'Attention Markets and the Law' by John Newman
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Human attention has become one of the most scarce—and therefore most valuable—assets in modern economies. Yet current legal doctrine and discourse have almost entirely overlooked this development. As a result, different bodies of law have evolved inconsistent rules for dealing with the same subject matter. Moreover, a number of fields exhibit internal contradictions and coverage gaps. Thus, for example, antitrust and contract law have taken directly opposing views on the very existence of attention exchange. Property law has failed to consider whether attention is property, despite its similarities to information and labor—both asset categories that have prompted robust debates among property analysts. Contract-law cases have employed internally illogical reasoning, as has a leading privacy-law decision. Regulatory agencies have neglected their congressionally mandated duties and allowed massive societal-welfare harms to go unchecked.
This Article describes these various crises and demonstrates the urgent need for reform. Toward that end, it undertakes the foundational task of constructing a robust model of attention expenditure, depletion, and exchange. Building on these insights, the Article proposes four policy changes: increased antitrust oversight of attention markets, “price” caps and Pigouvian taxes on attention consumption, and the development of property-law discourse on attention rights. It concludes with a broad call to action: legal analysts across a wide variety of disciplines must begin paying more attention to attention.
Opening the black box of data-based school monitoring: Data infrastructures, flows and practices in state education agencies' by Sigrid Hartong and Annina Förschler in (2019)
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Contributing to a rising number of Critical Data Studies which seek to understand and critically reflect on the increasing datafication and digitalisation of governance, this paper focuses on the field of school monitoring, in particular on digital data infrastructures, flows and practices in state education agencies. Our goal is to examine selected features of the enactment of datafication and, hence, to open up what has widely remained a black box for most education researchers. Our findings are based on interviews conducted in three state education agencies in two different national contexts (the US and Germany), thus addressing the question of how the datafication and digitalisation of school governance has not only manifested within but also across educational contexts and systems. As our findings illustrate, the implementation of data-based school monitoring and leadership in state education agencies appears as a complex entanglement of very different logics, practices and problems, producing both new capabilities and powers. Nonetheless, by identifying different types of ‘doing data discrepancies’ reported by our interviewees, we suggest an analytical heuristic to better understand at least some features of the multifaceted enactment of data-based, increasingly digitalised governance, within and beyond the field of education.
The authors state
This paper seeks to contribute to the fast-growing body of Critical Data Studies by providing empirical insights into the pursuit of data, measurement and commensuration in the field of public education. As in many other governmental spheres (for a recent overview see Smith, 2018: 3), the growing development of digital data infrastructures in education raises numerous questions ‘[…] about the nature of data, how they are being produced, organized, analyzed and employed, and how best to make sense of them and the work they do. Critical data studies endeavours to answer such questions’ (Kitchin and Lauriault, 2014: 1; see also Iliadis and Russo, 2016), while explicitly challenging the idea of data as being neutral or simply technical.
In fact, there is a visibly growing body of work that describes the expanding datafication and digitalisation of education policy and practice, enhanced by the promotion of the so-called evidence-based governance (e.g. Bellmann, 2015; Grek and Ozga, 2010), including research that has explicitly focused on the production and processing of international student assessments (Bloem, 2016; Gorur, 2014; Lewis, 2017; Villani, 2018). Nonetheless, the increasingly digital and automated formation, recoding, storage, manipulation and distribution of data, all of which have become integral features of education governance (Hartong, 2016, 2018a; Landri, 2018; Sellar, 2015; Selwyn, 2014: 1; Williamson, 2017), have not yet been extensively examined (see West, 2017 for an important exception), representing a ‘black box’ for most education researchers and practitioners. In other words, as described by Selwyn (2014: 13–14), there remains a pressing need to better understand ‘[…] how various forms of digital data are [specifically] set to work within educational contexts, including what data is used, what the uses and consequences are, and how data has become embedded within different organisational cultures’.
With this paper, we seek to respond to this need by examining selected features of expanding data infrastructures, flows and practices of school monitoring in three state education agencies in two different national contexts, the Massachusetts Department of Elementary and Secondary Education (DESE) in the US and the Hamburg Department for Schools and Vocational Education (BSB) as well as the Institute for Educational Monitoring and Quality Improvement (IfBQ), an institution attached to the BSB, in Germany. In both (federally organised) countries, the past two decades have witnessed either a tremendous turn towards (Germany) or a significant expansion (US) of datafication in education, promoted by a strong national coalition for evidence-based policy, which resulted in an extensive implementation and transformation of data infrastructures and flows (Anagnostopoulos et al., 2013; Hartong, 2016, 2018a). Simultaneously, state education agencies in both countries have been urged to produce growing amounts of data and to use that data for more effective and efficient school leadership and monitoring, particularly but not limited to holding schools accountable for digital data production (González-Sancho and Vincent-Lancrin, 2016; Piattoeva, 2016). As a result, state education agencies have increasingly focused on and restructured themselves around data production, analysis, management and reporting, thus illustrating what Smith (2018: 3) recently described as the ‘dataism’ paradigm reshaping the everyday business of multiple actors and agencies.
While the main goal of our study is to unpack for school monitoring what Kitchin and Lauriault (2014) describe as ‘data assemblages at work’, we also seek to contribute to a growing number of studies that focus on how the datafication and digitalisation of educational governance has manifested across educational contexts and systems. Notwithstanding a clear globalness in terms of ongoing transformations and thus broad commonalities between datafication policies in various countries (e.g. Lingard et al., 2015; Williamson et al., 2018), such examinations have also identified the significant influence of local contexts – including cultural, social or institutional settings – resulting in a significantly different ‘re/territorialisation’ of data infrastructures, flows and practices (Hartong, 2018a). Two of many examples are Schildkamp and Teddlie’s (2008) analysis of School Performance Feedback Systems in the US and the Netherlands, and a comparative study on educational data production, availability and use in China, Russia and Brazil by Centeno et al. (2018). The study presented here complements such analyses of digital technologies sitting ‘alongside pre-existing cultures and structures of educational settings’ (Selwyn, 2013: 209), while simultaneously filling a gap by focusing on a key, yet widely under-researched actor in the digitalisation of education governance so far, namely state education agencies and their role as ‘data hubs’ between global, national and local data infrastructures and flows.
The following section is devoted to further, yet brief, conceptual and methodological explanations before we explore the results of the study, principally drawing on 16 interviews with 20 state agency experts conducted in Hamburg and Massachusetts between December 2017 and April 2018. Our particular emphasis hereby lies in documenting how the implementation of data-based school monitoring and leadership appears less as a purely technical procedure, but instead as a complex entanglement of very different (technical and social) logics, practices and problems. Specifically, we identify different types of ‘doing data discrepancies’, which, as we discuss in our conclusion, illustrate and conceptualise typical challenges associated with the pursuit of data, measurement and commensuration across many other domains of governmental or state activity, thus also offering important implications for the wider field of critical data studies.
