(with Paul Rabinow & Gaymon Bennett) ‘From theory to
inquiry?’ (2014) 20:2 Journal of the Royal Anthropological Institute
362-366
‘Law after anthropology. Object and technique in Roman law’
(2014) 31:2&3 Theory, Culture & Society 147-166
Anthropological scholarship after Marilyn Strathern does something that might surprise lawyers schooled in the tradition of ‘law and society’, or ‘law in context’. Instead of construing law as an instrument of social forces, or as an expression of processes by which society maintains and reproduces itself, a new mode of anthropological enquiry focuses sharply on ‘law itself’, on what Annelise Riles calls the ‘technicalities’ of law. How might the legal scholar be inspired by this approach? In this article, I explore one possible way of approaching law after anthropology, which is to find within law’s own archive a set of resources for an analogous representation of law itself. Drawing on the historical scholarship of Yan Thomas, I suggest that the Roman conception of law as object offers an engaging counterpart to the anthropological take on law as a specific set of tools or, technicalities, or as a particular art of making relations.
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‘No (more) logo. Plain packaging and communicative agency’
(2013) 47 UC Davis Law Review 101-131.
The tobacco industry’s archives suggest that the global
campaign for the plain packaging of tobacco products originated in 1986, when
the Canadian Medical Association passed a resolution calling for cigarettes to
be sold in packages bearing only a brand name and the health message ‘this
product is injurious to your health’. In most jurisdictions, regulations
requiring the apposition of health warnings to cigarette packs have been in
force for decades. Proposals for plain packaging aim to go further, and
eliminate the visual and tactile features that turn cigarette packs into ‘badge’
wrappers, and which express the subliminal messages that diminish or subvert the
effect of even the most uncompromising health messages. Given that effective
plain packaging regulations would severely restrict the tobacco companies’
ability to exploit their trademarks or rights in trade dress, the question of
the domestic or international ‘constitutionality’ of such restrictions has
become an essential ground for the industry’s contestation of plain packaging
measures. When it passed the Tobacco Plain Packaging Act of 2011, which came
into force on December 1 2012, Australia became the first nation in the world to
impose a mandatory scheme of plain packaging, and, in the process, the first
jurisdiction to adjudicate on the constitutionality of plain packaging. Plain
packaging legislation raises a number of engaging theoretical and practical
questions: about the legal qualities of the intellectual property rights that
articulate branding strategies, about the relationship between the regimes of
international trade law and world health policy, and about the history of
regulatory initiatives to address the public health implications of smoking.
Here, I am interested questions about the communicative agency of the mass
media: what does the example of Australia’s plain packaging laws tell us about
the role played by the surfaces of material wrappers and packages in branding
practices?; how do brands articulate with the other strands of the mass media?
(with Brad Sherman) ‘On the prehistory of intellectual
property’ in Howe & Griffith (eds) Concepts of Property in Intellectual
Property (Cambridge: CUP, 2013) 11-28.
One starting point for Hohfeld’s analysis of fundamental legal
conceptions is Justice Holmes’ observation that ‘[i]t is one of the misfortunes
of law that ideas become encysted in phrases and thereafter for a long time
cease to provoke further analysis’.[1] We focus in this chapter on one such
‘encysted’ idea; namely, the compound assumption that intellectual property
rights relate to ‘ideas’, that ideas are intangible things, and that the
architecture and operation of intellectual property rights is shaped by a real
difference between tangible and intangible things. In the language of modern
intellectual property scholarship, ideas are said to be by nature non-excludable
and non-rivalrous;[2] no person can be prevented from accessing and possessing
an idea that has been publicly disclosed, and no person’s use restricts or
diminishes the use of another. In this chapter, we challenge this premise by way
of a return to what might be called the prehistory of intellectual property
rights; more precisely, the history of a period in which literary and artistic
productions were construed as material things rather than the embodiments of
intangible works. We draw on the history of tabula picta to make a simple point;
intellectual property rights are not peripheral, exceptional, fictional, or
tenuously analogous forms of true property rights. Ultimately, our suggestion is
that, far from being the poor relation of ‘true’ property rights, the making of
intellectual property rights exemplifies what is involved in the emergence and
maintenance of property rights in even the most material of things.
‘Ius resistendi. Resistance as reflexivity’ in Bauer, Harré &
Jensen (eds) Resistance and the Practice of Rationality (Cambridge:
Cambridge Scholars, 2013) 262-281.
(with Claire Marris), ‘The cut that makes a part’ (2012) 7(2)
Biosocieties 103-114.
(with George Gaskell & Sally Stares), ‘How Europe's ethical
divide looms over biotech law and patents’ Nature Biotechnology (2012)
30(5) 392-394.
'The materiality of what?' J. Law & Soc. 2012, 39(1),
167-183.
Argues that Bruno Latour's claim that any mode of social
analysis, including legal studies, must engage with the agency of material
artefacts, extends actor-network theory to include the communicative dimension
of "regimes of enunciation". Discusses Latour's account of law as enunciation in
his ethnography of law-making in the French Conseil d'Etat, that was published
in 2002. Assesses the materiality of law conceived as a regime of enunciation.
Forensic machinery' (2011) 43 Cabinet 75-80.
'Law machines. Scale models, forensic materiality, and the
making of modern patent law', (2011) 41 Social Studies of Science
621-643.
Early US patent law was machine made. Before the Patent Office
took on the function of examining patent applications in 1836, questions of
novelty and priority were determined in court, within the forum of the
infringement action. And at all levels of litigation, from the circuit courts up
to the Supreme Court, working models were the media through which doctrine,
evidence and argument were made legible, communicated and interpreted. A model
could be set on a table, pointed at, picked up, rotated or upended so as to
display a point of interest to a particular audience within the courtroom, and,
crucially, set in motion to reveal the 'mode of operation' of a machine. The
immediate object of demonstration was to distinguish the intangible invention
from its tangible embodiment, but models also 'machined' patent law itself.
Demonstrations of patent claims with models articulated and resolved a set of
conceptual tensions that still make the definition and apprehension of the
invention difficult, even today, but they resolved these tensions in the
register of materiality, performativity and visibility, rather than the register
of conceptuality. The story of models tells us something about how inventions
emerge and subsist within the context of patent litigation and patent doctrine,
and it offers a starting point for renewed reflection on the question of how
technology becomes property.
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'Biotechnology as environmental regulation' in Andreas
Philippopoulos-Mihalopoulos (ed), Law and Ecology. New Environmental
Foundations (London: Routledge, 2011), 105-125.
(with Brad Sherman) 'Kinds, clones, and manufactures', in
Biagioli, Jaszi & Woodmansee (eds), Making and Unmaking Intellectual
Property. Creative Production in Legal and Cultural Perspective (Chicago:
University of Chicago Press, 2011), 269-283.
Review of Golder & Fitzpatrick, Foucault's Law (2011) 74
Modern Law Review 159-168.
'Fiction science and proprietary effect' in J-P Gaudilliere &
D Kevles (eds), Living Properties (Max Planck History of Science
Preprint, 2009) 225-239.
'Protocell patents. Property between modularity and emergence'
in M. Bedau & E. Parke, The Ethics of Protocells. Moral and Social
Implications of Creating Life in the Laboratory (Cambridge MA: MIT Press,
2009) 165-182.
Teams
of scientists around the world are racing to create protocells—microscopic,
self-organizing entities that spontaneously assemble from simple organic and
inorganic materials. The creation of fully autonomous protocells—a technology
that can, for all intents and purposes, be considered literally alive—is only a
matter of time. This book examines the pressing social and ethical issues raised
by the creation of life in the laboratory. Protocells might offer great medical
and social benefits and vast new economic opportunities, but they also pose
potential risks and threaten cultural and moral norms against tampering with
nature and "playing God." The Ethics of Protocells offers a variety of
perspectives on these concerns.
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'Fabled Animals' - Review of Michel Serres (translated
by Lawrence R. Schehr) The parasite, in Biosocieties (2008),
3:452-455
Alain Pottage & Brad Sherman, 'Organisms and manufactures: on the history of
plant inventions' (2007) 31:2 Melbourne University Law Review 539-568.
This article examines the nature of the
invention in intellectual property law. Taking the
United States' Plant Patent Act of 1930 as its central
focus, it explores the terms in which the compatibility
of biological inventions with the modern paradigm of the
invention was debated in the first part of the 20th
century. The questions addressed in the debates leading
up to the enactment of the Plant Patent Act of
1930--what kinds of plant qualified as patentable
subject matter; what exactly did a breeder have to do in
order to qualify as an inventor; and what was the
relationship between the act of invention and the act of
reproducing the invention--were ultimately questions
about the consistency of ideas and the nature of
manufacture, the answers to which are as pertinent today
as they were some 80 years ago. We argue that in
answering these questions, the traditional notion of the
invention was redefined. Whereas traditional utility
patents were based on the assumption that the only actor
able to exercise agency in relation to the development
of a novel invention was the human inventor, the regime
of plant patents acknowledged that nature played a key
role in the creation of new plant varieties. By altering
the concept of agency that underpins the inventive
process within patent law, plant patent law
fundamentally changed the way that the invention was
configured. In particular, whereas mechanical inventors
were inventors at the beginning, breeders were inventors
after the fact. At the same time, plant patent law also
reversed the roles normally played by the participants
involved in the creation of the invention. Under
traditional patent doctrine, nature provided the
material which was then shaped into an invention by the
human inventor. In the case of plant patents, nature did
the inventing, and the breeder was relegated to the task
of identifying and then reproducing nature's creations.
One of the consequences of this is that breeders did not
create a new genetic principle--instead, they
inductively appropriated a natural event. This changed
the premise of invention--invention became an inductive
rather than an originating act. Using the doctrinal
requirement of enablement as a case study, we show how
the reconfiguration of the invention had and continues
to have important ramifications for the way that plant
inventions, as with biological inventions more
generally, are dealt with by intellectual property law.]
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‘The Socio-Legal Implications of the New Biotechnologies’ (2007) Annu. Rev.
Law Soc. Sci.
2007. 3:3.1–3.24
This review explores a number of
legal-theoretical studies of the encounter between law
and biotechnology. Rather than attempt an extensive
compilation of scholarship, the review focuses on those
studies that have addressed the effects that
biotechnologies (understood in the broadest sense) have
had on the composition of legal form. Although the
relation between law and biotechnology is often seen as
being one in which law is applied to biotechnology as a
kind of prohibitory limit or regulatory force, this
review explores some of the ways in which
biotechnological programs have challenged and eroded the
conceptual form of law. The hypothesis is that there is
an antagonistic relation between law and biotechnology
and that this antagonism is brought out in scholarship
relating to the key areas in which the encounter between
law and biotechnology is played out: intellectual
property, governance and regulation, and those domains
of law that have incorporated technologies of DNA
fingerprinting.
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‘Conflicts of Laws:
Comparing Autochthonous Legal Cultures' in Stephan Stetter, ed. Territorial
Conflicts in World Society: Modern Systems Theory, International Relations and
Conflict Studies
(New International Relations Series; Routledge, 2007)
By bringing into dialogue modern systems theory and
international relations, this text provides theoretically innovative and
empirically rich perspectives on conflicts in world society.
This collection contrasts Niklas Luhmann’s theory of
world society in modern systems theory with more classical approaches to the
study of conflicts, offering a fresh perspective on territorial conflicts in
international relations. It includes chapters on key issues such as:
-- conflicts and human rights -- conflicts
in the Middle East and sub-Saharan Africa -- war and violence --
Greek-Turkish relations -- conflict theory -- the role of states
in world societal conflicts -- legal territorial disputes in Australia
-- hegemony and conflict in global law -- conflict management after 9/11.
While all contributions draw from the theory of world
society in modern systems theory, the authors offer rich multi-disciplinary
perspectives which bring in concepts from international relations, peace and
conflict studies, sociology, law and philosophy.
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‘Materialities in Life and Law: Informatic Technologies and Industrial Property’
(2006) 15(1)
Paragrana 82-101.
‘Too much ownership: bioprospecting in the age of synthetic biology’ (2006) 1(2)
Biosocieties
137-159.
Taking the example of Craig Venter’s marine bio-prospecting
expedition, this article explores the effects that bioinformatics and sequencing
technologies have had upon the process of bio-prospecting. What kind of an
aggregate is a collection that spans evolutionary ecologies, database logics and
programmable synthetic organisms? And by means of what displacements,
translations and topologies are genetic collections ‘made up’ in the age of
bioinformatics and synthetic biology?
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‘Fabricating persons and things’ and ‘Our original inheritance’ in Alain Pottage
& Martha Mundy, eds.,
Law, Anthropology and the Constitution of the Social. Making Persons
and Things (Cambridge:Cambridge University Press, 2004).
This collection of interdisciplinary essays explores how
persons and things - the central elements of the social - are fabricated by
legal rituals and institutions. The contributors, legal and anthropological
theorists alike, focus on a set of specific institutional and ethnographic
contexts, and some unexpected and thought-provoking analogies emerge from
this intellectual encounter between law and anthropology. For example,
contemporary anxieties about the legal status of the biotechnological body
seem to resonate with the questions addressed by ancient Roman law in its
treatment of dead bodies. The analogy between copyright and the transmission
of intangible designs in Melanesia suddenly makes western images of
authorship seem quite unfamiliar. A comparison between law and laboratory
science presents the production of legal artefacts in new light. These
studies are of particular relevance at a time when law, faced with the
inventiveness of biotechnology, finds it increasingly difficult to draw the
line between persons and things.
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‘Who owns academic knowledge?' (2004) 24(2) Cambridge Anthropology 1-20.
‘Persons and things. An ethnographic analogy’ (2001) 30:1 Economy & Society
112 138.
This article explores some parallels
between the ethnographies of Marilyn Strathern and Bruno
Latour. More precisely, it distinguishes Latour's models
of a symmetrical alliance between humans and non-humans
from Strathern's conception of an ethnographic
analogy,which finds (in the context of Melanesia) a mode
of social action that is indifferent to the modern
distinction between persons and things. This theoretical
inquiry takes as its theme the question of the ownership
of genetic tissues, which not only affords a topical,
concrete, context for the exploration of theoretical
issues, but also offers a persuasive illustration of the
critique of 'symmetry' that unfolds from the perspective
of Strathern's ethnographic analogy
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