference – that Stephen Maurer had recently published Self-governance in Science: Community-Based Strategies for Managing Dangerous Knowledge. It’s terrifically interesting & I recommend it to anyone interested in this area.

The book looks at two areas, commerce and academic research, in two ways: historical case study examples; and economic theory. There are examples of success and of failure in both commercial and academic worlds, and the economic models summarise the characteristics that explain whether or not self-governance can be sustained.

So for instance in the commercial world, food safety and sustainable fisheries standards have been adopted and largely maintained largely through private governance initiatives and mechanisms, synthetic biology much less so, having an alphabet soup of competing standards. Competitive markets are not well able to sustain private standards, Maurer suggests: “Competitive markets can only address problems where society has previously addressed some price tag to the issue.” Externalities do not carry these price tags. Hence supply chains with anchor firms are better able to bear the costs of compliance with standards – the big purchasing firm can require its suppliers to adhere.

Similarly, in the case of academic science the issue is whether there are viable mechanisms to force dissenting minorities to adhere to standards such as moratoria on certain kinds of research. The case studies suggest it is actually harder to bring about self-governance in scientific research as there are weaker sanctions than the financial ones at play in the commercial world. Success hinges on the community having a high level of mutual trust, and sometimes on the threat of formal government regulation. The book offers some useful strategies for scientific self-governance such as building coalitions of the willing over time (small p politics), and co-opting the editors of significant journals – as the race to publish first is so often the reason for the failure of research moratoria to last.

The one element I thought was largely missing from the analytical sections was the extent to which the character of the technologies or goods themselves affect the likelihood of successful self-governance. This is one aspect that has come up in our preparatory work – the cost and accessibility of different production technologies. The analysis here focuses on the costs of implementing standards, and on monitoring and enforcement.

This is a fascinating book, including the case studies, which range from atomic physics to fair trade coffee. It isn’t intended to be a practical guide (& the title is hardly the airport bookstore variety) but anybody interested in raising standards in supply chains or finding ways to manage the deployment of new technologies will find a lot of useful insights here.