"A Response to Professor Benkler" by Marci A. Hamilton
 

Publication Date

Spring 2000

Journal

Berkeley Technology Law Journal

Abstract

Professor Hamilton explores the constitutional complexity uncovered by Professor Benkler in his piece, Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information. Specifically, Professor Hamilton highlights that our democratic structure is characterized by representation rather than self-rule. In doing so, she refocuses the role of information in the political process and highlights that different types of information require different levels of access. Professor Hamilton's analysis further illustrates how an imprecise use of terminology may lead to incorrect conclusions regarding information jurisprudence. Through her more refined lens, Professor Hamilton reconsiders the proposed database legislation under the Copyright and Commerce Clauses and under First Amendment doctrine. While critiquing Benkler's underdeveloped theoretical and doctrinal approaches, she concludes that he does correctly find the Collections of Information Antipiracy bill constitutionally deficient; however, he is incorrect in finding the Consumer and Investor Access to Information bill constitutionally sound. Indeed, Professor Hamilton's response emphasizes that a broad-brush approach cannot draw the fundamental fine line between constitutionally acceptable and unacceptable regulations of information.

Volume

15

Issue

2

First Page

605

Last Page

628

Publisher

University of California, Berkeley School of Law

Keywords

Religion and the Law, Censorship, First Amendment

Disciplines

First Amendment | Law

Comments

Symposium: The Constitutionalization of Technology Law

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