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(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).
4. 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), 17077,
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 arguingthat the threat to liberty is
broader than a threat by the state; see The Transparent Society, 110.
5. 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 designers 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).
6. Elsewhere Ive 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.
7. 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.
8. Lasica, Darknet, 16. See also Lior Jacob Strahilevitz, Charismatic Code, Social Norms
and the Emergence of Cooperation on the File-Swapping Networks, 89 Virginia Law Review
(2003), 505 (arguing that charismatic code creates an illusion of reciprocity that accounts for
why people contribute to a filesharing network).
9. Jay Kesan has offered a related, but more expansive analysis. See Jay P. Kesan and Rajiv
C. Shah, Shaping Code, Harvard Journal of Law and Technology 18 (2005): 319, 338.
10. See Michelle Armond, Regulating Conduct on the Internet: State Internet Regulation
and the Dormant Commerce Clause, Berkeley Technology Law Journal 17 (2002): 379, 380.
11. See, for example, the policy of the Minnesota attorney general on the jurisdiction of
Minnesota over people transmitting gambling information into the state; available at link #49.
12. See, for example, Playboy Enterprises v. Chuckleberry Publishing, Inc., 939 FSupp 1032
(SDNY 1996); United States v. Thomas, 74 F3d 701 (6th Cir 1996); United States v. Miller, 166
F3d 1153 (11th Cir 1999); United States v. Lorge, 166 F3d 516 (2d Cir 1999); United States v.
Whiting, 165 F3d 631 (8th Cir 1999); United States v. Hibbler, 159 F3d 233 (6th Cir 1998);
United States v. Fellows, 157 F3d 1197 (9th Cir 1998); United States v. Simpson, 152 F3d 1241
(10th Cir 1998); United States v. Hall, 142 F3d 988 (7th Cir 1998); United States v. Hockings, 129
F3d 1069 (9th Cir 1997); United States v. Lacy, 119 F3d 742 (9th Cir 1997); United States v.
Smith, 47 MJ 588 (CrimApp 1997); United States v. Ownby, 926 FSupp 558 (WDVa 1996).
13. See Julian Dibbell, A Rape in Cyberspace, Village Voice, December 23, 1993, 36.