Articles by Gordon Hull

I have just posted a version of my SPEP paper from last fall to SSRN, “One View of the Dungeon: The Ticking Time Bomb between Governmentality and Sovereignty” The paper is a critique of one of the standard justifications for torture: “what if there were a ticking time bomb about to blow up Manhattan, and you have the terrorist. Would you torture him to save the lives of millions?” Versions of this argument show up in most efforts to justify torture, and its soundness has been thoroughly criticized by writers such as Kim Scheppele and David Luban. My paper takes a different tack, and tries to understand how the TTB functions as a rhetorical device. The gist of my argument is that it sanitizes the torture question of any real world difficulties, thereby making it appear as an act of governmental efficiency. I frame the paper in terms of Judith Butler’s work on administration detention policies, and in particular her appropriation of Foucault in that essay.

I’ve been accumulating a long file of writing notes and references since SPEP that do not appear in the current version of the paper; I suspect that I will end up with a second paper that goes into much greater detail on the efficiency arguments (as distinct from the rhetorical structure of the TTB scenario). But I am interested in what folks who have an interest in the topic think about the paper as it stands; part of my motivation in posting the current draft is to get myself kick-started into working on the next iteration.

Gordon

As I indicated in my comments on an earlier thread about waste, I’ve been working on a paper about Locke’s waste proviso and its application to intellectual property law. Here is (what I hope to be) a pentultimate draft:

Locke, The Waste Proviso, and the Moral Justification of Intellectual Property

It’s long - aside from the usual typo cleanup, one of the main things I’ll be working on before sending it out is concision. Another will be reading and including some of the papers mentioned in the waste thread. In any case, comments are welcome. What follows is the first page or so of the paper, which should serve as an abstract/guide for where I’m going.

ABSTRACT:

Defenders of strong intellectual property rights or of a non-utilitarian basis for those rights often turn to Locke for support. Perhaps because of a general belief that Locke is an advocate of all things proprietary, this move seldom receives careful scrutiny. That is unfortunate for two reasons. First, as I will argue, Locke does not issue a blank check in support of all property regimes, and the application of his reasoning to intellectual property would actually result in a substantially limited rights regime. Second, the attempt to understand intellectual property as an instance of Lockean property, though admittedly anachronistic, offers an opportunity to further our understanding of Locke’s own thought. My major claim will thus be twofold: on the one hand, intellectual property would be an almost paradigmatic case of Lockean property; on the other hand, Locke’s provisos - specifically the widely neglected spoilage proviso - would sharply limit the scope of such entitlements. My secondary claim will be that the spoilage proviso’s neglect is undeserved, and that it deserves a more central place in our understanding of Locke.

The paper proceeds as follows. In the first part, I will examine Locke’s own writings on English print licensing law, which formed the backdrop against which the original copyright statute was developed. In part 2, I attempt to resurrect the spoilage proviso. Part 3 explains why intellectual property would be a paradigm case of Lockean property more broadly. On the basis of the preceding textual work, part 4 attempts a conceptual clarification of waste in Lockean terms, and part 5 applies that analysis to some contemporary intellectual property issues.