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Abstract:
Global computer-based communications cut across territorial borders, creating a new realm of human activity and undermining the feasibility--and legitimacy--of applying laws based on geographic boundaries. While these electronic communications play havoc with geographic boundaries, a new boundary, made up of the screens and passwords that separate the virtual world from the real world of atoms, emerges. This new boundary defines a distinct Cyberspace that needs and can create new law and legal institutions of its own. Territorially-based law-making and law-enforcing authorities find this new environment deeply threatening. But established territorial authorities may yet learn to defer to the self-regulatory efforts of Cyberspace participants who care most deeply about this new digital trade in ideas, information, and services. Separated from doctrine tied to territorial jurisdictions, new rules will emerge, in a variety of on-line spaces, to govern a wide range of new phenomena that have no clear parallel in the nonvirtual world. These new rules will play the role of law by defining legal personhood and property, resolving disputes, and crystallizing a collective conversation about core values.

Internet, Cyberspace, regulation

Abstract:
Prof. Jack Goldsmith's Against Cyberanarchy has become one of the most influential articles in the cyberspace law canon. The position he sets forth - what I call Unexceptionalism - rests on two main premises. The first is that activity in cyberspace is functionally identical to transnational activity mediated by other means (e.g., mail or telephone or smoke signal). The second is that, as a consequence of this functional identity, the settled principles and traditional legal tools of the international lawyer are fully capable of handling all jurisdictional and choice-of-law problems in cyberspace - that the choice-of-law problems implicated by cyberspace are not significantly different from those [of] non-cyberspace conflicts and that we therefore need make no special provision for these problems when they arise in cyberspace.

In this paper, I beg to differ. I remain an unrepentant Exceptionalist. Communication in cyberspace is not functionally identical to communication in realspace - at least, not in ways relevant to the application of the choice-of-law and jurisdictional principles under discussion. Second, I suggest reasons why the jurisdictional and choice-of-law dilemmas posed by cyberspace activity cannot be adequately resolved by applying the settled principles and traditional legal tools developed for analogous problems in realspace.

cyberspace, Internet, jurisdiction, sovereignty, choice-of-law, Exceptionalism, Goldsmith, regulation

Abstract:
Cyberspace represents a domain of human interaction that is as divorced from considerations of physical geography as any in human history. As we spend more and more of our time there, it will begin to stimulate new questions about, and insights into, the very fundamental role played by physical space, physical proximity, and physical power in legal and other rule-making systems. We have chosen to explore these questions through the lens of the theory of "complex systems." We discuss one efficient method of finding optimal configurations of complex systems--what Stuart Kauffman calls "patching," the division of a system into non-overlapping but coupled self-optimizing parts--and show that the efficiency of this problem-solving algorithm appears to depend crucially on the relationship between within-patch and between-patch spillover effects. Decentralized decision-making processes in socio-legal systems--systems of "competitive federalism"--may represent examples of this patching algorithm at work in the complex system of human rule-making institutions. We discuss the normative implications of this view for the design of such institutions where existing "patch boundaries" are being substantially perturbed (as is the case for interactions among geographically separated but newly connected individuals in cyberspace).

Abstract:
Who will make and enforce the rules of 'cyberspace'? In this paper, I look at the question by positing various 'controllers,' or points from which rules can issue, ranging from the technical protocols defining the inter-network at one end of the spectrum to Congressional statutes on the other. These controllers vary in their ability to enforce whatever rules they choose to adopt, depending on the existence of conflicting higher-level controllers, and on the possibility that those who are subject to the rules can change jurisdictions to seek a more favorable rule set. The Internet allows a relatively easy change of jurisdiction, or exit, from any given controller, leading to the unprecedented-and unpredictable-situation of a free.

internet, regulation

Abstract:
Code and Other Laws of Cyberspace is Lawrence Lessig's ambitious attempt to make sense of the new kinds of legal and regulatory problems that cyberspace presents to us. It is built upon the foundational premise that code - the hardware and software elements that populate this new place, and the communication protocols that allow these elements to interact with one another - defines the architecture of this new space and is of paramount importance in determining how it will be regulated. As an anthropology of the various new regulatory and quasi-regulatory structures that may arise on the global network, Lessig's book is captivating and often dazzling; he demonstrates, compellingly, that cyberspace is a place in which code dominates, a world in which code is law. As a normative call to arms, however, the book is somewhat less successful. Lessig argues that because we are the code writers - because cyberspace is a made, not a found, world - control over the code needs to be subject to political, collective decision-making. I suggest several reasons why this conclusion might not follow as smoothly from the premise as Lessig might have us believe.

internet, Lessig, code

Abstract:
The Internet is a language, a language that allows individuals to write texts (in a wide variety of other languages) and to communicate the meaning of those texts to others. Cyberspace is, in that very real sense, an entirely imagined world - a consensual hallucination, as one particularly perceptive observer nicely put it, a collection of stories. How is law to be made and enforced here?

Life must be lived forward, but it can only be understood backwards. My premise is that looking backward to try to understand how others looked forward will help us to make sense of the choices we face in cyberspace. Looking backward, we find Thomas Jefferson, who spent a lot of time looking forward, and who had a particular vision when he did so. If we're thinking about how, going forward, law should be made in this new language-place, this-place-that-is-noplace, we could do worse than to try to understand what Jefferson thought about how, going forward, law should be made in his new world, a new world that looked as bizarre to him and his contemporaries as cyberspace does to us.

But if we're thinking about how, going forward, law should be made in this new language-place, this-place-that-is-noplace, we could do worse than to try to understand what Jefferson thought about how, going forward, law should be made in his new world, a new world that looked as bizarre to him and his contemporaries as cyberspace does to us.

Recapturing Jefferson's vision requires recapturing the shape of the intellectual battles in which he was engaged. Jefferson had a great deal to say about language and its control. He was engaged in one of the major intellectual battles of the 18th century: who controls English, or French, or the other languages of the world? How can they be controlled? What happens if they're not?

Jefferson (and others, of course) prevailed in that battle, creating a kind of self-evident truth about the nature of freedom and the nature of language. But apparently we have to fight the battle all over again when confronting the languages of cyberspace. We again hear that they are too important, too indispensable as vehicles for commerce and of learning, to leave their growth and future development entirely to the uncoordinated chaos of the mob, away from the experts and outside the State's apparatus control. If it seems self-evidently wrong in retrospect, why does it not seem self-evidently wrong in prospect?

cyberspace, language evolution, Jefferson, regulation, Exceptionalism

Abstract:
Settlement of the New World called for a fundamental re-examination of the nature of sovereignty and statehood. Reconciling the paradoxical notion that the state is somehow both an agent of the people, and a sovereign possessing final and unappealable power, was a central pre-occupation of political thought of the 17th and 18th centuries. This paradox was resolved by the radical English Whig theorists (and their equally radical republican counterparts in the Americas) by the development of a new theory of sovereignty, one that relocated the locus of truly sovereign power away from the legislative assembly C away, indeed, from all governmental institutions C to the people. The state's power, in this view, is entirely derivative -- the very opposite of 'sovereign' -- flowing ultimately from the 'consent of the governed' who, possessing sovereign but delegable power, constitute the state as their agent for the purpose of engaging in collective action conducive to their pursuit of happiness.


This normative view of states as constituted agents whose power derives from the people's collective will and their ultimately indivisible sovereignty -- a view that has come to be labeled the 'Liberal' theory of statehood --is an a-territorial one insofar as it discards notions of physical territoriality and physical power as the bases for the exercise of sovereign power. And, as such, it appears well suited to an increasingly a-territorial, networked world. The settlement of the new domain of cyberspace may enable us to take more seriously than ever before the possibility that individuals in the ordinary course of their affairs can create governmental entities that lack territorial status, a-territorial consensual associations with no geographical referents whatsoever onto which a portion of their 'sovereignty' devolves. This paper explores some of the implications this may have for evolving normative theories of statehood and for related questions of the extraterritorial assertion of jurisdiction by existing territorial states.

internet, governance, sovereignty, jurisdiction

Abstract:
What is the source of those law(s) that will govern our interactions in cyberspace? What body of rules will participants in cyberspace transactions consult to determine their substantive obligations and who is to make those rules? This paper sketches out two alternative models for the way in which order can emerge in this environment, models I refer to as Hamilton and Jefferson. Hamilton involves an increasing degree of centralization of control, achieved by means of increasing international coordination among existing sovereigns, through multi-lateral treaties and/or the creation of new international governing bodies along the lines of the World Trade Organization, the World Intellectual Property Organization, and the like. Jefferson invokes a radical decentralization of law-making, the development of processes that do not impose order on the electronic world but through which order can emerge, in which individual network access providers, rather than territorially-based states, become the essential units of governance. The normative choice is a significant one, and I argue that mobility users' ability to move unhindered into and out of individual networks with their distinct rule-sets is a powerful guarantee that the resulting distribution of rules is a just one; indeed, that our very conception of what constitutes justice may change as we observe the kind of law that emerges from uncoerced individual choice.

internet, regulation, governance, jurisdiction, sovereignty, conflict of laws

Abstract:
When is the developer or distributor of a copying technology legally responsible for the copyright infringements committed by users of that technology? Over the past twenty years or so, development and deployment of digital copying technologies (personal computers, CD and DVD burners, iPods and other portable music devices, the Internet itself, etc.), and tools for Internet file sharing and file distribution, have thrust that question into the center of a high-profile public debate. That debate gave rise to the most closely watched copyright case of recent years, MGMStudios Inc. v. Grokster, Ltd. The Ninth Circuit Court of Appeals had held that defendants Grokster and StreamCast, the developers and distributors of peer-to-peer file-sharing software, were shielded from copyright liability by the so-called Sony doctrine (also called the Betamax case), interpreting that doctrine to mean that distributors of copying technology that is capable of commercially significant noninfringing use are shielded from liability for the infringement committed by users of the technology, unless the distributors had specific knowledge of infringement obtained at a time at which they contributed to the infringement and had failed to act upon that information. The Supreme Court unanimously reversed, holding that because Grokster and StreamCast had distributed their software with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, Sony did not protect them from liability, whether or not their software was capable of commercially significant noninfringing use. The unanimous decision in the copyright holders' favor is, obviously, a big loss for Grokster Inc. and StreamCast, Ltd.; its broader implications for Internet file-sharing practices and file-sharing technology, however, are much less clear; to try to understand what they might be, we rewind the tape, back to Sony in 1984 . . .

internet, peer-to-peer filesharing, copyright, intermediary liability

Abstract:
Although citation to precedent in judicial opinions is a critical component of the network of rules that comprise "the law" in any area, there have been surprisingly few systematic attempts to use the abundant data available on citation patterns to uncover general principles that might illuminate the nature and structure of the legal system. In this paper, we use data from the New York Court of Appeals and the Seventh Circuit regarding the number of times judicial opinions cite to, and are subsequently cited as, precedent to test the hypothesis that legal arguments and legal doctrine have a kind of "fractal" structure. Our model provides a reasonable fit to the citation data that we examined, although there appear to be significant sources of variability in these data that are not explained by our simple predictive framework, and it is clearly far too early to draw any robust conclusions about the hypothesis other than that additional work along these lines appears to be warranted.

judicial citations, fractals, network structure

Abstract:
The distinction between anonymous and pseudonymous communications is a subtle one, depending both on message context, traceability, and the state of both the law and the relevant technology regarding identification. They serve very different purposes within the matrix of social communication. Regulation of anonymity may have effects on the ability of individuals to pool their efforts together. The regulation of anonymous communication is inextricably linked to the regulation of pseudonymous communication; the latter, in turn, is inextricably linked to the regulation of the kind of 'legal persons' the law will recognize, the kinds of collective entities that can speak 'with one name.' Pseudonymity is a way of achieving a kind of limited liability for individuals engaged in collective communications activities. Pseudonymity involves its own unique set of benefits, including the potential to allow for the accumulation of reputational capital. Our understanding of the costs and benefits of regulation of anonymous communications must take these into account.

anonymity, pseudonymity, internet regulation, limited liability

Abstract:
There is a "Napster problem," but it is not that people are using the remarkable new tools at their disposal in cyberspace to accomplish previously unimaginable feats of information-sharing and information-redistribution; that is not really a problem at all, that is the solution to a problem, the problem of finding better ways to get more information more quickly to more people. The "Napster problem" is not that information is being shared but that information is being smuggled - across the border, from realspace to cyberspace (and, somewhat more metaphorically, from the past to the future). Solving the "Napster problem," then, might not necessarily mean figuring out ways to impose an unnecessary copyright regime on the information circulating on the global network; it might mean figuring out ways to reduce the incidence of smuggling, and/or to compensate those whose works are being smuggled, across the border into cyberspace. It means focusing our attention on devising ways that copyright can continue to do its work (if and where it is needed) and can disappear (if and where it is not). What we need are ways to build better borders, tools for making the boundary between realspace and cyberspace more impermeable. It sounds like a task that is either ridiculous or impossible, but it is neither.

copyright, internet, Napster, peer-to-peer fileshar

Abstract:
How should the views of individual judges on an appellate panel be combined to reach a decision in any particular case. Oddly enough, there has been coomparatively little attention paid to this very fundamental question, notwithstanding the fact that there are (at least) two very different procedures judges could use, and that the choice between them may be outcome-determinative in many circumstances. In this paper, we set out an analytic framework for examining the question of which voting rule multi-member courts should use, with reference to the well-known case of National Mutual Insurance Co. v. Tidewater Transfer Co., 337 US 532 (1948), and demonstrate a number of fundamental flaws in the methods of outcome-voting used by most multi-member panels.

Condorcet Paradox, judicial voting, multi-member courts