Digital technology brought informational saturation to our lives. In cyberspace, private and business users need help to make valuable pieces of information stand out from the noise of excessive information. With search algorithms, recommender systems, and online advertising, digital platforms specialised in providing relief for this problem. Their technologies arrange digitalised information to make it intelligible and relevant for individuals. But the separation of information from noise did not only become a necessity to comfortably navigate the depths of the web, it also became a commodity. There is a demand for it, a supply, a price, and an exchange on markets which is enabled by private law. The examples of general search, recommender systems, and online advertising illustrate that. At the same time, their commodification can become problematic. This paper argues that in the European Union (EU), the separation of information from noise has become a contested commodity according to M. J. Radin’s framework. The Digital Services Act and the Digital Markets Act purposefully limit the influence of the market price mechanism on the design and allocation of the separation technology to protect legal goods like the democratic process, innovation, and privacy.

In The Redress of Law, Emilios Christodoulidis explores the philosophical foundations of market constitutionalism and shows how its embedded rationality shapes global governance. The author delves into critical phenomenology to lift the veil of ignorance on the fact that market constitutionalism has replaced political rationality with economic reasoning. By grounding its theory in the continental critical theory, ranging from Marxism to Weil’s existentialism and Luhmann’s systems theory, the book shows how the redress of law is also a practice that could radically transform the global political economy. However, the challenge is to displace the modern thinking of market constitutionalism that is rooted in functional differentiation and privileges constituted rather than constituent power. Such market thinking has allowed global governance experts to simplify and reduce to numbers complex polical, cultural and social phenomena embedded in constitutional legal regimes. The disembedding of law from society through functional differentiation, and the sole preoccupation of legal experts with constituted power, have contributed to the depoliticisation of constitutionalism as both theory and practice. A quintessential example of market constitutionalism in practice are global governance indicators. These indexes entail comparisons among legal regimes that empower private market rules as the final arbiter of local redistributive policies while bracketing historical, genealogical and reflexive connections to law’s social realities. The book offers several strategies of ‘redress of law’ such as rupture, contradiction and open dialectic, aiming to foreground political rather than market constitutionalism and to revamp the dialectic between constituted power exemplified by constitutional texts and constituent power, exemplified by strikes. This Article praises Christodoulidis’s sophisticated theoretical framework grounded in critical phenomenology, but at the same time pushes the author’s argument beyond the book itself. By questioning the practical implications of the redress of law, the focus on legal assumptions in global governance shows how legal experts in a variety of legal fields beyond constitutionalism have reproduced existing inequalities defined in terms of market, social and colonial hierarchies.

This Article discusses Emilios Christodoulidis’s The Redress of Law as a major contribution to contemporary critical constitutional theory, with a focus on its relationship with other lines of critical thought; with systems theory and societal constitutionalism; and with legal pluralism and the global constitutionalism discourses. It argues that the most valuable contribution of The Redress of Law lies in its capacity to innovate current theoretical discourses, too often closed in on their conceptual assumptions, in turn modelled on liberal political theory.

Intellectual property (IP) is the legal mechanism that transforms intangible instances into tradeable commodities. While creating the conditions for extraction of value and capital accumulation across all domains of economic and social life, IP law defines at the same time the boundaries of commodification by determining the scope of the public domain. Within this traditional framework, opponents of neo-liberal market expansionism have championed the role of IP doctrines and principles such as fair use, exceptions and limitations. However, new informational capitalism relies primarily on non-IP forms of appropriation and de facto control. To a large extent, commodification of intangibles and capital accumulation is no longer distressed by – and even benefits from – traditional public-domain-enhancing IP doctrines. This challenges traditional IP narratives and calls for a new foundation for a truly counter-hegemonic discourse in IP law.

The years following the financial crisis of 2008 have witnessed a revival of interest in both the Polanyian concept of ‘fictitious commodities’ and the Marxian concept of ‘fictitious capital’. The former, with its focus on the consequences of markets for the ‘fictitious commodities’ of land, labour, and money, appears as a plausible explanation for our present instability along environmental, social, and economic axes. The latter, with its focus on what sets financial capitalists apart from their industrial counterparts, sheds light on what really separates Wall Street from Main Street, and what it all means for the prospects of class struggle in the 21st century. Building on a decade and a half of discourse on the role of these phenomena in financialisation, this paper explores the kinds of limits the law can place on high finance’s most flagrant flights of fancy. Taking as case studies the post-crisis efforts by the European Union (EU) to intervene in two key financial markets – private equity and securitisation – it asks how far current regulatory frameworks go, and what more can be done to protect Europe from capitalism’s excesses.

The Article offers a summary of some of the major themes of Emilios Christodoulidis’s The Redress of Law. In addition, it engages critically with social systems theory by calling into question whether it provides us with an adequate perspective on constitutional law. The concluding observations address the deplorable state of the left-wing project at the beginning of the twenty-first century.

The paper looks at contracts and contract law as a place of both commodification and resistance to commodification. Commodification and contract are connected through the lens of flexibilisation, seen in particular as one party’s unilateral prerogative to adapt the content of the contract’s performance. Flexibilisation in this sense works to entrench the market mechanism (qua responsiveness to price and demand dynamics) in situations where marketisation makes the realisation of long-term human needs rely on the short-term horizon of market operations. Two such contexts of marketisation in the context of European Private Law are considered as examples, namely transfer of enterprise and acquisition of a (household) customer portfolio in energy markets. The paper argues that ‘taking contractual equality seriously’ can contribute to decommodification – or at least throw some sand in the wheels of commodification.

The Rejoinder offers a first response to the reviews of The Redress of Law, published in this issue of ELO, and further pursues certain lines of theoretical inquiry in engagement with the reviewers’ suggestions and objections.