The Interference Fallacy
Consider three people who have never met.
The first runs a small business that sells through a dominant online marketplace. She would prefer to sell elsewhere, but her customers are on the platform and nowhere else, so she accepts its terms. The platform sets her fees, ranks her products beneath its own, studies what sells, and introduces a competing item under its house brand. Her prices to shoppers stay low, because the platform is relentless about low prices. By every measure the law currently uses, the shopper is well served and nothing is wrong. The seller knows better. She is a tenant on someone else’s land who competes only at the landlord’s sufferance, and the landlord reads her mail.
The second is a commuter who spends his day inside a quiet apparatus of observation. His phone reports his location, his car reports his driving, his search history is scored, his purchases are matched to a profile, and a dozen firms he cannot name hold a rendering of his habits more complete than his own memory. He agreed to all of it, in the sense that he clicked a box beneath a document he did not read, to use services he cannot function without. No single disclosure has harmed him. The harm, if there is one, has no moment and no location. It is simply the standing fact that he is known, and that the knowing belongs to someone else.
The third is a public official who cannot build. She administers a program meant to deliver housing, or transmission lines, or a rail connection, and she is qualified and well intentioned and entirely stuck. Every decision invites a challenge, every challenge invites a hearing, every hearing invites an appeal, and the process consumes the years that the building was supposed to occupy. She has authority on paper and none in fact. The power to act has been replaced by the power to be delayed, and the delay reliably favors whoever has the most lawyers and the longest patience.
American law files these three under three different headings. The first is antitrust, and we ask whether prices rose. The second is privacy, and we ask whether consent was obtained. The third is administrative law, and we ask whether process was followed. The three fields have their own journals, their own doctrines, and their own experts, and they almost never speak to one another. This essay argues that they are the same problem seen three times, and that our failure to see it has a single cause. Each field measures the wrong thing. Antitrust measures interference with price, privacy measures interference with a particular datum, administrative law measures interference with procedure, and all three look past the thing that actually makes the three people in these scenes unfree. That thing is domination, the standing capacity of one party to interfere in the choices of another on terms the other cannot contest. I will call the shared error the interference fallacy, and I will propose a common standard, the domination test, to replace it.
How we argue about freedom now
The interference fallacy has a respectable pedigree, and to dislodge it we have to see where it comes from. It descends from a particular picture of what freedom is.
The dominant picture is negative liberty, freedom understood as the absence of interference. Isaiah Berlin gave the classic statement of it, distinguishing a negative concept of liberty, freedom from interference by others, from a positive concept, freedom as self-mastery, and warning that the positive concept could be turned to coercive ends.[1] On the negative view, I am free to the extent that no one is actually stopping me from doing what I want. Freedom is measured act by act, interference by interference. A person subject to no present interference is, on this account, free, however precarious his position and however completely his options depend on another’s forbearance.
There is an older and, I will argue, a better picture, and it has been recovered over the last generation under the name of republican or neo-Roman liberty. Its central idea is that freedom means the absence of domination rather than the absence of interference, so that to be dominated is to live subject to another’s arbitrary power, to depend on their will whether or not they happen to exercise it against you. Philip Pettit built the modern theory, defining freedom as non-domination and drawing out its institutional demands.[2] Quentin Skinner traced the idea to the Roman law of slavery and to the English republicans, who understood that a slave with a kindly master is a slave still, because the master’s forbearance can be withdrawn at any time.[3] Frank Lovett gave the concept analytic precision, defining domination as dependence on arbitrary power and treating its minimization as a demand of justice.[4] The republican point is that the condition of unfreedom lies in the standing relationship rather than the discrete act. What makes the slave unfree is that he can be beaten at any time, on terms he cannot contest.
The two pictures divide on a first axis, then, over what freedom is. They divide on a second axis over where the threat to freedom comes from. The negative tradition, especially in its libertarian form, tends to locate the threat only in the state, treating the market and the contracts within it as the natural home of liberty. The republican tradition sees that private power dominates too. The hinge between the two is a piece of legal realism that remains as sharp as when it was written. Robert Hale showed a century ago that the entitlements we call private, property and contract, are constituted and enforced by state coercion, so that the distribution of “liberty” in a market is already a distribution of legally created power.[5] The libertarian who says the market is the realm of freedom and the state the realm of coercion has simply declined to notice that his freedom to exclude is my duty to comply, backed by the same sheriff.
Place the fields of law on these two axes and the whole terrain comes into view.
In antitrust, the efficiency school sits squarely in the negative-liberty, state-threat-only quadrant. Robert Bork’s achievement was to persuade a generation that antitrust should serve one goal, consumer welfare understood as allocative efficiency, and that concentration was benign so long as prices fell.[6] Frank Easterbrook supplied the enforcement corollary, the error-cost framework, arguing that because courts err, and because false positives are costlier and less self-correcting than false negatives, doctrine should tilt toward under-enforcement.[7] The neo-Brandeisian revival reintroduced the older worry about private power. Lina Khan showed that a price-centered antitrust cannot see the harm of platform dominance, and Tim Wu recovered antitrust’s origins as a check on concentration and a safeguard of democracy.[8] Zephyr Teachout and Khan mapped how market structure converts into political power.[9] The revival named the disease. It has been slower to supply a theory of the freedom that concentration violates, which is the gap this essay means to fill.
In privacy, the field has been moving along the same axis, from control toward power, without quite naming its destination. Alan Westin’s foundational account defined privacy as the individual’s control over the communication of information about himself, an account that underwrites the entire apparatus of notice and consent.[10] The structural critics have been pulling against it for years. Helen Nissenbaum showed that privacy is adherence to context-relative informational norms rather than simple secrecy or control.[11] Julie Cohen argued that privacy is a structural precondition for human flourishing and for democratic self-development, not a private preference to be traded away.[12] Shoshana Zuboff described an economic order that claims human experience as raw material for prediction and behavioral control.[13] Running alongside is the dignity tradition, which belongs in this company as an ally. James Whitman showed that the continental law of privacy is rooted in dignity, in protection against humiliation and the loss of standing in the eyes of others, where the American tradition has leaned on liberty against the state.[14] The dignity tradition and the domination tradition point at the same target from two directions, because to be watched and sorted and nudged by a power one cannot answer is both an affront to dignity and a form of subjection.
In administrative law and the study of state capacity, the division is between those who prize procedure and those who prize the ability to act. The critics of what Robert Kagan called adversarial legalism have shown that the United States governs through litigation, producing a state that is slow, fragmented, and captured by whoever can sustain a lawsuit.[15]Sean Farhang demonstrated that Congress builds private lawsuits into statutes as a substitute for bureaucratic capacity, choosing courts over agencies.[16] Nicholas Bagley named the deeper pathology, a fetish for procedure that mistakes constraint for legitimacy and disables effective government in the name of protecting the public from it.[17] Behind these sits Michael Mann’s distinction between despotic power, power exercised arbitrarily over society, and infrastructural power, the capacity to coordinate society and get things done.[18] And over the whole scene the Law and Political Economy movement has called for legal analysis to abandon its posture of efficiency-minded neutrality and to put power, democracy, and distribution back at the center.[19]
Set the map out fully and its most striking feature is an absence. Almost every school in almost every field has been arguing about interference, consent, or process, and almost none has named standing power as the thing all three are circling. That absence is the interference fallacy, and it is the opening.
Domination as the common wrong
Begin with the concept, stated plainly. To dominate someone is to hold power over them that is, first, asymmetric, concentrated in one party rather than dispersed among many. Second, arbitrary, uncontrolled by the will of the person subject to it or by any accountable check. And, third, standing, a capacity that persists whether or not it is presently exercised. These are the three markers of the domination test. Where all three are present, the subject is unfree in the republican sense, and unfree in a way that no accounting of prices, disclosures, or procedures will reveal.
The third marker is the one that does the most work, and the one the interference fallacy is built to miss. Domination is a condition rather than an event. The seller on the dominant platform is dominated even in the quarter when the platform treats her well, because the terms of her livelihood are the platform’s to alter and not hers to contest. The commuter is dominated even on the day no one looks at his file, because the file exists and the looking is not his to permit or refuse in any way that matters. A test that waits for interference to occur, for the price to rise or the datum to leak, will always arrive after the freedom has already been lost, because the freedom was lost when the power became standing.
Run the test through the three domains and the same structure appears each time.
In the market, the harm of dominance is the standing power to set the terms on which others may participate, to raise a rival’s costs, to foreclose the routes to customers, to copy and undercut a dependent seller, to dictate the conditions of a marketplace one firm controls. That power is asymmetric, arbitrary, and standing, and it is entirely compatible with low prices, which is precisely why the consumer welfare standard cannot see it. Prices matter, of course. The difficulty is that price is a symptom a dominant firm can suppress at will while the underlying power grows, so that the metric reads healthiest exactly when the domination is most secure. My argument in these pages about the COMPETE Act rested on this without naming it. The reason a single firm’s unilateral conduct deserves the law’s attention is that unilateral power over a market is a standing capacity to dominate, and a statute that reaches only agreements between firms leaves the largest form of private government untouched.
In the surveillance economy, the harm is the standing power to know, predict, and shape behavior, held by a party the subject cannot see, answer, or leave. Consent does not cure it, because consent to a standing power exercised through unreadable terms and unrefusable services amounts to a simulation of autonomy rather than its exercise. The dignity tradition sees the injury from one side, the humiliation of being exposed and sorted. The domination tradition sees it from the other, the subjection of living under a watching power one cannot hold to account. Even our constitutional law has begun to feel the difference, as when the Supreme Court recognized that continuous location tracking is a distinct kind of intrusion that the older doctrine of discrete disclosures could not capture.[20] Louis Brandeis saw it a century ago, warning in dissent that the progress of technology would give government and its private counterparts means of surveillance that would lay bare the intimacies of ordinary life, and grounding his objection in a right to be let alone that was, at bottom, a right against domination.[21]
In the state, the harm has two faces, and the republican frame is the only one that holds both at once. A state too weak to check private power leaves its citizens exposed to domination by firms, landlords, and employers, which is the condition the abundance critics rightly protest when they show that a government which cannot build cannot deliver the conditions of a free life. A state too unaccountable to be checked itself dominates, which is the condition the civil libertarian rightly fears. The negative-liberty tradition can only see the second, and so it treats every constraint on the state as a gain for freedom and every increase in capacity as a threat. The republican tradition sees the goal as a state with the capacity to prevent private domination and the accountable structure to be prevented from practicing public domination. A merely weak state fails the first half of that test, and a merely unchecked one fails the second. That is why proceduralism is not the friend of freedom it claims to be. A regime of pure process does not remove domination from the field. It reassigns it to whoever can outlast the process, and hands the public official in the third scene a set of duties without the power they were meant to carry.
The convergence is now visible. Market power, surveillance, and the incapable state are three instances of arbitrary standing power, over the terms of trade, over the facts of a life, and over the conditions of collective action. The remedy in each case has the same form, however different its content, and it is to take power that is concentrated, arbitrary, and standing and render it dispersed, accountable, and contestable. Break the firm or open its platform to interoperation so that the seller has somewhere else to go. Limit what may be collected and retained so that the watching power cannot accumulate, rather than asking each watched person to consent to it one box at a time. Build a state competent enough to act and structured enough to be held to its reasons. Three fields, three vocabularies, one standard.
What this account extends, fills, and answers
It will help the reader, and it will help the argument, to say plainly where this sits in the literature.
It extends an existing school. The application of non-domination to economic life is not new. K. Sabeel Rahman has applied an anti-domination standard to economic regulation and the governance of essential services, and Elizabeth Anderson has shown that the firm is a kind of private government that rules its workers through standing, largely unaccountable power.[22] Zephyr Teachout has recovered the structural, republican conception of corruption, the diversion of public power to private ends, against the narrow transactional definition the Supreme Court has entrenched.[23] What this essay adds is reach and unification. It carries the anti-domination standard out of the workplace and the regulated utility and into privacy and state capacity, and it argues that the three are one problem, which the existing scholarship hasn’t quite claimed.
It fills a gap the power-focused schools have left open. The neo-Brandeisians and the Law and Political Economy movement have been more persuasive in naming concentrated power as the enemy than in saying, with precision, why concentrated power is wrongful and how much of it is too much. The domination test supplies the missing normative criterion. It tells you what to look for, asymmetry, arbitrariness, and standing, and it distinguishes the concentrations that dominate from those that do not, which a bare hostility to bigness cannot do.
It answers the efficiency school on the ground the efficiency school has always claimed as its own, administrability. The standard objection to any power-based account is that power cannot be measured and efficiency can. The domination test is a workable legal standard, no more indeterminate than the rule of reason that antitrust courts already apply, and it points toward structural remedies that are easier to administer than the endless effects litigation the current standard produces. The efficiency school has spent forty years insisting that its rivals lacked rigor. The reply is a standard with three elements and a clear question.
What the critics will say, and what their criticisms conceal
A frame worth adopting is a frame worth attacking, and the strongest attacks come from five directions. Each deserves its best statement, a direct answer, and then a harder look at what the objection itself assumes.
The libertarian objection. The first criticism comes from the negative-liberty tradition, from Berlin’s heirs and from Hayek and Nozick. To police domination, it runs, you must empower a state to identify and undo it, and a state with that discretionary reach is the most dangerous dominator of all. Freedom is better served by a government tightly bound and a private sphere left alone, even at the cost of tolerating private inequality, because the alternative is the slow road to servitude.
The answer is that republican theory is not a license for an unbounded state. It is, from Pettit forward, a theory about how to constrain power through contestability, the division of authority, and the rule of law, so that public action is subject to the check of those it affects.[24] Non-domination does not ask government to maximize its interference. It asks that power, public and private alike, be made answerable. A legal intervention that is general, prospective, and contestable does not dominate the firm it regulates, any more than a speed limit dominates the driver. The tradition has the resources to tell dominating from non-dominating public power, which is exactly the distinction the negative view cannot draw, because it counts all interference alike.
Now the harder look. The libertarian objection conceals a choice it does not admit to making. It treats domination as a wrong when the state is the agent and as freedom when a private party is the agent, though the structure of the power is identical. That is a substantive and unargued preference for one set of dominators over another, offered in the guise of a neutral theory of liberty. Hale’s insight is the solvent here. The property and contract rights the libertarian calls the sphere of non-interference are creatures of state coercion, enforced by the same public power he distrusts, so the market he calls free is already a distribution of legally constructed dominion.[25] The negative-liberty view does not fail to answer the problem of private domination. It is constructed so that private domination never comes into view, and a theory that cannot see the most common form of unfreedom in a commercial society functions as an apology for a particular arrangement of it rather than as a theory of freedom.
The law-and-economics objection. The second criticism comes from Bork’s and Easterbrook’s descendants. Efficiency, it says, gives a court something it can measure, a price, an output, a quantifiable effect, while domination is a moralized abstraction that no judge can apply without smuggling in his politics. Worse, a vague standard invites false positives, and false positives condemn the very conduct that benefits consumers.
The answer begins by conceding what is true. Standards must be administrable, and a test no court can run is no use. But the domination test is administrable. It asks whether a party holds power over others that is concentrated, arbitrary, and standing, and courts answer questions of that shape constantly, in the rule of reason, in unconscionability, in the law of fiduciaries. Structural remedies, moreover, reduce the administrability problem rather than adding to it, because a rule that bars a dominant platform from self-preferencing, or caps what data may be retained, is easier to apply than a decades-long inquiry into net effects. As for false positives, the error-cost framework is a decision to prefer one kind of mistake over another, dressed as a neutral piece of arithmetic, and that decision has produced, over forty years, an economy of entrenched dominance that the predicted self-correction never arrived to fix.
The harder look exposes what the objection conceals, which is that its vaunted precision is a performance. Consumer welfare analysis is saturated with contestable choices, over which effects to count, over what time horizon, over whose welfare matters and whose is ignored, and it makes those choices inside models whose assumptions are rarely stated and never voted on. It then presents the result as measurement. This is more dangerous than an openly normative standard, not less, because it removes value-laden decisions from the arena of public argument and re-labels them as science, which is arbitrary power in its most refined form, the kind that need not answer because it claims not to choose. And the framework’s founding premise, that false positives cost more than false negatives, is itself a bare stipulation, one the record of durable monopoly directly contradicts. A school that demands rigor of everyone else and exempts its own first principle from scrutiny has not escaped politics. It has hidden it.
The Law and Political Economy objection. The third criticism comes from the left of the power-focused scholars, and it is the most searching. Non-domination, they say, is a liberal idea wearing radical clothing. It is individualist, concerned with the standing of persons rather than the structure of classes, and it can be satisfied by procedural contestability, by giving people a formal voice, while the underlying distribution of wealth and power goes untouched. The real work is done by attention to power and distribution, and a freedom norm risks legitimating markets by certifying them as merely contestable.[26]
The answer is that non-domination is structural, and its critics on this point have mistaken it for its liberal cousins. The test does not ask whether a hearing was held. It asks whether one party holds standing, arbitrary power over another, which is a fact about how power is organized and distributed, not about the observance of forms. This is why Rahman aims it at the control of infrastructure and why Anderson aims it at the government of the firm. It reaches structure directly. Far from competing with distributive analysis, it supplies what distributive analysis lacks, an account of why the concentration is wrongful and not merely unequal.
The harder look turns the objection around. An analysis built on power and distribution alone has no limiting principle and no theory of legitimacy, because power is unequally held in every human arrangement that has ever existed, and inequality as such cannot be the wrong without condemning all social life. To say which inequalities are intolerable, the power-focused critic must reach for some criterion beyond the fact of inequality, and when he does, he reaches, usually without admitting it, for something very like non-domination, the idea that what makes a power relation wrongful is that it subjects one will arbitrarily to another. The Law and Political Economy movement needs a normative foundation to keep it from collapsing into an undifferentiated suspicion of power, and non-domination is the foundation it has been most reluctant to name. Far from retreating from that movement, this essay’s frame names the ground the movement has been standing on without looking down.
The privacy-as-consent objection. The fourth criticism comes from the liberal defenders of the control paradigm. Privacy, they say, is an individual interest in governing information about oneself, and individuals are entitled to trade it as they see fit. Notice-and-consent respects that autonomy. To recast privacy as a matter of freedom and domination is to inflate a personal preference into a political cause and to license the state to override the choices people make about their own data.
The answer is that the consent paradigm has failed on its own chosen terms. It promised autonomy and delivered the click-through, agreement to terms no one reads, for services no one can decline, on pages designed to be waved past. Domination explains the failure. When one party holds concentrated, standing power over access to the essential infrastructure of modern life, the consent it extracts registers a foregone conclusion rather than the exercise of a free will.[27] To insist that privacy is a precondition of a self-directed life, as Cohen argues and as the dignity tradition independently confirms, is far from paternalism. It recognizes that choice requires conditions, and that a power which sets those conditions unilaterally has already made the choice.
The harder look shows that the control paradigm is complicit in the harm it purports to prevent. By defining privacy as an individual entitlement that consent can waive, it manufactures precisely the legitimacy that a surveillance economy requires, converting a structural relation of domination into a matter of paperwork and thereby laundering it. It commits a second error as well, in treating as individual a harm that is collective. My consent sets terms that bind others, since the model built from my data is applied to people who never clicked anything, and the architecture of observation is not something any one person can opt out of by declining a box. The paradigm that presents itself as the guardian of autonomy is the instrument through which autonomy is signed away, one unread agreement at a time.
The proceduralist objection. The fifth criticism comes from the civil libertarian and the proceduralist, and it must be taken seriously because it defends something real. The historic threat to liberty, it says, is the state, and the safeguards that protect the individual against it, due process, judicial review, the right to be heard and to challenge, are the hard-won architecture of freedom. To celebrate state capacity and to complain of a procedure fetish is to invite the very concentration of unaccountable public power that the safeguards exist to prevent.
The answer is that the republican does not ask for capacity without accountability. He asks for both, and insists they are compatible. A state can be competent enough to check private domination and structured enough to be held to its reasons, through transparency, through reasoned decision subject to review, through democratic control. The proceduralist has misread the republican as an enemy of the safeguards, when the disagreement is narrower and sharper. It is that process which disables the state without disabling private power does not reduce domination. It relocates it.
The harder look shows that pure proceduralism has a distributive signature it prefers not to acknowledge. Process is not free and not neutral. It costs time, money, and expertise, and it therefore favors the party with the most of each, which in the ordinary case is the incumbent, the concentrated firm, the repeat player who can afford to litigate every delay to the end.[28] A regime of endless procedure amounts to a particular allocation of domination, tilted toward the powerful and dressed in the language of rights. The civil libertarian’s fear of the dominating state is one the republican shares, which is exactly why the republican answer is accountable capacity rather than no capacity. The proceduralist offers only the second, and in doing so he does not protect the citizen from power. He leaves the citizen to face the one form of power his safeguards were never designed to reach, the private kind, alone.
The standard we mislaid
Return to the three people. The seller, the commuter, and the official are not the victims of three unrelated misfortunes. They are three citizens standing in the same relation to power, subject to a capacity, held by another, to set the terms of their lives on conditions they cannot contest. That the law greets each of them with a different question, and a question aimed away from their actual complaint, is the practical cost of the interference fallacy. We ask the seller whether prices rose, the commuter whether he consented, the official whether she followed the steps, and in each case the question is precisely engineered to miss the domination that is the whole of the matter.
The recovery on offer is not novel, which is a point in its favor rather than against it. American law once knew that concentration was a threat to liberty and not only to consumers, that surveillance was a subjection and not only a disclosure, and that a government too hobbled to act could leave its citizens at the mercy of private power. The anti-monopoly tradition, the constitutional suspicion of surveillance, and the old confidence that the state should be able to do the things a free people needs done were, at their root, one commitment, expressed in three registers. That commitment was to freedom understood as the absence of domination. We mislaid it when we persuaded ourselves that freedom is only the absence of interference, and that everything else, the standing power, the arbitrary discretion, the dependence on another’s forbearance, was somebody else’s department or no one’s concern.
Naming the interference fallacy is the first step toward putting the commitment back. The domination test is a proposal for the second. It will not resolve every case, and the remedies it points toward will differ across the three fields as much as a breakup differs from a data-retention limit and both differ from an appropriation for an agency that can build. But a common diagnosis is the precondition for progress on any of them, because a field that has misidentified the disease will keep prescribing for the symptom. The task now is to hold the standard steady across the three domains and to let it do its work, so that the next time a seller, a commuter, or an official comes to the law with a complaint about power, the law is at last equipped to hear what they are actually saying.
[1] Isaiah Berlin, Two Concepts of Liberty (1958), reprinted in Four Essays on Liberty 118 (1969) (distinguishing negative liberty as the absence of interference from positive liberty as self-mastery, and warning that the latter can be turned to coercive ends).
[2] Philip Pettit, Republicanism: A Theory of Freedom and Government (1997) (reconstructing freedom as the absence of domination rather than the absence of interference and drawing out its institutional demands).
[3] Quentin Skinner, Liberty before Liberalism (1998) (recovering the neo-Roman conception of freedom as not living in dependence on another’s will).
[4] Frank Lovett, A General Theory of Domination and Justice (2010) (defining domination as dependence on arbitrary power and treating its minimization as a requirement of justice).
[5] Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 Pol. Sci. Q. 470 (1923) (arguing that property and contract are enforced through state coercion, so that market liberty is itself a distribution of legally constructed power).
[6] Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself (1978) (contending that consumer welfare understood as allocative efficiency should be the sole aim of antitrust).
[7] Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev. 1 (1984) (proposing error-cost filters that tilt doctrine toward under-enforcement on the premise that false positives are costlier than false negatives).
[8] Lina M. Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710 (2017) (showing that a price-centered antitrust cannot perceive the harms of platform dominance); Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age (2018) (recovering antitrust’s origins as a check on concentration and a safeguard of democratic self-government).
[9] Zephyr Teachout & Lina Khan, Market Structure and Political Law: A Taxonomy of Power, 9 Duke J. Const. L. & Pub. Pol’y 37 (2014) (mapping how concentrated market structure is converted into political power).
[10] Alan F. Westin, Privacy and Freedom (1967) (defining privacy as the claim of individuals to control when, how, and to what extent information about them is communicated).
[11] Helen Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life (2010) (arguing that privacy consists in adherence to context-relative informational norms); see also Helen Nissenbaum, Privacy as Contextual Integrity, 79 Wash. L. Rev. 119 (2004) (introducing the contextual-integrity framework).
[12] Julie E. Cohen, What Privacy Is For, 126 Harv. L. Rev. 1904 (2013) (arguing that privacy is a structural precondition for self-development and democratic culture rather than an individual luxury); see also Julie E. Cohen, Between Truth and Power: The Legal Constructions of Informational Capitalism (2019) (showing how law is reshaped by and helps constitute informational capitalism).
[13] Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (2019) (describing an economic logic that claims human experience as raw material for behavioral prediction and control).
[14] James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 Yale L.J. 1151 (2004) (contrasting a continental privacy law rooted in dignity with an American tradition rooted in liberty against the state).
[15] Robert A. Kagan, Adversarial Legalism: The American Way of Law (2001) (arguing that the United States makes and implements policy through litigation, producing costly and fragmented state action).
[16] Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010) (showing that Congress builds private lawsuits into statutes as a substitute for bureaucratic enforcement capacity).
[17] Nicholas Bagley, The Procedure Fetish, 118 Mich. L. Rev. 345 (2019) (contending that procedural constraints frequently undermine rather than confer legitimacy and disable effective, accountable government).
[18] Michael Mann, The Autonomous Power of the State: Its Origins, Mechanisms and Results, 25 Eur. J. Socio. 185 (1984) (distinguishing despotic power exercised arbitrarily over society from infrastructural power to coordinate it).
[19] Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784 (2020) (calling for legal analysis that re-centers power, democracy, and distribution in place of an efficiency-minded neutrality).
[20] Carpenter v. United States, 585 U.S. 296 (2018) (holding that the government’s acquisition of continuous cell-site location records is a search, and recognizing that aggregated tracking differs in kind from discrete disclosures).
[21] Olmstead v. United States, 277 U.S. 438, 473-79 (1928) (Brandeis, J., dissenting) (warning that advancing technology would enable pervasive surveillance and grounding the objection in a right to be let alone).
[22] K. Sabeel Rahman, Democracy Against Domination (2016) (applying an anti-domination standard to economic regulation and the governance of essential services); Elizabeth Anderson, Private Government: How Employers Rule Our Lives (2017) (characterizing the firm as an unaccountable private government that dominates workers).
[23] Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United (2014) (recovering a structural, republican conception of corruption as the diversion of public power to private ends).
[24] Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (2012) (arguing that legitimacy requires public power to be subject to the equal, contestatory control of those it affects).
[25] Hale, supra note 5 (demonstrating that the private entitlements said to constitute market freedom are themselves state-enforced coercion).
[26] See Britton-Purdy et al., supra note 19 (urging attention to power and distribution as the center of legal analysis).
[27] See Cohen, Between Truth and Power, supra note 12 (arguing that informational capitalism structures the conditions under which consent is given); Zuboff, supra note 13 (describing the asymmetries of knowledge and power that render individual consent illusory).
[28] See Kagan, supra note 15 (showing that adversarial process advantages well-resourced repeat players); Bagley, supra note 17 (arguing that proceduralism can entrench the advantages of those able to sustain litigation).