The Globalization of Jurisdiction
Paul Schiff Berman
George Washington University - Law School
The Globalization of Jurisdiction, University of Pennsylvania Law Review, Vol. 151, pp. 311-529, December 2002
This Article begins by surveying the myriad ways that increasing globalization of communication, travel, and trade, and in particular the rise of the Internet, have forced judges and legal scholars to "adapt" traditional rules for legal jurisdiction to the new economic and social environment. For example, if a person posts content online that is legal where posted but illegal in some place where it is viewed, can that person be subject to suit in the far-off location? How should the International Shoe "minimum contacts" test account for online contacts? Is online activity sufficient to make one "present" in a jurisdiction for tax purposes? And on and on. Moreover, beyond the internet context, annual meetings of the world's industrialized countries have become sites for the expression of uncertainty and resentment about the effect of international trade and monetary policy on local labor forces, the environment, and national sovereignty. Similar debates recur in the context of international human rights, where, increasingly, countries are asserting extraterritorial jurisdiction to try those accused of genocide and crimes against humanity in international or foreign domestic courts.
Though these issues arise in a variety of doctrinal areas and may involve a wide range of different legal and policy concerns, they all touch on the idea of legal jurisdiction, the circumstances under which a juridical body can assert authority to adjudicate or apply its legal norms to a dispute. And, in each of these cases, the question is complicated by the fact that jurisdiction may be asserted in one physical location over activities or parties located in a different physical location.
This period of doctrinal flux affords us an important opportunity to think not only about adapting existing jurisdictional rules, but also about the theoretical basis for those rules. After all, conceptions about legal jurisdiction are more than simply ideas about the appropriate boundaries for state regulation or the efficient allocation of governing authority. Rather, jurisdiction is the locus for debates about community definition, sovereignty, and legitimacy. In addition, the idea of legal jurisdiction both reflects and reinforces social conceptions of space, distance, and identity. I therefore draw on work in political science, anthropology, sociology, critical geography, and cultural studies that forces us to question both whether nation-states should be the only relevant jurisdictional entities and whether strict territorial notions of jurisdiction actually fit people's lived experience of boundaries and community definition. Ultimately, I advance a "cosmopolitan pluralist" conception of jurisdiction, which aims to capture a jurisdictional middle ground between strict territorialism on the one hand and expansive universalism on the other. Such a theoretical model allows the legal definition of jurisdiction to become the rhetorical site for discussions of multiple overlapping and shifting understandings of community, and the recognition of judgments to become the terrain on which alternative conceptions of community vie for persuasive power and legitimacy. I conclude by offering examples of how this conception of jurisdiction is increasingly operating in transnational and international legal practice.
Number of Pages in PDF File: 219
Keywords: Cyberspace, Globalization, Jurisdiction, CultureAccepted Paper Series
Date posted: April 10, 2002
© 2013 Social Science Electronic Publishing, Inc. All Rights Reserved.
This page was processed by apollo5 in 0.375 seconds