Julie Cohen Speaks on Her New Book “Between Truth and Power”

At the Seminar in Private Law on February 19, 2019, Julie Cohen, Mark Claster Mamolen Professor of Law and Technology at Georgetown Law Center, discussed her forthcoming book Between Truth and Power, and the relationship between law and new technologies.

Cohen presented her book as a reaction to what happens when the irresistible force of technology meets the immovable object of law. In her view, some lawyers fear technology and see law as a force to tame it, while others believe that technological innovation should not be impeded and law should get out of the way. Both perspectives, according to Cohen, fall short of explaining what the interplay between both actually is. Instead, she said, what we should focus on is understanding how the law already shapes technological developments and how technology has changed the law.

According to Cohen, society has been undergoing a transformation from industrial to informational capitalism. Drawing on economic historian Karl Polanyi’s work, she studied the political economy of appropriation of newly valuable resources. Cohen argued that just as commodification of labor, land and money came together with the transition to industrial capitalism, we now observe “datafication” of these three, together with a fourth, new resource, namely “data-ified” people.

Online platforms — including social media, streaming entertainment and the sharing economy — are simultaneously tools for providing services and for collecting information about people. Cohen explained how, through legal entrepreneurship, companies that rely on collecting and processing of data turn information, algorithms, and ideas into de facto property. This happens despite the fact that traditionally, intellectual property law would not grant protection over these objects. Drawing from Foucault and theory of copyright, Cohen argued that we are witnessing creation of a new bio-political public, where companies running online platforms can freely take and reuse information and ideas from users.

What matters, according to Cohen, is that many companies are not interested in individuals, but in patterns and probabilistic ways of predicting behavior. Just as with the previous Great Transformation described by Polanyi, we might see a double-movement: resistance on the side of the people, potentially expressed through changes in law and creation of new protective mechanisms.

Each spring, the Seminar in Private Law brings speakers from academia and practice to Yale Law School to present papers addressing a common theme. The 2019 Seminar is devoted to asking how technological change restructures the fundamental concepts and categories of private law. The Seminar is organized by Daniel Markovits, Guido Calabresi Professor of Private Law, and the Yale Law School Center for Private Law, which promotes teaching and research in contracts, property, and torts at Yale Law School and in the broader legal community.