Volume 2008, No. 4

Articles

Human Dignity Under the Fourth Amendment
John D. Castiglione

In this Article, I propose that human dignity, as defined, should stand alongside privacy as a primary animating principle of the Fourth Amendment. While dignity as a concept has always existed around the periphery of search-and-seizure jurisprudence, and has intermittently been cited by the Supreme Court as a consideration in the reasonableness analysis, it has been severely

underdeveloped both in the case law and in the academic literature. I seek to bring dignity to the fore as a usable interpretive device that supports a truly protective Fourth Amendment.

In Part I of this Article, I argue that privacy, a concept noted by many scholars to be in “disarray,” has proven itself incapable of supporting vigorous Fourth Amendment protections. In Part II, I outline a brief history of the evolution of dignity, both in legal and moral thought, and, drawing from this history, attempt to craft a workable standard for incorporating dignity into the general Fourth Amendment reasonableness analysis. Finally, in Part III, I address proposed critiques about my approach, finding ultimately that dignity can comfortably fit within current Fourth Amendment models, while lending reasonableness jurisprudence the constitutional and moral foundation it currently lacks.

Demystifying Lessig
Viktor Mayer-Schönberger

Lawrence Lessig shaped the nascent field of cyberlaw. In particular his argument that “code is law” has become a central tenant of the writings in the field. This Article offers a fundamental critique of Lessig’s core argument—and thus of core assumptions of cyberlaw scholarship. It first focuses on the role Lessig ascribes to the market and how he sees

it functioning. By emphasizing market choices, Lessig conceptualizes societal problems through a particular lens of atomistic decisions, of outcome rather than process, thereby failing to capture the full dynamic at play in free speech, intellectual property and privacy cases on the Internet. Second, for Lessig, markets function because of assumed or regulated information symmetry (that may not exist in most market transactions) causing him to overvalue transparency. A third fundamental weakness of Lessig’s theory is the relationship between technology and society. For Lessig, markets drive technology, which in turn shapes society. This linear, directional view has been discredited by much of the research in science and technology studies over the last four decades. Using two examples of the path of a particular technology (one from Lessig and one more recent)—cookies and podcasts—I show how Lessig’s technological determinism fails to capture the complex dynamics of innovation.

Comment

iHack, Therefore iBrick: Cellular Contract Law, the Apple iPhone, and Apple’s Extraordinary Remedy for Breach
Timothy J. Maun

Apple’s release of the iPhone was a highly anticipated event, promising to revolutionize the cellular phone industry as the iPod had previously done for the music industry. Like most cell phones though, the iPhone was tied to one carrier: AT&T. This restriction was untenable to some enthusiasts, who promptly “unlocked” the device for use on other carrier networks. Because doing so meant

that customers could circumvent an AT&T service contract entirely, the situation threatened to undermine the Apple-AT&T business relationship. In response, Apple released a software update that crippled unlocked iPhones, and AT&T threatened purveyors of unlocking software with copyright lawsuits. This comment argues that the contractual provisions that portend to prohibit unlocking and justify Apple’s conduct are likely unenforceable as unconscionable under California law, and that AT&T’s threats based on copyright law are legally unsound and a misuse of copyright law. If nothing else, the iPhone “bricking” fiasco has put an exclamation point on consumer discontent with the anticompetitive U.S. cell-phone industry, and ultimately may serve as the harbinger of true cellular freedom.

Note

Campaign Counterspeech: A New Strategy to Control Sham Issue Advocacy in the Wake of FEC v. Wisconsin Right to Life
Adam Welle

The rise of unregulated, veiled campaign advertising (i.e. “sham” issue advocacy) has frustrated the framework of campaign-finance law, and has played an influential role in the 2008 election cycle. Confronting this issue, this Note sets forth a proposal to constitutionally address the harmful effects of sham issue advocacy. Heeding lessons from the Supreme Court’s recent decision in FEC v. Wisconsin Right to Life

, this Note posits that regulatory limitations on political speech and spending too often conflict with established First Amendment principles. Therefore, campaign-finance reformers should employ legal controls utilizing “counterspeech” rather than censorship. Counterspeech doctrine envisions additional, opposing speech as the appropriate remedy for problematic expression. Embracing that concept, this Note advocates a bright-line regulation providing for immediate candidate response to preelection ads referencing those candidates. This method can enhance debate and campaign accountability in a manner consistent with First Amendment values.