R. Polk Wagner, On Software Regulation , Southern California Law Review 78 (2005): 457, 470–71. See also Joel R. Reidenberg, 'Technology and Internet Jurisdiction,' University of Pennsylvania Law Review 153 (2005): 1951; Joshua A. T. Fairfield, 'Cracks in the Foundation: The New Internet Legislation's Hidden Threat to Privacy and Commerce,' Arizona State Law Journal 36 (2004): 1193 (arguing Congress should be more jurisdictionally exceptional and less content exceptional in its regulation of cyberspace).
Timothy Wu, 'When Code Isn't Law,' Virginia Law Review 89 (2003): 679, 707– 8.
Or more precisely, against a certain form of government regulation. The more powerful libertarian arguments against regulation in cyberspace are advanced, for example, by Peter Huber in Law and Disorder in Cyberspace. Huber argues against agency regulation and in favor of regulation by the common law. See also Thomas Hazlett in 'The Rationality of U.S. Regulation of the Broadcast Spectrum,' Journal of Law and Economics 33 (1990): 133, 133–39. For a lawyer, it is hard to understand precisely what is meant by 'the common law.' The rules of the common law are many, and the substantive content has changed. There is a common law process, which lawyers like to mythologize, in which judges make policy decisions in small spaces against the background of binding precedent. It might be this that Huber has in mind, and if so, there are, of course, benefits to this system. But as he plainly understands, it is a form of regulation even if it is constituted differently.
The primary examples are the convictions under the Espionage Act of 1917; see, for example, Schenck v. United States, 249 US 47 (1919) (upholding conviction for distributing a leaflet attacking World War I conscription); Frohwerk v. United States, 249 US 204 (1919) (upholding conviction based on newspaper alleged to cause disloyalty); Debs v. United States, 249 US 211 (1919) (conviction upheld for political speech said to cause insubordination and disloyalty).
See, for example, the work of John R. Commons, Legal Foundations of Capitalism (1924), 296–98, discussed in Herbert Hovenkamp, Enterprise and American Law, 1836– 1937 (Cambridge, Mass.: Harvard University Press, 1991), 235; see also John R. Commons, Institutional Economics: Its Place in Political Economy (1934) (New Brunswick, N.J.: Transaction Publishers reprint, 1990).
The general idea is that the tiny corrections of space enforce a discipline, and that this discipline is an important regulation. Such theorizing is a tiny part of the work of Michel Foucault; see Discipline and Punish: The Birth of the Prison (New York: Vintage, 1979), 170–77, though his work generally inspires this perspective. It is what Oscar Gandy speaks about in The Panoptic Sort: A Political Economy of Personal Information (Boulder: Westview Press, 1993), 23. David Brin makes the more general point that I am arguing — that the threat to liberty is broader than a threat by the state; see The Transparent Society, 110.
See, for example, The Built Environment: A Creative Inquiry into Design and Planning, edited by Tom J. Bartuska and Gerald L. Young (Menlo Park, Cal.: Crisp Publications, 1994); Preserving the Built Heritage: Tools for Implementation, edited by J. Mark Schuster et al. (Hanover, N.H.: University Press of New England, 1997). In design theory, the notion I am describing accords with the tradition of Andres Duany and Elizabeth Plater-Zyberk; see, for example, William Lennertz, 'Town-Making Fundamentals,' in Towns and Town-Making Principles, edited by Andres Duany and Elizabeth Plater-Zyberk (New York: Rizzoli, 1991): 'The work of . . . Duany and . . . Plater-Zyberk begins with the recognition that design affects behavior. [They] see the structure and function of a community as interdependent. Because of this, they believe a designer's decisions will permeate the lives of residents not just visually but in the way residents live. They believe design structures functional relationships, quantitatively and qualitatively, and that it is a sophisticated tool whose power exceeds its cosmetic attributes' (21).
Elsewhere I've called this the 'New Chicago School'; see Lawrence Lessig, 'The New Chicago School,' Journal of Legal Studies 27 (1998): 661. It is within the 'tools approach' to government action (see John de Monchaux and J. Mark Schuster, 'Five Things to Do,' in Schuster, Preserving the Built Heritage, 3), but it describes four tools whereas Schuster describes five. I develop the understanding of the approach in the Appendix to this book.
These technologies are themselves affected, no doubt, by the market. Obviously, these constraints could not exist independently of each other but affect each other in significant ways.
Lasica, Darknet, 16. See also Lior Jacob Strahilevitz, 'Charismatic Code, Social
