US sports streaming

'From Meerkat to Periscope: Does Intellectual Property Law Prohibit the Live Streaming of Commercial Sporting Events?' by Marc Edelman in (2016) 39(4) Columbia Journal of Law and the Arts comments 

On February 27, 2015, San Francisco entrepreneur Ben Rubin announced the launch of his live streaming video application, Meerkat. Named after “the cute but carnivorous mongoose native to Africa,” Meerkat allows users to upload video footage from smartphones to the Internet for worldwide, instantaneous viewing. In the weeks following Meerkat’s launch, Twitter unveiled a similar online application, Periscope, which allows users to watch live videos for up to twenty-four hours after their initial broadcast. Twitter’s more recent entry into the live streaming market has enhanced the credibility of this new technology. Furthermore, it has placed live streaming on the radar of major private equity firms.

Although the American business community generally characterizes live streaming as a favorable technological development, the use of live streaming technologies to broadcast (or rebroadcast) commercial sporting events is more controversial. According to one sports network analyst, the advent of live streaming could potentially result in a “Napster-type thing” involving mass infringement of sports enterprises’ intellectual property rights. Another sports industry expert cautioned that “[t]his kind of technology is going to have huge [negative] implications for broadcasters like NBC, which has already paid billions for the Olympics.”

This Article discusses the potential impact of live streaming on the commercial sports industry and analyzes whether commercial sports enterprises have the legal power to stop live streaming of professional and collegiate sporting events. Part I of this Article explores the history of live streaming commercial sporting events. Part II analyzes whether courts are likely to hold live streamers directly liable for their actions under federal copyright law. Part III discusses whether courts are likely to hold manufacturers of live streaming applications secondarily liable for copyright infringement. Part IV assesses the legality of live streaming under right of publicity law. Part V then analyzes the legality of live streaming under unfair competition doctrines. Finally, Part VI concludes that current federal and state laws adequately address all meaningful public policy concerns related to the live steaming of commercial sporting events.

Obscurity

'All the World’s a Stage: The European right to be forgotten revisited from a US perspective' by Hugh J McCarthy in (2016) 11(5) Journal of Intellectual Property Law and Practice 360-371 comments

The Court of Justice (CJEU) ruling in Gonzalez v Google Spain has placed the ‘right to be forgotten’ at the centre of the global privacy debate. However, the decision leaves many questions unresolved, in particular the territorial scope of the ‘right to be forgotten’. 

The Gonzalez decision thereby generates tension with other jurisdictions due to the potential for the extra-territorial application of EU law norms beyond its borders. This tension is especially palpable in jurisdictions that are less than receptive to the principles underlying the ‘right to be forgotten’. In this respect, the Gonzalez decision is a discrete symbol of the disparity between the judicial approaches to privacy, data protection, reputation and freedom of expression under the respective American and EU constitutional systems. Although there are several fields of common ground between the EU and US at the intersection of these fundamental rights, it cannot be said that the ‘right to be forgotten’ is one of them. It is apparent that the body of First Amendment jurisprudence stands as an insurmountable obstacle to the implementation of an EU-style ‘right to be forgotten’ in the US. 

With the imminent codification of the ‘right to be forgotten’ in the EU’s General Data Protection Regulation, it appears that the two jurisdictions will end up ‘shadow-boxing on different plains’ when it comes to the ‘right to be forgotten’. As a consequence of these differences and the resulting regulatory disparity, informational asymmetries will probably emerge between the US and EU – and potentially other jurisdictions – as the ‘right to be forgotten’ is implemented elsewhere.

Marbles

'The Parthenon Marbles in the British Museum' by James Leitzel comments

In the early part of the 19th century sculptures from the Parthenon in Athens were removed from the Acropolis under the direction of the Earl of Elgin, then the British ambassador to the Ottoman Empire, which at the time included Greece. The sculptures were brought to Britain, finding their way to the British Museum in London in 1816, where they are viewed by millions of museum visitors annually. A debate long has simmered as to whether these Parthenon Marbles, which date from the 5th century BCE, should be returned to Athens or remain in the United Kingdom. Elements of the debate include questions about: the legitimacy of the initial relocation of the statuary; the quasi-legal impact of more than 200 years of British stewardship; the risk-mitigating role for dispersal of art; and, the influence on other art and museums of any precedent that might be established by return of the Parthenon Marbles. 

This paper surveys the arguments on both sides of the debate. A Law-and-Economics lens is employed to examine the ‘property dispute’ surrounding the Marbles. Coase-like reasoning is applied to the question of the ‘highest-valued’ location of the Marbles, supplemented with behavioral economics concepts involving cultural identity and endowment effects. The paper concludes by offering some contours for a potentially Pareto-improving agreement that would result in the reunification of the Parthenon Marbles in Greece.

Leitzel concludes

The Law and Economics approach to property disputes such as that concerning the Parthenon Marbles in the British Museum involves seeking an outcome that comports with the maximization of efficiency. This approach ignores – except to the extent that efficiency is implicated – issues such as legality, justice, and ethics: issues that often are highlighted in other approaches to the Marbles dispute. What efficiency does take into account are the preferences of all interested individuals, current and future, while reflecting the intensity of those preferences, generally expressed in terms of the willingness-to-pay for various alternatives. The fact that efficiency concerns the preferences of all interested parties indicates that it has no direct interest in national boundaries or national cultural heritage: in the “two ways of thinking about cultural property” identified in Merryman (1986), efficiency falls on the cosmopolitan, one-common-culture side of the divide (as opposed to taking a nationalistic approach). In terms of precedent, an efficiency rationale for return of the Parthenon Marbles does not support a general rule that people today who happen to inhabit a region of the earth where great art was produced or resided in the past have any stronger claim than do the rest of us to possession or ownership of the art. 

The major elements of the efficiency-centered view are the number of people who can see the Marbles in the two competing locations (or other locations, for that matter); the value of the aesthetic experience that viewing the Marbles would hold in the alternative locations (or rather, the incremental value relative to the experience without the Elgin Marbles); and the intensity of the desire for possession unrelated to viewing, perhaps deriving from an understanding that the Marbles form a key part of one’s cultural heritage. In my estimation, the aesthetic and the “cultural heritage” elements greatly favor the Athens claim, whereas in terms of number of visitors, London currently is superior. Assuming that the efficiency calculus does favor Athens, what sort of a deal can be struck that will result in the reunification of the Parthenon Marbles at the Acropolis Museum? Such a mutually beneficial bargain will be possible, by the usual economics reasoning, if indeed Athens remains the more efficient location, even when transaction and relocation costs are accounted for. The rudiments of a potential agreement are suggested by resolutions to other recent cultural property disputes.  The idea is to fashion the return of the Elgin collection into a celebration of the art and the initiation of a new phase of Greek-British cooperation in matters cultural. Loans of other Greek antiquities to Britain, exhibits in Athens and London devoted to the British Museum’s stewardship over the Marbles, scholarly conferences (perhaps in many fields, including, for instance, literature, history, and economics), and commitments to continued educational exchanges (such as internships for British students at the Acropolis Museum or other Greek cultural institutions, with reciprocity in Britain for Greek students): these are the types of elements that can transform an ongoing irritant in Greek-British relations into a celebration and enhancement of the Parthenon and its place in world culture.

Apps, Privacy and Regulatory Arbitrage

'Regulatory Disruption and Arbitrage in Healthcare Data Protection' by Nicolas Terry in (2016) 17 Yale Journal of Health Policy, Law, and Ethics argues 

Regulatory turbulence, disruption and arbitrage presuppose the juxtaposition of at least two regulatory domains. In the simplest case one domain would be highly regulated; the other unregulated. Turbulence and disruption exist on a continuum. Regulatory turbulence may be only transient or, in the scheme of things, relatively benign. Regulatory disruption has more permanent and serious implications. Regulatory arbitrage occurs when a business purposefully exploits disruption, making business choices on the basis of the differential between the two regulatory domains.

Policymakers’ persistent, systemic failure to safeguard healthcare data outside the HIPAA domain is now exemplified by the minimal, sub-HIPAA data protection afforded healthcare data either held by data brokers or created by mobile apps and wearables outside of the conventional health care space. The former, healthcare data held by data brokers is an example of regulatory arbitrage. The latter, mobile health is presenting with regulatory turbulence and disruption. This article explains how the structure of U.S. healthcare data protection (specifically its sectoral and downstream properties) has led to a chronically uneven policy environment for different types of healthcare data. It examines claims for healthcare data protection exceptionalism and competing demands such as data liquidity. In conclusion the article takes the position that healthcare data exceptionalism remains a valid imperative and that even current concerns about data liquidity can be accommodated in an exceptional protective model. However, re-calibrating our protection of healthcare data residing outside of the traditional healthcare domain is challenging, currently even politically impossible. Notwithstanding, a hybrid model is envisioned with downstream HIPAA model remaining the dominant force within the healthcare domain, but being supplemented by targeted upstream and point-of-use protections applying to healthcare data in disrupted spaces.

WEF and Employment

The World Economic Forum The Global Information Technology Report 2016 looks on the neoliberal bright side, with technology to the rescue. It might be read in conjunction with the CEDA 'robot apocalypse' report noted here.

The WEF report

assesses the state of networked readiness of 139 economies using the Networked Readiness Index (NRI) (Chapter 1.1) and, under the theme “Innovating in the Digital Economy,” examines the role of information and communication technologies (ICTs) in driving innovation (Chapters 1.1 and 1.2). Part 2 consists of an extensive data compendium with the detailed performance of each economy in the NRI (Section 2.1) and rankings for each of the 53 individual indicators included in the NRI (Section 2.2).

The report goes on to comment that 

We are at the dawn of the Fourth Industrial Revolution, which represents a transition to a new set of systems, bringing together digital, biological, and physical technologies in new and powerful combinations. These new systems are being built on the infrastructure of the digital revolution. The Global Information Technology Report 2016 features the latest iteration of the NRI, which assesses countries’ preparedness to reap the benefits of emerging technologies and to capitalize on the opportunities presented by the digital revolution and beyond.

The Networked Readiness Index 2016

Chapter 1.1 presents the results of the NRI 2016, which measures the capacity of countries to leverage ICTs for increased competitiveness and well-being. It also considers innovation trends of recent years through the lens of the NRI.

The networked readiness framework

The networked readiness framework rests on six principles:

(1) a high-quality regulatory and business environment is critical in order to fully leverage ICTs and generate impact;

(2) ICT readiness—as measured by ICT affordability, skills, and infrastructure—is a pre-condition to generating impact;

(3) fully leveraging ICTs requires a society-wide effort: the government, the business sector, and the population at large each have a critical role to play;

(4) ICT use should not be an end in itself. The impact that ICTs actually have on the economy and society is what ultimately matters;

(5) the set of drivers—the environment, readiness, and usage—interact, co-evolve, and reinforce each other to form a virtuous cycle; and

(6) the networked readiness framework should provide clear policy guidance.

The framework translates into the NRI, a composite indicator made up of four main categories (subindexes), 10 subcategories (pillars), and 53 individual indicators distributed across the different pillars:

A. Environment subindex Political and regulatory environment (9 indicators) Business and innovation environment (9 indicators)

B. Readiness subindex Infrastructure (4 indicators) Affordability (3 indicators) Skills (4 indicators)

C. Usage subindex Individual usage (7 indicators) Business usage (6 indicators) Government usage (3 indicators)

D. Impact subindex Economic impacts (4 indicators) Social impacts (4 indicators)

The computation of the overall NRI score is based on successive aggregations of scores: individual indicators are aggregated to obtain pillar scores, which are then combined to obtain subindex scores. Subindex scores are in turn combined to produce a country’s overall NRI score. The appendix of Chapter 1.1 presents the detailed methodology and composition of the NRI.

About half of the individual indicators used in the NRI are sourced from international organizations. The main providers are the International Telecommunication Union, UNESCO and other UN agencies, and the World Bank. The other half of the NRI indicators are derived from the World Economic Forum’s Executive Opinion Survey (the Survey). The Survey is used to measure concepts that are qualitative in nature or for which internationally comparable statistics are not available for enough countries. The 2015 edition of the Survey was completed by over 14,000 business executives in more than 140 countries.

Key Findings

Under the theme “Innovating in the Digital Economy,” The Global Information Technology Report 2016 highlights the ways in which the digital revolution is changing both the nature of innovation and the rising pressure for firms to innovate continuously.

The analysis yields four key findings:

Key Finding 1: The digital revolution changes the nature of innovation.

One of the key characteristics of the digital revolution is that it is nurtured by a different type of innovation, increasingly based on digital technologies and on the new business models it allows. In addition to making traditional research tools more powerful, it allows for new and near-costless types of innovation that require little or no R and D effort. Examples include the digitization of existing products and processes, distributed manufacturing, blockchains, and advertising-based “free services” as well as the prospect of more “uberized” activities in multiple sectors, including transport, banking, entertainment, and education.

The NRI data show that the minds of business executives around the world are increasingly focused on innovation, as reflected by the steady upward trend in firms’ perceived capacity to innovate. Traditional measures for innovation, such as the number of patents registered, are picking up only part of the story. Instead, new types of innovation, such as business-model innovation, look set to become an important part of the innovation story: executives in almost 100 countries report increases in the perceived impact of ICTs on business-model innovation compared with last year.

Key Finding 2: Firms will face increasing pressure to innovate continuously.

Seven countries stand out in terms of economic and digital innovation impact: Finland, Switzerland, Sweden, Israel, Singapore, the Netherlands, and the United States. Considering the different elements of networked readiness for these seven countries, it is noticeable that all seven are characterized by very high levels of business ICT adoption. This technology-enabled innovation in turn unleashes new competitive pressures that call for yet more innovation by tech and non-tech firms alike.

Because digital technologies are driving winner-take-all dynamics for an increasing number of industries, getting there first matters. However, although firms feel that overall capacity to innovate has increased, a stagnating rate of ICT adoption and usage by existing firms across all regions suggests that a large number of firms are not getting into the game fast enough.

Key Finding 3: Businesses and governments are missing out on a rapidly growing digital population.

In recent years, digital innovation has been primarily driven by consumer demand. Yet this increasing demand for digital products and services by a global consumer base is largely being met by a relatively small number of companies. Businesses need to act now and adopt digital technologies to capture their part of this growing market. A widening and worrying gap is also emerging between growth in individual ICT usage and public-sector engagement in the digital economy, as government usage is increasingly falling short of expectations. Governments can do more to invest in innovative digital solutions to drive social impact.

Key Finding 4: A new economy is shaping, requiring urgent innovations in governance and regulation.

As the new digital economy is taking shape, offering it the right framework conditions will be crucial to ensuring its sustainability. Digital technologies are unleashing new economic and social dynamics that will need to be managed if the digital transformation of industries and societies are to deliver long-term and broad-based gains. A resilient digital economy also calls for new types of leadership, governance, and behaviors. A critical ingredient for the success and sustainability of the emerging system will be agile governance frameworks that allow societies to anticipate and shape the impact of emerging technologies and react quickly to changing circumstances.

Networked Readiness Index 2016: Results overview

Chapter 1.1 then reports the rankings of the overall NRI 2016, its four subindexes, and their respective pillars. The composition of the group of top 10 performers is unchanged from last year. The group consists of a mix of high-income Southeast Asian (Singapore and Japan) and European countries (Finland, Sweden, Norway, the Netherlands, Switzerland, the United Kingdom, and Luxembourg) as well as the United States. Networked readiness therefore remains highly correlated with per capita income.

Europe remains at the technology frontier with seven out of the top 10 NRI countries being European. Yet the performance range is wide, with Greece dropping four places to 70th position and Bosnia and Herzegovina closing the group at 97. Several Eastern European countries—notably the Slovak Republic, Poland, and the Czech Republic—are making big strides, landing spots in the top 50 of the NRI; better affordability and large improvements in economic and social impacts are contributing to this success in these three countries in a major way. Italy is another notable mover this year, improving 10 places to reach 45th position as economic and social impacts of ICTs are starting to be realized (up 18 in the global impact rankings).

The Eurasia region continues its upward trajectory, with the average NRI score for the region increasing significantly since 2012. In particular, it is notable that the improvement is observed across all four elements that make up the Index: Environment, Readiness, Usage, and Impact. The region is led by Kazakhstan, which continues on its positive trajectory of recent years to land in 39th position this year.

Leading the Emerging and Developing Asian economies in 2016 is Malaysia, which continues to perform strongly and moves up one spot to 31st position overall; this performance is supported by a government that is fully committed to the digital agenda. The top five in the region in terms of overall ICT readiness remain China, Malaysia, Mongolia, Sri Lanka, and Thailand, as in 2015. The group of Emerging and Developing Asian countries has been both moving up and converging since 2012. Individual usage in the region is still one of the lowest in the world, but has been growing strongly in recent years.

The performance range of countries in the Latin America and Caribbean region remains widely dispersed with almost 100 places between Chile (38th) and Haiti (137th). There was no clear trend from 2015 to 2016 in terms of relative performance, with Chile and Haiti staying put; of the remaining group, half of the countries improve their ranking and the other half drop. Considering the absolute NRI score, however, the region has been moving up and converging since 2012. In order to foster the innovation forces that are key for thriving in the digitized world and the emerging Fourth Industrial Revolution, many governments in the region will urgently need to reinforce efforts to improve the regulatory and innovation environment in their countries.

The UAE (26th) and Qatar (27th) continue to lead the Arab world when it comes to networked readiness. The MENAP region (Middle East, North Africa, and Pakistan) is home to two of the biggest movers in this year’s rankings: Kuwait (61st, up 11) and Lebanon (88th, also up 11). In both cases, individuals are leading the charge with the business sector catching up and strongly contributing to the successful performance. Although governments are lagging behind in terms of digital adoption (81st in Kuwait, 124th in Lebanon), the business community in both countries is registering an increased weight on ICTs in government vision and efforts to improve the regulatory environment. This year’s NRI also sees several sub-Saharan African countries among the top upward movers, including South Africa (65th, up 10), Ethiopia (120th, up 10), and Côte d’Ivoire (106th, up 9). Leadership in terms of digital adoption is coming from different groups of stakeholders. Although efforts are very much government-driven in Ethiopia and Côte d’Ivoire, the business sector is providing the most momentum in South Africa. Going forward, the largest barriers to tackle for Côte d’Ivoire will be infrastructure and affordability; reversing the trend of a deteriorating business and innovation environment for South Africa; and individual usage and skills for Ethiopia.

Chapter 1.1 provides an overview of the performance of the 10 best-performing countries in the NRI 2016, a selection of economies that were among the top movers as well as other selected economies, including members of the G20 outside the top 10.

The Index maps a quickly evolving space and has been adapted since its inception in 2001. Since the digital economy is developing exponentially, its measurement must be adapted to reflect the new realities on the ground. A multi-stakeholder process will be put in place to identify key questions concerning the drivers and implications of the emerging Fourth Industrial Revolution and to develop relevant concepts and measures with a view to incorporating these findings into the next edition of the NRI.

Cross-border data flows, digital innovation, and economic growth

In Chapter 1.2, Robert Pepper, John Garrity, and Connie LaSalle explore the impact of the free flow of data across national borders on innovation and growth. The authors highlight the development of cross-border data traffic over Internet protocol, starting with the first email messages in the early days of the Internet to today, where over 3.2 billion people across the world have access to and use the Internet.

The flow of digital communication between countries, companies, and citizens has been recognized for years as a critical driver of economic growth and productivity. Countries adept at fostering digital activity have witnessed the emergence of new industries as well as the accelerated development of traditional sectors. However, despite the intensive and extensive growth of the global Internet, concerns over growing barriers to digital flows are mounting.

The authors first review the literature on the impact of cross-border data flows on countries, companies, and individuals. The chapter then presents an original analysis of the growth of new services built on the free flow of trade through global digitization, and concludes by discussing policy guidelines that mitigate concerns over national data transmission while simultaneously maximizing the benefits of cross-border data flows.

Part 2: Data presentation

Part 2 of the Report contains individual scorecards detailing the performance in the Networked Readiness Index of each of the 139 economies (Section 2.1) and tables reporting the global rankings for each of the 53 individual indicators composing the NRI (Section 2.2).

Patents

'Pierson, Peer Review, and Patent Law' by Lisa Larrimore Ouellette in (2016) 69 Vanderbilt Law Review comments

When has a researcher done enough to merit a patent? Should the patent belong to the researcher who first suggests an invention, or the one who brings it to fruition? The canonical dispute over a fox in Pierson v. Post is used to illustrate the competing policy considerations in deciding when to award a new property right, including providing efficient incentives, setting forth clear rules to guide future behavior, and respecting natural rights. In patent law, all of these considerations suggest that in practice, many patents are awarded too early, before an applicant has demonstrated that the invention is likely to work. The main problem seems to be not with the substantive standards, but with the Patent Office’s institutional competence to enforce these standards. A patent is supposed to teach a researcher of “ordinary skill” in the field how to make the invention without “undue experimentation.” Yet it often takes extraordinary skill to recognize when this standard is not met based merely on reading a patent application — expertise that the typical patent examiner lacks. To address this information asymmetry, it is worth experimenting with bringing those of extraordinary skill into the patent examination process through a robust peer review system. So far, opportunities for outside input such as the Peer To Patent pilot project have focused on providing examiners with additional prior art, but peer review would be far more valuable for evaluating patent disclosures to assess whether applicants have in fact done enough work to merit a patent, or whether it remains too early in the chase.

Orientalism

'Towards the Rehabilitation of a Symbolic Account of Justice' by John R. Morss comments

Orientalism in Edward Said’s account has functioned to blinker Western consciousness about its own place in the world as well as the place of others. The breadth and the depth of Orientalism for Said needs to be recognised and in some senses respected in order that it may be gradually unpicked from the contemporary imagination. The more florid of the products of Orientalism, such as the breathtaking statements about ‘the Eastern mind’ or ‘the Arab world’ so confidently asserted by generations of expert Orientalists, are not too difficult to identify and to repudiate. Similarly, many aspects of law are patently egocentric and discriminatory and to the extent of that visibility, are fairly easily identified as such even if remediation is not always so easy. But it is the less patent effects of Orientalism that most concern Said and likewise, any value for an Orientalist perspective on law must go beyond the obvious. The revelations about ‘ourselves’ must be challenging if they are to be relevant. It may be that one may replace ‘East’ with ‘Law’ without absurdity and perhaps without incoherence. This would be one of many possible ways of treating our understanding of the legal, like our understanding of the ‘East,’ as a mediated and motivated construction.

IOM

'Organization for Migration’s Compassionate Mercenary Business' by Bruno Dupeyron in Ruben Zaiotti (ed) Remote Control: The Externalization of Migration Management in Europe and North America (Routledge, 2016)  238–258  comments

 The re(b)ordering efforts made by states over the last three decades, for instance the securitization of some border areas and harsher visa policies, may denote an evolution of the international migration regime. The increase of migrant and refugee flows in the 1970s and 1980s (Hatton 2012), coupled with demographic and security challenges in developing countries (Geddes 2005), started to significantly alter an international migration regime that was essentially based on the notion of ‘control’ (Pécoud 2010; Georgi 2010). In the 1990s, the collapse of the Soviet bloc and the wars in Iraq and the former Yugoslavia added further policy makers’ concerns about the regulation of permanent and temporary migrations and refugee flows. A new regime, based on a global policy agenda relying particularly on the concept of ‘migration management’, was originally formulated by Bimal Ghosh, in 1993. Ghosh further developed this concept of ‘migration management’ in the 1996 project known as the New International Regime for Orderly Movements of People (NIROMP), funded by the Swedish, Dutch and Swiss governments (Ghosh 2000). Ghosh proposed a comprehensive international migration regime, designed to tackle what was perceived as current and future migration policy crises, and focuses on both migrants and refugees (Geiger and Pécoud 2010). Yet, Sassen argues that these two categories, migrants and refugees, cannot be merged: “there are separate regimes for refugees in all these countries and an international regime as well, something that can hardly be said for immigration” (1996, 64). Nonetheless, Ghosh’s ‘migration management’ approach was welcomed and later borrowed by the International Organization for Migration (IOM). This notion of ‘migration management’ became a mantra of the IOM, “committed to the principle that humane and orderly migration benefits migrants and society” (IOM 2015e). 

The IOM is an intergovernmental organization (IGO), created in 1951 as an operational organization (as opposed to a full-fledged migration organization now), known as the Provisional Intergovernmental Committee for the Movement of Migrants from Europe (PICMME). The context of the origins of the PICMME deserves to be examined briefly. After the Second World War, approximately 11 million displaced people brought about serious socio-economic concerns for European governments. The problem was generally framed as an economic issue of surplus populations in Europe, surplus populations that required resettlement to certain countries with manpower needs, e.g., the United States (US), Canada, Australia, and so on. Yet, there was no consensus over an appropriate solution, as the United States disagreed with multilateral international organizations, e.g., the United Nations (UN). In the midst of the cold war, the United States insisted on limiting international interferences over migrant and refugee policy issues, and thus proposed to create a basic institution with specific functions, based on an intergovernmental structure driven by nation-states’ economic agenda. Conversely, the UN supported the idea of an international organization that would lead international cooperation on migration and refugee issues, based on humanitarian purposes, i.e., the United Nations High Commission for Refugees (UNHCR) (Karatani 2005). In 1951, the conferences of Naples and Brussels ratified the US approach, which led to the creation of the PICMME, then re-christened several times before acquiring in 1989 the acronym IOM we know today. In short, Düvell argues that the IOM “was always intended to offer an economic counter-agency to the humanitarian UNHCR, set up the year before” (2003). 

Georgi analyzes the historical development of the IOM in five major phases: during the cold war, the organization is a modest “anti-communist logistics agency” that supports some of western countries’ migration policies. Secondly, from the 1980s to 1993, the organization experiences an opportunistic phase, in the context of globalization and the end of the Soviet bloc; from 1994 to 2000, an expansion by solving the ‘migration control’ problem with a ‘migration management’ solution, although Pécoud notes that the difference between control and management is extremely tenuous (2010, 194); from 2000 to 2008, an exceptional growth of the IOM under Brunson McKinley’s leadership; and from 2008 on, the IOM was in a post-neoliberal era (Georgi 2010, 49- 61). We could also summarize this shift by suggesting that the IOM, originally a transport agency, shifted opportunistically to a multi-service agency for states. 

The IOM, which is headquartered in Geneva, describes itself as a growing organization, from 67 member states in 1998 to 156 in 2014; from a total expenditure of US dollars (USD) 242.2 million in 1998 to USD 1.3 billion in 2013; IOM offices are located in more than 150 countries; operational staff was about 1,100 in 1998 and reaches at present 8,400, “almost entirely in the field” (IOM 2015g; Migreurop 2009). As opposed to numerous UN agencies that are going through significant organizational downsizing (Hammerstad 2014), the IOM provides an interesting example of international organizations that have the wind astern, symptomatic of nation states’ shifting international priorities in the 21st century. The expansion of the IOM, along with an increasing focus on border and migration security policy issues in diverse social science disciplines, may explain the emerging scholarly interest in this organization in the 2000s and 2010s. However, what explains the fact that it was and is still a relative research blind spot? First, the IOM is not an organization that belongs to the UN system. The absence of the IOM in an organizational framework that is over-scrutinized by international relations students may thus explain in part this research myopia. Second, and this is related to the first point, due to its narrow mandate and limited resources and activities until the early 1990s, the IOM has been a marginal organization for decades, strived to reproduce itself, especially in the 1960s, when the ‘iron curtain’ threatened its existence (Georgi 2010, 51). Third, the IOM’s lack of transparency regarding the services provided to its member states is another obstacle. Most of the contracts concluded by the IOM to offer these services are kept confidential. Besides, field research seems problematic: it is certainly possible to interview some IOM employees (see for instance Geiger 2010), and pretty challenging to converse with asylum seekers who are detained on the island of Lombok, east of Bali (Ashutosh and Mountz 2011), but it is extremely difficult to interview temporary foreign workers who have signed an IOM contract and understandably fear reprisals for voicing concerns (see for instance Vargas-Foronda 2010a, Ancheita Pagaza and Bonnici 2013). 

At least two topics seem to draw consensus among researchers who study the IOM. First, many scholars agree that the IOM fosters neoliberal values and policies in a globalized context (Andrijasevic and Walters 2010; Geiger and Pécoud 2010; Vargas-Foronda 2010a). Similarly, Kalm uses the expression of ‘neoliberal governmentality’, borrowed from Foucault, which allows us to think about migration management in relation to the government of populations, where the maximization of human capital is seen as a key objective for governments and individuals (2010). Not far from Kalm’s analysis, Andrijasevic and Walters contend that the concepts of ‘international liberalism’ and ‘global governmentality’ allow us to grasp how the IOM works in a global field of power at the service of its member states; also, they argue that IOM policies should be analyzed through its practices, starting with specific ones defined by the IOM, for instance ‘assisted voluntary return’ (2010). Georgi identifies the IOM’s political project as a form of “neoliberal global migration governance” (Georgi 2010, 67). Ashutosh and Mountz show how the IOM works “at the intersection of nation-states, international human rights regimes, and neoliberal governance” (2010, 22). 

Second, several scholars emphasize the fact that IOM activities also represent a significant business, relying for instance on EU funds, as the organization was able to secure European Commission funding to offer policy services to Albania (Geiger 2010, 157), on a vast repertoire of national ministries and agencies that consider that the IOM knows and defends migrants and asylum seekers’ human rights (Pécoud 2010, 195; Geiger 2010), or on temporary foreign workers’ remittances (Vargas-Foronda 2010b). 

In the context of this literature, the externalization and internationalization of migration management seems to be one of the core features of the current regime. Yet, this international migration management regime is increasingly questioned by scholars (Geiger and Pécoud 2010; Kuntz et al. 2011) who have worked on the IOM. Although the literature proposes stimulating approaches to migration governance, it fails to propose a robust coherent framework that would make sense of the role of the IOM as a key component in the neoliberalizing processes we witness at multiple levels - local, national, transnational and international. In the first section of this chapter, we suggest an alternative model to analyze how neoliberal migration management requires focusing not only on the notions of workfare and prisonfare, but also on the ‘theory of fields’ theoretical framework. In this second section, we will analyze the role of the IOM in a labour contract for Guatemalan temporary foreign workers who are employed in farms in Canada. 

Methodologically, this study relies on primary and secondary sources: primary sources include website pages from the IOM’s main website, as well as contracts, appendices to contracts and documentation in Spanish provided by Jacobo Vargas-Foronda; secondary sources comprise scholarly, government, IGO and non-government organization (NGO) documents.

Received wisdom on the Robot Apocalypse

The 200 plus page CEDA report on Australia’s future workforce? comments

Almost five million Australian jobs – around 40 per cent of the workforce – face the high probability of being replaced by computers in the next 10 to 15 years.

While we have seen automation replace some jobs in areas such as agriculture, mining and manufacturing, other areas where we are likely to see change are, for example, the health sector, which to date has remained largely untouched by technological change.

Our labour market will be fundamentally reshaped by the scope and breadth of technological change, and if we do not embrace economic reform and focus on incentivising innovation, we will simply be left behind in an increasingly competitive global marketplace

 Its summary states

The next stage of the industrial revolution promises to continue this trend but in new challenging ways. The extension of computerisation into almost all aspects of human activity threatens to radically reshape the workforce of tomorrow. However, in the more globalised economy, it remains to be seen whether it will generate a net increase in employment and wealth within Australia or if the labour market benefits will be dispersed.

While increasing computational power has been reshaping the labour market for over 60 years, the capacity of machines to replicate aspects of human thought is set to most radically reshape the future of work. These advances mean that activities previously considered forever outside the scope of programming are increasingly being undertaken by computers. For instance, driving through traffic was thought to be a task that humans would always have an absolute advantage over computers; now Google has patented a driverless car.

Computers will reshape the labour market in two key ways. They will:

1. Directly substitute for labour, with a high probability that as much as 40 per cent of the jobs in Australia could be replaced by computers within a decade or two; and

2. Disrupt the way work is conducted, expanding competition and reducing the costs to consumers but also reducing the income of workers.

Modelling conducted for this report suggests almost five million jobs face a high probability of being replaced in the next decade or two while a further 18.4 per cent of the workforce has a medium probability of having their roles eliminated. Jobs that involve low levels of social interaction, low levels of creativity, or low levels of mobility and dexterity are more likely to be replaced by automation.

In the face of such modelling, it is vital that Australia rediscovers its ability to implement challenging economic reforms. As the stimulus from the mining boom fades, Australia’s prosperity will become increasingly subject to the pressures of the international marketplace. This will occur in an environment of heightened human and financial capital mobility and fast-paced technological advances that can rapidly undermine sources of traditional comparative advantage. Whether recent economic success fades into memory or continues will be substantially determined by the quality of policy implemented by government and business alike.

Australia’s future workforce? has brought together leading researchers, thinkers and practitioners to examine what major factors will influence Australia’s labour market over the decades to come. The key point is that while it is not possible to predict the future, it is possible to understand the major forces shaping it. Consequently, this report examines the major technological and demographic forces at work in the world today and puts forward the elements of a new social contract that can underpin continued economic prosperity for the nation and help maximise the benefits of the next wave of the industrial revolution for all Australians. 

 The report goes on to state

Global trends

In Reshaping work for the future, London Business School Professor Lynda Gratton describes the degree to which technology has already transformed business activity, particularly leading organisations operating in economies that are close to the technological frontier. It also details the implications of technology’s ongoing influence over work as people seek to develop skills in areas that cannot be made redundant by computers, and businesses try to engage the best talent both locally and globally. The implication is that careers are becoming a marathon, not a sprint, and that the relationship between the employer and the employee needs to radically alter to reflect the demographic changes being experienced and the increasing power of the individual.

In The impact of emerging technologies in the workforce of the future, Telstra Chief Scientist Professor Hugh Bradlow describes how a range of existing technologies, such as cloud services, Big Data, the Internet of Things, artificial intelligence and robotics are rapidly reaching the point where they will have widespread impact on the economy. This contribution expands on machine thinking and unpacks the ways in which a range of technological developments are all acting to transform human activity. On its own, each technology has the capacity to change business activity. Taken together, they have the potential to radically reshape society, the basis of a new wave of the industrial revolution.

In How next-gen computing is changing the way we work, IBM Watson Australia/ New Zealand leader Belinda Tee and IBM Workforce Science Practice organisational psychologist and management consultant Jessica Xu describe the technological advances underpinning advanced computing and how they are changing businesses. Cognitive computing allows machines to understand human language, making them capable of analysing vast amounts of information and interpreting it in challenging situations. This was demonstrated when the computer Watson was created that could process 200 million pages of data to return confidence-weighted responses to quiz show questions. This enabled Watson to beat humans in a domain they had previously had an absolute advantage over computers – game shows such as Jeopardy. This approach to processing information is being used in more serious applications, such as improving the ability of doctors to diagnose patients correctly, an area where almost 20 per cent of patients are misdiagnosed. This technology changes the way in which customers can engage with business, and the way in which businesses can be organised.

In The impact of computerisation and automation on future employment, University of Sydney Professor and ARC Federation Fellow, Hugh Durrant-Whyte, and NICTA researchers Daniel Steinberg, Alistair Reid, Lachlan McCalman and Simon O’Callaghan estimate the potential job losses arising from computerisation. Recent technological breakthroughs mean that computers and robotics can potentially replace labour in routine operations in diverse settings, such as autonomous mining operations. Additionally, machine-learning algorithms will encroach on roles previously perceived as skilled jobs outside the domain of automation, while also increasing the productivity and decreasing employment requirements for many roles that were also previously untouched by information and communication technologies (ICT), such as in the health sector. The consequence of these changes is that almost 40 per cent of the jobs in Australia have a high probability of being substituted with computing in the next few decades. An additional 18 per cent has a medium probability, while the remaining jobs are safe from computing for now. This study does not attempt to predict what types of jobs may be created in the future.

In Case study: Automation and Australia’s future workforce, Rio Tinto Pilbara Mines Managing Director Michael Gollschewski explains how automation can improve the productivity of activity with the example of their activities in the Pilbara region. Rio Tinto’s Pilbara operations comprise 15 mines, four port terminals, and more than 1700 kilometres of rail network supporting a fleet of over 180 locomotives and 11,000 ore cars. The case study describes how automation improves the health and safety of workers, while also creating more interesting jobs, lowering operating costs by eliminating human error, and improving the quality and quantity of output. For instance, the autonomous drill systems, only used in select sites at the moment, have improved productivity by 15 per cent and eliminated injuries. In addition, Rio Tinto is using the process of automation, and the increased level of data being generated in all its activities, to develop Excellence Centres that use this information to generate continuous process improvements. Finally, operating complex activities remotely requires distinct skill sets from workers. The case study describes the characteristics of successful remote operators.

In Digital disruption – what, why and how, Reserve Bank of Australia Chief Information Officer Sarv Girn describes how technology is fundamentally changing industry and posits how this change may evolve in the future. Detailing a range of historic digital disruptors, it describes common characteristics of how technological developments have been used to fundamentally change the way in which consumers interact with a business, or in which businesses organise the supply of goods or services. The contribution also describes the recent global shift in innovative capacity to Asia, and discusses the opportunities and challenges of this for Australia. How organisations can best respond to the challenges and opportunities arising from digital disruption is also considered.

In Megatrends and Australia’s future: Older and wiser?, Australian Futures Project Policy Director Dr Fiona McKenzie describes the megatrends influencing Australia’s future. These include the shift in the economic gravity of the world, the geopolitics of a multipolar world, climate change, resource security, technological developments, the growth of virtual connectivity and demographic changes occurring in Australia and the world more broadly. In particular, the contribution examines the implications of global ageing and the projected growth of Australia’s cities. With an ageing and increasingly well educated workforce, Australian businesses will need to deal with very different labour market needs to engage the skill and talent they require to conduct their business.

Australian stocktake

In Australia’s shifting economy, Department of Industry and Science General Manager Tim Bradley charts the changing shape of Australia’s industrial landscape and the consequences for the labour market. This contribution describes how the Australian economy is neither an accident nor a product of design. Rather, it reflects more than a century of economic and demographic pressures and the subsequent response by business, workers, investors and governments. Australia’s economy is highly dynamic, with many businesses entering and exiting the marketplace, and large numbers of workers changing jobs, industries and professions. The consequence is a highly productive economy with a large capacity to absorb change. The contribution also examines the potential growth industries of the future.

In Technological and structural change in the Australian labour market, University of Canberra Professor Phil Lewis describes labour market responses to structural, technological and skills demand changes. The recent history of the labour market is one of constant change, and it is clear that these changes have largely been successfully absorbed by the Australian labour market. However, there have been distinct losers in recent economic adjustments, particularly unskilled youth and workers unable to develop skills in demand, such as older males made redundant from traditional manufacturing roles. These cohorts make the level of underemployment considerably higher in the Australian labour market than the unemployment rate may suggest. For these workers there is a vicious circle associated with their inability to re-engage with the labour market and specific policy interventions are necessary to enable them to find employment.

In Information technology and the Australian labour market, University of Melbourne Professor Jeff Borland and Senior Lecturer Dr Michael Coelli assess the influence that information technology has had on the skill composition of the Australian labour market. Over the last 50 years, there have been large changes in the skill composition of employment, with consistent growth in employment of high-skill workers, a large decline in the share of middle-skill workers and a smaller decline in low-skill workers. The job polarisation experienced in Australia is similar to the trend in Europe. They also find evidence that the change in skill composition is due to the introduction of information and communication technologies that have steadily reduced the demand for labour to complete routine tasks.

In the Stability of education earnings gaps in Australia, Dr Michael Coelli examines the winners and losers in the race of education and the machine. Technological change, particularly computerisation, has been a major influence on Australia’s labour market over the last 40 years. This contribution examines how technology has changed the lifetime earnings for people with different levels of educational attainment. Australia has unique characteristics that differentiate it from the experience in the United States, which are explained in the contribution.

The future worker

In Developing the capacity to adapt to industry transformation, Australian Workforce and Productivity Agency (AWPA) former Head of Secretariat, Sue Beitz, reports on how the major global economic trends will shape the future of skill requirements in Australia. The contribution describes macro trends to inform the skills that workers will increasingly need in the future, and to identify gaps in the way these skills are currently being developed. In particular, there are significant shortages in digital skills, which will become a new basic skillset in the way reading and writing are today. Australia needs to re-examine the regulatory frameworks governing education to help workers develop the required skillsets and to ensure that public resources are being invested appropriately.

In Closing the gender gap in labour supply, University of Sydney Professor Patricia Apps examines the implications of the population’s ageing and the counterbalancing influence of increasing female participation. In particular, the contribution examines the reforms that would allow the reallocation of resources from the household, looking after young children, to the labour market. It also describes how the current gap in participation between men and women is closer to 40 per cent, rather than the headline 12 per cent, due to high part-time employment of women. Women have almost equal workplace outcomes to men until children are born, when they transition to part-time work. This is a significant social loss since they do not revert to working to the same degree ever again. The contribution makes a series of recommendations to rectify the participation gap.

In Your future employer – yourself, Independent Contractors Australia Co-Founder and Executive Director Ken Phillips details the growth in self-employed workers across the world. Despite the stereotype that these workers are relatively low skilled and in vulnerable positions because of the tenuous nature of their work, an increasing percentage of self-employed workers are older, highly skilled professionals. This is a global trend, with the numbers of self-employed people growing most notably by 45 per cent in the past decade in Europe. Technological developments will make it increasingly easy for workers to be self employed, and for agile workers to sell their skills to wider markets. Given the very high reported figures that self employment is an aspirational goal of over half the workforce, it is probable this type of work will become more of a norm in the future. This will potentially create challenges for organisations, particularly for big businesses.

In Where the jobs are, IBISWorld Chairman Phil Ruthven AM provides a long-term perspective on human labour. He observes that the quantum of work performed has not changed, but as human life expectancy has increased, the workload has been spread. People now work for much longer but less intensely. The focus of work has shifted from brawn to more durable brains. As wealth has increased, businesses and households have increasingly outsourced activities to others, reflecting increased specialisation. Examining the areas of business and household activities that can be outsourced suggests areas of future growth in employment. Additionally, Australia as a nation will increasingly outsource activities to other nations while being a recipient of other nations’ outsourcing.

Policy response

In The strategic imperative: Australia’s place in the global labour market, Stanford University Professor Steven Callander describes the challenge that the next wave of industrialisation will pose for a small open economy like Australia. The contribution identifies two key economic consequences of the new, highly integrated global economy. The first is that the share of income going to labour, as opposed to physical or intellectual capital, has been in steady decline for decades. The other is that those individuals or nations that do not innovate are condemned to be commoditised. The world is increasingly moving towards ‘winner takes all’ outcomes where those that create something unique or special command increased returns on their efforts while the rest get lower and lower returns. Australia’s relatively small size means it has historically been an early adopter rather than a developer of ideas. Australia needs to build on those areas of the economy operating at the technological frontier to create wealth and jobs in the future.

In Future skills, industry policy and a new social contract, UTS Business School Dean Professor Roy Green and University of Technology, Sydney, Professors Christos Pitelis and Ian Marsh provide a review of industry policy and its implications for skills development. The contribution also describes the new industrial revolution’s implications for Australia. It discusses the roles of services, particularly manufacturing, in these global value chains, and makes a series of observations as to the importance of the latter in sustained wealth creation for a nation. The contribution makes recommendations as to how Australia can attempt to become a substantial contributor to emerging global value chains

In A brave new world of higher education, Deakin University Vice-Chancellor Professor Jane den Hollander, examines how well positioned Australia’s university sector is for the disruption arising from technological progress. Operating virtually unchanged for over 500 years, universities around the world are potentially going to experience one of the most radical shakeups of their operations ever. While the result, such as massive open online courses, could threaten the business performance of Australia’s higher education sector, it also has the potential to spread knowledge and insight more broadly into the community than in the past. To be successful, universities need to adjust to a world where human knowledge increases dramatically faster than ever before and where people will be educated for jobs that do not yet exist. They need to teach the ability to analyse data and not simply recite facts and figures.

In Future skills in information technology, Hugh Durrant-Whyte examines what types of ICT skills Australia needs to develop to successfully adapt to the technological forces reshaping business. The contribution describes how ICT will affect the Australian economy: through the development of new technology companies and products, typically only in a few sectors such as resources and agriculture where there is a critical mass of activity; or through the adoption of technologies developed elsewhere, which will be the dominant influence. As a consequence, Australia needs to embrace the ICT skills that will allow businesses to rapidly adopt technological developments if they are not to fall behind international business best practice. Additionally, a broad appreciation for technology needs to be developed across the population so that it is understood and used in a similar way to how the written word is today. However, this does not mean greater numbers of science, technology, engineering and mathematics (STEM) students. Rather than teaching basic skillsets, the focus needs to be on deeper technical skill development of architecting, designing and analysing. These areas will generate jobs in the future for Australia as the major role of ICT in Australia is to transform existing companies and existing ways of doing business

In Northern lights, Deakin University Associate Professor Dr Andrew Scott examines how countries have successfully retrained workers from industries facing imminent collapse. In particular, the contribution undertakes a detailed examination of the approach adopted by Denmark when facing the collapse of its shipbuilding industry. What is clear is that successfully retraining mature workers requires a specific policy approach, one that Australia is lacking. This has significant ramifications for workers in the automobile sector, let alone any restructuring that might occur as a result of computerisation or contestability.

Reform agenda

Australia is well positioned to respond to the emerging workforce challenges with its highly educated workforce, prosperous and stable society, and geographic proximity to the emerging economic powerhouses of Asia. However, the world economy is increasingly becoming one in which the ‘winner takes all’ as technological developments allow the widespread dispersion of successful innovations. Australia has historically been a swift adopter of technological developments, but this strategy is going to be less and less useful in the future as more of the gains will accrue to the developer of innovation.

To succeed in this global environment:

• Australia needs a new social contract, one that recognises the role of government in developing the enabling environment for industry to flourish, which maximises the application of the nation’s human capital and incentivises innovation;

• The strategy of creating growth centres should be funded to a level commensurate with international best practice and to meet the massive challenges confronting the economy as it transitions from dependence on mining and resources. Australia has currently allocated only $190 million over a four-year period, while the United Kingdom’s Catapult Centres, on which the Australian growth centres are modelled, has $3 billion allocated over the same period.

The rapid pace of technological change driving the next stage of the industrial revolution requires new approaches from government, rather than the historic top-down siloed approach. The Federal Government should use the White Paper on the reform of the Federation as an opportunity to:

• Bring all parts of the Australian Commonwealth to the table as equals to develop information and learning systems that support accountability and continuous performance improvement.

To enable Australia to optimise its prosperity, it needs to undertake reforms addressing areas of economic rigidity in the economy and incentivising innovation. The nation needs to:

• Establish a National Productivity Policy addressing a comprehensive review of regulation, pricing and licencing arrangements while phasing out industry subsidies, among other important microeconomic reforms, so that Australia can operate on the policy frontier.

Education

A relatively highly educated workforce has been a traditional source of advantage for Australia. However, the rapid rise in global education means this historic strength is being eroded. Further, the increasing ability of computers to substitute human thinking means Australia needs to ensure that the education system is providing students with valuable skills for their future employability.

To position Australia’s workers with the skills to adjust to emerging technologies and to maximise the nation’s human capital, the nation needs:

• A unified, overarching policy framework to guide the allocation of investment in edu - cation and training from early childhood to further education and training and tertiary education. This is currently lacking in the debate about various forms of education reform;

• To ensure all stages of the education process focus on instilling competencies rather than the retention of specific knowledge. With public funds being invested, it is important that the skills being taught are not firm specific, but instil broad competencies that represent a valuable public investment;

• The Commonwealth Government to examine extending the formal education system to include a public learning-focused childcare and preschool system in an affordable part of the early education package;

• Digital competency to be a basic competency for all workers in the future as Australia does not need larger numbers of computer programmers. Outside a few core areas, Australia lacks the size to become an ICT powerhouse. However, Australia will require ICT students with capabilities in architecting, designing and analysing to adopt international ICT developments if its industries are to stay globally relevant.

Capital cities

An important complement to Australia’s innovation policy is to ensure the country has liveable cities. The highly skilled employees who increasingly drive prosperity are able to work globally and are highly mobile. City liveability is a strong predictor of economic activity and wage growth because such areas are able to attract the innovative class of people who drive this activity.

To fully realise the advantages of Australia’s favourable environment:

• The nation should create discrete city-wide entities with the responsibility for whole- of-urban planning in its urban centres. These entities should preferably be vested with hypothecated funds from sources that generate it within the jurisdiction, such as the fuel excise and appropriate congestion pricing, to ensure adequate investment so that these cities remain liveable.

Labour force adjustments

Australia’s labour market is robust and relatively efficient for the most part. However, historically workers in industries experiencing substantial numbers of redundancies have frequently experienced challenges in re-engaging with the labour market in large numbers. The social and economic cost is substantial.

As the new wave of the industrial revolution makes more and more roles redundant, it is important that proactive steps be taken to ensure workers develop the skills needed to remain in the workforce.

• Australia should seek to emulate other countries’ success in transitioning workers out of declining industries. This will require a concerted effort to reskill workers prior to retrenchment.

Regulation and Information

'The Regulatory State in the Information Age' by Julie E. Cohen in (2016) 17(2) Theoretical Inquiries in Law examines 

he regulatory state through the lens of evolving political economy, arguing that a significant reconstruction is now underway. The ongoing shift from an industrial mode of development to an informational one has created existential challenges for regulatory models and constructs developed in the context of the industrial economy. Contemporary contests over the substance of regulatory mandates and the shape of regulatory institutions are most usefully understood as moves within a larger struggle to chart a new direction for the regulatory state in the era of informational capitalism.

A regulatory state optimized for the information economy must develop rubrics for responding to three problems that have confounded existing regulatory regimes:

(1) platform power — the power to link facially separate markets and/or to constrain participation in markets by using technical protocols;

(2) infoglut — unmanageably voluminous, mediated information flows that create information overload; and

(3) systemic threat — nascent, probabilistically-defined harm to be realized at some point in the future.

Additionally, it must develop institutions capable of exercising effective oversight of information-era activities. The information-era regulatory models that have begun to emerge are procedurally informal, mediated by networks of professional and technical expertise that define relevant standards, and financialized. Such models, however, also have tended to be both opaque to external observation and highly prone to capture. New institutional forms that might ensure their legal and political accountability have been slow to develop.

'A Trojan Horse? How an Expanding First Amendment Threatens the FDA Pre-Market Approval System and Much of the Modern Regulatory State' by Christopher T. Robertson in (2017) Ohio State Law Journal (Forthcoming) comments 

Scholars, advocates, and courts have begun to recognize a First Amendment right for drugmakers to promote their products “off-label”, without proving safety and efficacy of new intended uses. Yet, so far, this debate has occurred in a vacuum of peculiar cases, where convoluted commercial speech doctrine underdetermines the outcome. Review of the seven arguments deployed in the off-label domain finds that they cannot be so limited. Instead, if they were valid, they would undermine the FDA’s entire premarket approval regime, reopening the door to a snake oil market where hype replaces science. Even more, if valid, this First Amendment logic would undermine a wide range of statutory regimes that have similar intent-based structures and rely on speech as evidence of intent. Ultimately, with relevance to First Amendment theory, this article reveals a broad and longstanding coherence in the law.