New APPS: Art, Politics, Philosophy, Science

The NRA went down to Georgia

I live in North Carolina, the state legislature for which has been basically bought by Art Pope, a smaller-scale Koch brother (the Koch brothers themselves, meanwhile, have been successfully buying the federal government).  The NC legislature has done some truly staggering things, so I’m pretty jaded on the topic of what state legislatures can do.  But the sheer cynicism of the Georgia GOP is worth noting.  When Delta Airlines decided to end its discount program for NRA members, Georgia’s lieutenant governor Casey Cagle immediately took to Twitter to announce that he would scuttle a tax break the airline was about to receive. Cagle, of course, has an A+ rating with the NRA and has received the organization’s endorsement.

In any sane universe, this would inspire a talk about whether Cagle’s behavior broke laws against corruption.  Therefore, it’s legal in this universe and no doubt the NRA is just exercising it’s Free Speech money-words in manner that just happened to be persuasive.  Just like the Charles Koch and his wife weren’t in any way involved in corruption when they sent a $500,000 check to Paul Ryan’s campaign almost immediately after the GOP passed its handout to billionaire donors tax reform package.

Good riddance to yet another corporate giveaway. The problem here is the process, not the unexpectedly happy result (some Georgia conservatives even learned the term "crony capitalism" once their brothers in the NRA had been made to suffer so greatly), but in the meantime, Mr. Cagle, I don’t know what bet you lost, but the NRA got your soul.

John Perry Barlow (1947-2018)

John Perry Barlow, Grateful Dead lyricist and one of the early advocates for a libertarian cyberspace free of governmental regulation, as well as founder of the Electronic Frontier Foundation (EFF), died yesterday.  The EFF notice is here.  Barlow is perhaps best known for his "Declaration of the Independence of Cyberspace."  As we look at  a world where authoritarian  governments use Twitter to arrest and imprison protesters, and where  the NSA is apparently intercepting and recording pretty much everything online, Barlow's vision can seem too optimistic, or even naive.  But viewed as critique, it also reminds us that the Internet is a human creation, and its regulation can be changed by human laws and human interventions.  The EFF is a lasting contribution to that critical vision, and is a frequent litigant defending privacy and other rights online.

I had the chance to bring Barlow in for a talk many years ago when I was  at Colorado College.  He was thoughtful, engaged, and a genuine pleasure to host.  He will be missed.

Healthcare and the Nature of the Firm

By Gordon Hull

Yesterday, a group of very rich and influential corporations – Amazon, Berkshire Hathaway and JPMorgan Chase – announced that they would be teaming up to form an independent healthcare company for their employees.  From the NYT:

“The alliance was a sign of just how frustrated American businesses are with the state of the nation’s health care system and the rapidly spiraling cost of medical treatment. It also caused further turmoil in an industry reeling from attempts by new players to attack a notoriously inefficient, intractable web of doctors, hospitals, insurers and pharmaceutical companies.  It was unclear how extensively the three partners would overhaul their employees’ existing health coverage — whether they would simply help workers find a local doctor, steer employees to online medical advice or use their muscle to negotiate lower prices for drugs and procedures. While the alliance will apply only to their employees, these corporations are so closely watched that whatever successes they have could become models for other businesses.”

The CEOs were very clear that they weren’t sure what they were going to do, but that they intended to improve the healthcare cost problem for their employees and corporations.  This announcement falls only a couple of weeks after a consortium of hospitals announced that they’d be forming an independent drug company to supply them with cheap generic drugs.  That announcement was spurred in part by the recent behaviors of investors who scoop up old drugs for rare diseases, and then raise the price enormously, knowing that the drug is uncommon enough that there won’t be market competition.  But the behavior of those who exponentially raise the prices of EpiPens and Daraprim is really only an exemplar of the more general pricing strategy of Pharma, as the Times reported with regard to the doubling of the price of rheumatoid arthritis drug Humira since 2012. 

What the Amazon/JPMorgan/Berkshire Hathaway consortium and the hospital consortium have in common, then, is that they are committing to find new ways to make health care cheaper.  And they are doing so by attempting to internalize costs that they would otherwise have to pay for on the market.  Two thoughts:

Intellectual Property, Creative Commons and Neoliberal Biopower

By Gordon Hull

In “Intellectual Property’s Leviathan,” Amy Kapczynski argues that both advocates of strong IP protection, and critics from the creative-commons (CC) side tend to view the state in the same way: “both those who defend robust private IP law and their most prominent critics … typically describe the state in its first instance as inertial, heavy, bureaucratic, ill-informed, and perilously corruptible and corrupt” (131-2).  On the pro-IP side, neoliberal economic doctrine (she cites Hayek) view the state’s role as establishing markets and getting out of the way.  The state otherwise lacks the information to decide winners and losers efficiently, and in any case, it would tend to be corrupted by political or other sectarian interests (ignore for the moment the corruptibility of markets).  On the creative commons side, which Kapczynski identifies with Yochai Benkler and Lawrence Lessig, there is a tendency to adopt exactly the same view of the state: “the commons, they suggest, is a concept that seeks not only to liberate us from predatory and dysfunctional markets, but also from predatory and dysfunctional states” (137).  As she points out, IP does present a number of obvious instances of regulatory capture, so the fear is not an irrational one.  The irony behind this distancing, however, is that both views also require the state to be a functioning entity capable of creating and executing reasonably coherent policy.  For the pro-IP camp, the state has to be able to administer a property regime (and a complex regulatory bureaucracy); for the commons camp, the state has to be able to do things like fund basic research through agencies like the NIH.

Kapczynski’s point is an important one, and I have only a couple of things to add.  First, she notes that the commons theorists tend to treat infrastructural projects and commons-based private ordering systems in the same camp.  As she notes, this is a strange move:

Revising Foucault on Neoliberalism: the Role of Monopolies (part 2)

By Gordon Hull

As I suggested last time, the current neoliberal expansion of IP hinges on the acceptance of monopolies, and the relation between deadweight loss (as advanced by Arrow) and incentives theory (as advanced by Demsetz) is accordingly essential to understanding it.  Here I want to expand on that point, and then say something about contemporary theory.

The debate is one that Demsetz’s side is winning.  When term limits came before the Supreme Court in Eldred v. Reno, a set of seventeen economists – including such neoclassical luminaries as Arrow, James Buchanan, Ronald Coase, and Milton Friedman – submitted an amicus curiae brief to the Supreme Court opposing the 1998 Copyright Term Extension Act (CTEA).  These economists made arguments precisely in terms of incentives and deadweight loss: a further increase in term length is highly unlikely to make a meaningful difference to incentives to create works, while likely to burden the public with reduced access, and other creators with greater licensing fees.  They conclude:

Revising Foucault on Neoliberalism: the Role of Monopolies (part 1)

By Gordon Hull

In rereading Philip Mirowski’s critique of Foucault on neoliberalism (as it’s presented in Never Let a Serious Crisis Go to Waste, his book on the 2008 financial crisis), I noticed a limit in Foucault’s analysis that I hadn’t really thought about before.  Although Foucault correctly sees that a key (if not they key) feature in the transition from classical liberalism to neoliberalism is the realization that markets are something that the state can create and curate, he does not see that neoliberalism also puts a lot of weight on the neoclassical tolerance for monopolies.  This is a significant reversal from classical liberalism.  I work on intellectual property, which is a legal regime that attempts to create markets in intellectual goods by way of granting monopolies to their creators, which means it’s hard to ignore the tolerance of monopoly.  But the point is worth expanding on more generally.

As Foucault points out (as will be apparent, all of my references will be to Birth of Biopolitics; I’m not aware the topic comes up elsewhere in his work), classical liberalism – the “liberal art of government” (BB 65) – requires anti-monopoly legislation for the “freedom of the internal market to exist” (BB 64).  Competition, if left unchecked, will tend to lead to monopolies.  By the New Deal, and the political opposition is engendered, liberalism faced a “crisis … due to the inflation of the compensatory mechanisms of freedom” (BB 69) such that anti-monopoly legislation could be perceived as part of a “’legislative strait-jacket” (BB 68).  The ordo-liberals thus pick up on the “problem of competition and monopoly” but “do not depart in any way from the historical development of liberal thought” (BB 119).  For early neoliberalism, the “problem will be to demonstrate that monopoly is not in fact part of the economic and historical logic of competition” (BB 134).  Instead, they look at what non-economic policies are supposed to have led to monopolies, and argue that competition and markets do not, without these external distortions, lead to monopolies.  They also reframe the problem with monopolies, which is that they will distort the operation of the price mechanism (BB 136, citing von Mises).  The essential claim is thus that a monopolist will have to charge market prices, or competition will unseat him.  So intervention is not necessary (BB 137).

PIKSI: Summer institutes for undergrads from groups traditionally underrepresented in philosophy

Net Neutrality, Bears Ears and Primitive Accumulation

By Gordon Hull

Ajit Pai is the Marie Antoinette of the Trump Administration.  How else can you explain his decision to do a little skit last week, in which he pretends that his chairmanship of the FCC is a part of a plot by his former employer, Verizon, to ensure full regulatory capture of the FCC?  This of course while he was inside a cozy dinner, ignoring people outside protesting his impending vote to end Net Neutrality, and while he claims the support of millions of provably fake comments?  If that moment put the sheer hubris of the Trump administration on display, then surely its naked appeals to the worst kind of partisanship was Pai’s attempt to deflect criticism of his decision by companies like Twitter.  There, his argument was that Twitter, not he, is an enemy of the open internet because it’s (supposedly) too liberal.  As for the millions of provably fake comments, Pai can’t be bothered to investigate, and won’t let anybody else do so either.

Gaslighting in the FCCorporate Attack on Net Neutrality

By Gordon Hull

As part of its war on all things done during the Obama administration, the Trump administration is planning to do away with Net Neutrality rules.  Those rules, announced in early 2015, established that Internet Service Providers must treat all traffic across their networks equally.  Absent such rules, they could favor their own content over that of their competitors, favor content providers who are willing and able to pay extra for faster service, disfavor content that they don’t like (in the only bit of possible karmic justice here, many of them could make it much harder for radical white terrorists to organize online), and so forth.  The “FCCorporate” in my title is deliberate, and it’s of course designed to indicate regulatory capture.  But it also indicates something particularly insidious: regulatory capture by way of gaslighting.  First, a review of net neutrality.

The Neoliberal Biopolitical Two-Step: Of Patents and Banking Arbitration

By Gordon Hull

It has seemed to me for a long time that one helpful theoretical lens through which to look at neoliberalism is to understand it as a phase (or perhaps a dispositive) of biopower. This is because neoliberalism does not generally rely on juridical rules (or tried to colonize the judiciary), it pushes for the marketization of everything, and involves an elaborate state apparatus to support that marketization. It also functions as an engine of subjectification, actively attempting to turn everyone into instantiations of homo economicus, whether directly by state action, or by way of empowering private actors. Even school students are quietly taught the ropes. The incessant demands for privatization have put enormous pressure on the public sector, both in the starvation of funding cuts and the efforts to privatize it. That, in turn, has led to such monstrosities as private prisons.

That said, today’s neoliberal biopolitics obviously needs to be distinguished from the biopolitics that came before, which was, as Foucault discussed, centered at the population level, concerned with birth rates, longevity, and so on (hence the distinction is readily apparent in health policy). One of the hallmarks of the emergence of biopolitics is the rise of the administrative state; as the state comes increasingly to try to optimize the population, an elaborate administrative apparatus – a large state bureaucracy – emerges to fill these functions. This does not mean that there are no more laws. Indeed, Foucault emphasizes that the biopolitical era involves multiple sites of power, both inside and outside the state:

C-M-C, M-C-M’ and Marx’s understanding of Power

By Gordon Hull

Over at Larval Subjects, Levi Bryant has a nice post on how Marx’s distinction between C-M-C and M-C-M’ helps to explain an otherwise puzzling ideological construction. Marx’s distinction, arrived at in chapter 4 of Capital, is about how commodities circulate. In the C-M-C formula, we consider someone who starts with a commodity, sells it, and uses the proceeds to buy another one. For example, I start with a shirt, sell it, and use the money to buy some bread. In this formula, a couple of things become apparent: use value is both the beginning and end of the process insofar as the individual offers up something she doesn’t have a use for (or has less of a use for), and essentially trades it for something she has a greater use for. In contemporary economic-speak, the market is efficiently helping individuals satisfy their preferences, by moving goods to whoever values them the most. This is the perspective of the worker, who sells his labor for money.

The M-C-M’ relation is one that the capitalist uses. Here, the capitalist has money, sells it to get a commodity, and then sells the commodity for more money than he paid for it. As a result, he has more money at the end of the day than before. Marx emphasizes the M-C-M’ relation because it helps to get him to labor as the source of value: whatever commodity occupies the middle place in the M-C-M’ relation has to be one the use of which increases its value. The answer, of course, is labor.

Foucault and Marx: on Subjectification and Exhaustion

By Gordon Hull

I have been circling around the relation between Marx and Foucault for a while, and thinking in  particular about the ways that they can be viewed as productively engaged, particularly at the intersection of primitive accumulation and subjectification (e.g., here, here and here)  This of course flies in the face of Foucault’s acerbic dismissals of Marxism, as when in the early parts of Society must be Defended, he dismisses it as “totalitarian,” or in the Trombadori interviews more generally.  But there is a renaissance of interest in the topic, and there are a number of Foucault texts only now being studied in the English-speaking world that can be brought to bear on it.  Most prominent perhaps is the recently translated “Mesh of Power” lecture, where Foucault specifically credits chapters 13-15 of Capital for moving toward a non-juridical understanding of power.  As Foucault says, what Marx shows there is that “one power does not exist, but many powers” and that power is productive, not repressive:

“These specific regional powers [delineated by Marx – GH] have absolutely no ancient [primordial] function of prohibiting, preventing, saying ‘you must not.’ The original, essential and permanent function of these local and regional powers is, in reality, being producers of the efficiency and skill of the producers of a product.  Marx, for example, has superb analyses of the problem of discipline in the army and workshops.”

What I want to do here is extend some of the credit to the “Fragment on Machines” section of the Grundrisse. 

Facebook and Russian Meddling: Why is anyone Surprised?

By Gordon Hull

Facebook’s opaque advertising practices are in the news (again) because it was apparently the vehicle through which some of the Russian attempts to meddle in the 2016 election were routed.  This piece by Sam Biddle on The Intercept is well worth the read, as it makes the case that the public needs to know more about Facebook’s advertising practices. On the one hand, the company has admitted to a little of what happened.  But it studiously has failed to answer most of the relevant questions, hiding behind vague, well-lawyered blog posts. Biddle concludes:

“It’s reassuring that Facebook is cooperating with the ongoing Russia-related probes. But this is bigger than Russia, bigger than Hillary Clinton, and bigger than 2016. Should Facebook continue to simply allude to its ominous potential rather than sharing it in full, there’s only one good option left: Bring in Mark Zuckerberg and have him sworn in live on C-SPAN. No spokespeople required.”

This is not a new issue; what Facebook does to your news feed is a paradigmatic example of the black box society at work. Worried? Facebook routinely publishes research designed to exonerate itself from whatever concerns its black box might engender; for example, it published papers in both 2015 and 2012 purporting to prove that it did not contribute to the development of online echo chambers.  As I argued at the time, these results are not just misleading for reasons internal to the research, but because they spread the myth that anything involving big data, machine learning, or a humongous N= figure somehow produces unvarnished, self-interpreting truth.  This serves to insulate companies like Facebook from the scrutiny that accompanies what Tarleton Gillespie identified as the “politics of platforms” back in 2010 and what Helen Nissenbaum and Lucas Introna identified as an analogous issue with portal sites all the way back in 2000.  When a company is the means through which people experience the Internet or their social interactions with other users, how that company curates its data matters.  But two things are certain: the data is carefully curated, and the companies curating the data aren’t talking.  This isn’t to say that they don’t say things indicating what they might be up to; under the guise of proving that the emotional contagion effect could work across remote networks (and did not require face-to-face interaction), Facebook basically telegraphed that it manipulates users’ news feeds to elicit (presumably positive) emotional states.  danah boyd captured a lot of what is at stake, pointing out (again, a while ago) that Facebook presents itself like a public utility, but demands that it be free from the regulations that guarantee that utilities serve the public interest.

Is Intellectual Property actually Property?

By Gordon Hull

This sounds like a trick question, but it’s not.  It’s also currently before the Supreme Court, about which more in a moment.  First, however, let me summarize the case for why IP isn’t really “property” in the ordinary sense, even if we use the word.  In a paper from a little more than ten years ago, Michael Carrier proposed that although we claim that IP is a “property,” and treat IP as property in some respects, we do not actually treat it as we do other forms of property.  In the first step, we have come to treat IP as property “not only in the essentially unlimited scope and duration of its initial rights but also in the ubiquitous assertions that IP is absolute property” (12).  This is evident, Carrier suggests, in a number of ways.  In copyright, for example, term length, scope, and subject matter are all increasing.  In patents, enforcement is increasing (especially with the creation of the Federal Circuit, which stopped a lot of forum shopping, although the Eastern District of Texas until very recently functioned as a favored forum of so-called “patent trolls”), and patent rights are more and more viewed not just as innovations, but as investments.  The result should be familiar to anyone familiar with discussions of neoliberal financialization:

Radical White Terrorism as State Policy: Trump, Sovereign Decision and homo sacer

By Gordon Hull

As our tin-pot “President” continues his inexorable slide into narcissistic authoritarianism, it is worth noting recent events that establish beyond any residual doubt that radical white terrorism is now official policy.  When historians look at the Trump presidency, assuming we all survive long enough for there to be historians, I suspect last week is going to be a significant one.  It began with Trumps’s remarks after Charlottesville, in which he managed to say that counterprotestors shared in the blame for neo-Nazi violence and that there were many “fine people” hiding in the mob of white supremacists.  These made his own views clear (as though they weren’t already).  But they did not establish state policy.  Events Friday did: the pardoning of former Maricopa Country Sheriff Joe Arpaio, the border patrol’s decision to keep inland border patrol checkpoints open during the evacuation from Hurricane Harvey, and Trump’s apparent decision to end the DACA program.  Together these say: radical white terrorism is above the law, and the undocumented are homines sacri. Foucault remarked at one point that in a biopolitical state “it’s impossible to reconcile law and order because when you try to do so it is only in the form of an integration of law into the state’s [administrative] order” (Power, 117).  In Trump’s America, you get neither law nor order: Trump despises both the rule of law, as evidenced Friday, and the administrative state, as evidenced by his repeated appointment of incompetent, unqualified partisan hacks to head regulatory agencies the very existence of which they oppose.  The theoretical framework through which all of this behavior is intelligible finds its expression in the Nazi jurist Carl Schmitt.

Radical White Terrorism

By Gordon Hull

Although they murdered one person, injured 19 others, and celebrated two governments, one of which systematically exterminated over 6 million people in the name of white supremacy, and another that systematically murdered and enslaved millions more, also in the name of white supremacy, members of the far right somehow managed to proudly act like newly liberated victims of something or another (“cultural Marxism?”).    It’s not like Charlottesville should have been a surprise; the FBI and DHS warned about the threat from white supremacists months ago.  White supremacists had been nursing fantasies of running over liberals with cars for quite some time, and racist hate crimes – including, as in Portland, the murder of those who try to stop racist hate crimes – have (unsurprisingly) been on the rise since Trump came to power.  Moreover, what happened last weekend was not about free speech and marches.  It was much more about political violence and intimidation: they showed up in Charlottesville looking for a fight, toting semi-automatic weapons and militia groups so that they might not just exercise their First Amendment rights, but deprive others of their First Amendment rights.

Limitless Home Surveillance by your Vacuum Cleaner

By Gordon  Hull

The expansion of the Internet of Things is going to provide a lot playspace for highly intensive and granular corporate surveillance – which is to say it’s going to be a catastrophe for privacy.  Sure, sure, everything will come with a “click here to accept” or comparable “notice and consent” privacy policy that “empowers” individuals to make a rational decision about whether their fridge should communicate with their grocery store when they are running low on milk.  But as Allesandro Acquisti and coauthors note:

“Uncertainty and context-dependence imply that people cannot always be counted on to navigate the complex trade-offs involving privacy in a self-interested fashion. People are often unaware of the information they are sharing, unaware of how it can be used, and even in the rare situations when they have full knowledge of the consequences of sharing, uncertain about their own preferences. Malleability, in turn, implies that people are easily influenced in what and how much they disclose. Moreover, what they share can be used to influence their emotions, thoughts, and behaviors in many aspects of their lives, as individuals, consumers, and citizens. Although such influence is not always or necessarily malevolent or dangerous, relinquishing control over one’s personal data and over one’s privacy alters the balance of power between those holding the data and those who are the subjects of that data.”

Indeed, one strongly suspects that’s the point.

In the meantime, Burger King ran an ad that tried to trick Google Home into running a search for the Whopper.  And now there’s this:

“High-end models of Roomba, iRobot’s robotic vacuum, collect data as they clean, identifying the locations of your walls and furniture. This helps them avoid crashing into your couch, but it also creates a map of your home that iRobot is considering selling to Amazon, Apple or Google.”

That’s right: if you have one of those robot vacuum cleaners, it might very well be constructing a highly granular map of your home that will be able to interpret things like what kinds of furniture you have and whether (and how many) kids you have, and so forth.  Expect targeted ads to follow if the data leaves the Roomba.

Oh, and depending on how courts interpret third party doctrine, that detailed interior map of your home may be freely available to law enforcement. As Justice Sotomayor warns, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” in the “digital age.”

In the meantime, I recommend a broom.

Intellectual Property Theory Wars (Part 2): IP as social power

By Gordon Hull

Last time, I introduced the exchange between Mark Lemley and Robert Merges on IP theory, and made the initial case that Lemley is essentially arguing for the theoretical primacy of neoliberal biopower in intellectual property.  Merges, as will hopefully become evident below, is more interested in grounding IP in juridical notions of rights-bearing subjects.  Lemley finds such grounding not just wrong but incoherent and irrational, on the grounds that it is a refusal to use empirical evidence.  What I want to do here is dig out some of the textual evidence to support my argument, specifically by looking at some of the work Lemley puts in the “faith-based” camp.  That is, the way Lemley critiques other efforts at IP theory seems to me to exemplify the hold that Chicago has on IP scholarship.  I want to look at his treatment of three such competing views: he finds them completely unintelligible when they use a non-utilitarian form of reason (Merges), he ignores it when they argue from an economic perspective that rejects the basic assumptions of the Chicago school’s development of IP (Amy Kapczynski), and he contorts them into an unpersuasive utilitarian frame when they challenge wealth aggregation as the appropriate standard for evaluation (Madhavi Sunder).  Let’s look at these in reverse order.

Intellectual Property Theory Wars (Part 1)

By Gordon Hull

A couple of years ago, Mark Lemley, one of the most influential and prolific of intellectual property scholars, published his “Faith-Based Intellectual Property,” a manifesto against what he characterizes as non-utilitarian or non-empirical theories of intellectual property.  In other words, “participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all” (1336).  He adds, “I call this retreat from evidence faith-based IP, both because adherents are taking the validity of the IP system on faith, and because the rationale for doing so is a form of religious belief” (1337).  He treats Robert Merges’ Justifying Intellectual Property (2012) as the paradigmatic example of this phenomenon, though he cites others.  A couple of months ago, Merges’ response, “Against Utilitarian Fundamentalism” appeared, arguing that it was the militant utilitarian position – which as Merges reads it assumes that “to abandon the solid world of empirical foundations is to automatically commit to a stubbornly irrational set of foundations” – that “commits precisely the error that [it] attributes to others” which “takes an extreme position, cutting off conversation and debate” (n5)

The point I want to make here (in this post and a follow-up) – and I should say that I absolutely agree with Lemley both that IP protections are too strong now, and that there is a good-sized body of evidence that supports this proposition – is that Lemley’s argument presupposes that IP is a form of biopower (or perhaps biopolitical governmentality) insofar as it sets policy, the aim of which is to optimize the welfare of the bios by pushing the “conduct of the conduct” of individuals within it toward higher levels of creative productivity (if you are uncomfortable calling that “biopower,” then it’s fine to stick with “governmentality” here – the point is the contrast with other kinds of thought).  I would also argue, though again not a lot hangs on the distinction here, that Lemley’s framework is almost entirely dependent on law and economics, as it developed out of the University of Chicago from the 1960’s onward.  In this, he is accepting what one might call a neoliberal understanding of intellectual property (on the move to law and economics, see especially William Davies).

More self-promotion: "Toward a critical theory of corporate wellness"

By Gordon Hull

Frank Pasquale and I have a new paper forthcoming in Biosocieties, "Toward a critical theory of corporate wellness."  Here is the abstract:

In the U.S., “employee wellness” programs are increasingly attached to employer-provided health insurance.  These programs attempt to nudge employees, sometimes quite forcefully, into healthy behaviors such as smoking cessation and exercise routines.  Despite being widely promoted as saving on healthcare costs, numerous studies undermine this rationale.  After documenting the programs’ failure to deliver a positive return on investment, we analyze them as instead providing an opportunity for employers to exercise increasing control over their employees. Based on human capital theory and neoliberal models of subjectivity that emphasize personal control and responsibility, these programs treat wellness as a lifestyle that employees must be cajoled into adopting, extending the workplace not just into the home but into the bodies of workers and entrenching the view that one belongs to one’s workplace.  At the same time, their selective endorsement of health programs (many scientifically unsupported) produce a social truth of wellness framed as fitness for work.  We conclude by arguing that the public health initiatives occluded by the private sector’s promotion of wellness programs would be a much better investment of resources.

Springer puts an embargo on the final version of the paper so it can't go up on SSRN yet, but they do invite authors to share a link to the final version  on their site.  Apparently you can read it there for free, and can download if you have institutional access.  The Biosocieties link is here, if you're using a connection with institutional access.