Internet Privacy and Self-Regulation: Lessons from the Porn Wars

The availability and adequacy of technical remedies ought to play a crucial role in evaluating the propriety of state action with regard to both the inhibition of Internet pornography and the promotion of Internet privacy. Legislation that would have restricted Internet speech considered indecent or harmful to minors has already faced and failed that test. Several prominent organizations dedicated to preserving civil liberties argued successfully that self-help technologies offered less-restrictive means of achieving the purported ends of such legislation, rendering it unconstitutional. Surprisingly, those same organizations have of late joined the call for subjecting another kind of speech--speech by commercial entities about Internet users--to political regulation. With regard to privacy no less than pornography, however, self-help offers Internet users a less-restrictive means of preventing the alleged harms of free speech than does state action. Indeed, a review of privacy-protecting technologies shows them to work even more effectively than the filtering and blocking software used to combat online smut. Digital self-help in defense of Internet privacy makes regulation by state authorities not only constitutionally suspect but, from the more general point of view of policy, functionally inferior

The Third Amendment: Forgotten but Not Gone

Pity the Third Amendment. The other amendments of the United States Constitution\u27s Bill of Rights inspire public adoration and volumes of legal research. Meanwhile, the Third Amendment languishes in comparative oblivion or, worse yet, suffers ridicule. The Third Amendment has especially suffered from a lack of serious and sustained legal analysis. This paper aims to fill the most glaring gaps in Third Amendment scholarship, so as to round out our knowledge of the Bill of Rights and to pay the Third Amendment respect long past due

The Constitution as if Consent Mattered

Libertarians do not fit into the left-right spectrum very comfortably; by their own account, they transcend it. This brief paper, written for a Chapman Law Review symposium on libertarian legal theory, argues that libertarians should likewise transcend the dichotomy currently dividing constitutional theory. The Left tends to regard the Constitution as adaptable to current needs and defined by judicial authority; the Right tends to search the historical record for the Constitution’s original meaning. Each of those conventional approaches has its own virtues and vices. Combining the best of both — the responsiveness of living constitutionalism and the textual fidelity of originalism — generates a distinctly libertarian theory. This theory maximizes the consent of the governed and, thus, the justifiability of constitutional authority

Special International Zones in Practice and Theory

The French Republic had a problem. Foreign nationals had flown into the Roissy-Charles de Gaulle Airport near Paris and claimed the right to stay as refugees seeking asylum. Unwilling to have the supposed refugees imposed upon it, France resolved to process their claims without letting them into the country. How? By keeping them in the airport’s international transit zone—the area between the exit doors of airplanes arriving from abroad and the far side of customs and immigration clearance. This split border allowed France to summarily process and (typically) deport the foreigners while keeping them outside the country’s territory for asylum purposes. When detainees got seriously ill, France created so-called “floating international zones” to take them to a local hospital, a portion of which became a temporary international zone. These French innovations in border control inspired Hungarian transit zones, Australian migration zones, and similar partial territories across the planet. Few people beyond government attorneys and human rights workers have heard of that particular kind of special international zone, but most people know of the airport transit zone—an area where foreign travelers can catch connecting flights without going through local border controls and buy goods free of local customs, duties, or taxes. Research uncovers still other institutions that aspire to rise above merely local rules, including the United Nation’s headquarters and CERN laboratories. Each of these species fits within a more general genus, the special international zone (“SIZ”): An area that its host nation state places outside of its territory for the purpose of some local laws, leaving other such laws and applicable international obligations in force. Special international zones already exist in great number and variety. They continue to spread, grow, and adapt. This article introduces SIZs as objects worthy of study on many counts, but most particularly because SIZs offer nation states a mechanism for selectively unbundling their territorial services in response to necessity, the constraints of international law, and promotion of the public good

The Common Law in Cyberspace

Wrong in interesting ways, counts for high praise among academics. Peter Huber\u27s stirring new book, Law and Disorder in Cyberspace, certainly merits acclaim by that standard. The very subtitle of the book, Abolish the FCC and Let Common Law Rule the Telecosm, announces the daring arguments to follow. A book so bold could hardly fail to make some stimulating errors, the most provocative of which this review discusses. Thanks to his willingness to challenge musty doctrines of telecommunications law and policy, moreover, Huber gets a great deal right. Law and Disorder in Cyberspace argues at length that the Federal Communications Commission (FCC) has warped telecommunications markets, hindered technological advances, and violated constitutional rights. Huber blames the inherent nature of commission law, which he likens to Communist commandand- control economics: rigid, slow, and - despite all the earnest expertise of bureaucrats - ignorant (p. 8). Reforming the FCC is thus not an option; rather, it should shut its doors, once and for all, and never darken American liberty again (p. 7). What would replace the FCC? Market processes and common law courts. Rather than licensing access to the electromagnetic spectrum, Huber would sell it, dezone it, and leave private parties to determine its best uses (pp. 71-76). He regards price regulation of telecommunications services as inevitably and thankfully doomed by protean technologies and increasing competition (pp. 117-29). In place of the universal service subsidy, Huber counts on market forces to provide cheap basic access just as they already provide cheap fast food (pp. 130-41). The FCC sets technical standards quickly but incorrectly; [c]ompetition delivers real standards more slowly but far more robustly (p. 161). The telecommunications industry will deliver these and other triumphs, claims Huber, once it escapes from commission-law

Gambling for the Good, Trading for the Future: The Legality of Markets in Science Claims

Good ideas do not always lead to legal acts. Setting up a prediction market in science claims, for instance, certainly sounds like a good idea. Such a market could effectively open a shortcut to the future, answering crucial questions more quickly, accurately, and cheaply than extant institutions. Notwithstanding those salient benefits, however, U.S. law does not clearly permit markets in claims about science. Such a market would not fit neatly into any common law, statutory, or regulatory category, and courts have yet to clarify the matter. This paper aims to dispel some of the legal uncertainty surrounding prediction markets in science claims and, by so doing, to help chart a path toward their implementation. The paper begins with a concise introduction to markets in science claims. It then compares them to their closest analogs in U.S. law: gambling and commodity futures trading. That comparison finds the letter of the law somewhat less congenial to markets in science claims that the policies behind it. Both forms of legal analysis leave room to argue that markets in science claims should escape the limits imposed on gambling and commodity futures trading. Ill-fitting laws threaten to hinder well-meaning acts, however, so the paper concludes by describing a few strategies for implementing fully functional, if somewhat less than fully public or legal, markets in science claims