Abstract

http://ssrn.com/abstract=334581
 
 

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Against 'Against Cyberanarchy'


David G. Post


OTI/New America Foundation


Berkeley Technology Law Journal, Vol. 17, p. 1365, 2002

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.

Number of Pages in PDF File: 23

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

JEL Classification: K10, K33, K40


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Date posted: October 29, 2002  

Suggested Citation

Post, David G., Against 'Against Cyberanarchy'. Berkeley Technology Law Journal, Vol. 17, p. 1365, 2002. Available at SSRN: http://ssrn.com/abstract=334581 or http://dx.doi.org/10.2139/ssrn.334581

Contact Information

David G. Post (Contact Author)
OTI/New America Foundation ( email )
1899 L St., N.W., Suite 400
Washington, DC 20036
United States
HOME PAGE: http://www.davidpost.com
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