Category: Biopolitics
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By Gordon Hull Last time, I introduced the exchange between Mark Lemley and Robert Merges on IP theory, and made the initial case that Lemley is essentially arguing for the theoretical primacy of neoliberal biopower in intellectual property. Merges, as will hopefully become evident below, is more interested in grounding IP in juridical notions of…
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By Gordon Hull A couple of years ago, Mark Lemley, one of the most influential and prolific of intellectual property scholars, published his “Faith-Based Intellectual Property,” a manifesto against what he characterizes as non-utilitarian or non-empirical theories of intellectual property. In other words, “participants on both sides of the IP debates are increasingly staking out…
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By Gordon Hull Frank Pasquale and I have a new paper forthcoming in Biosocieties, "Toward a critical theory of corporate wellness." Here is the abstract: In the U.S., “employee wellness” programs are increasingly attached to employer-provided health insurance. These programs attempt to nudge employees, sometimes quite forcefully, into healthy behaviors such as smoking cessation and…
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By Gordon Hull I have a new paper up on SSRN, "The Subject and Power of Bioethics," which was invited to a forthcoming issue of the Journal of Ethics, Medicine and Public Health. The abstract is: The present paper argues that late work of Michel Foucault is helpful in understanding contemporary bioethics. Specifically, Foucault’s writings…
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by Gordon Hull On Wednesday night, the Trump administration implemented as much of its long promised Muslim Ban as it thought the Supreme Court would allow. Travelers from a list of six countries who did not have a “bona fide” connection or “close familial relationship” to someone in the U.S. would be banned. The administration…
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The Supreme Court ruled unanimously today (well, an opinion and a concurrence) that a provision in the Lanham Act banning “disparaging” trademarks violated the First Amendment. In the case in question, an Asian-American musician named Simon Tam had attempted to register his band’s name, “The Slants,” in a clear effort to reclaim the slur. The…
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In another chapter of its ongoing battle with the Federal Circuit (and the second in a week), the Supreme Court (SCOTUS, I will refer to the Federal Circuit as the CAFC) ruled last Tuesday in Impression Products v. Lexmark International that the sale of a patented product “exhausts” the patent-holder’s claim to derive patent revenue…
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Patent law seems like an easy place to talk about biopower. After all, it has been possible to patent life forms for some time now, and large numbers of patents are issued for products that directly affect life, as in the case of pharmaceuticals and other medical innovations. Biopolitical implications of patent law are thus…
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Foucault reminds us that biopolitics is describes a kind of power structure according to which some will be compelled to live (or have their lives as members of a favored population optimized), while others will be allowed to die. As he puts it, “the ancient right to take life or let live was replaced by…
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