The Myth of Private Ordering: Rediscovering Legal Realism in Cyberspace

Abstract

While Cyberspace is, by now, well-recognized as a social and commercial environment of great promise, there is considerable debate about the form of governance that will best meet the needs of this new medium. Much of the present discussion casts this debate in stark terms?"top-down" hierarchical rules versus spontaneous "bottom-up" coordination?with self-ordering based on contracts and private agreements rather than public laws appearing both preferable and more likely to evolve. Following up on arguments presented by Professors Fisher and Elkin-Koren in this symposium, Radin and Wagner point out that the dichotomy between top-down and bottom-up obscures that a self-ordering regime brought about by networks of contracts cannot stably exist without an established background of laws against which to enforce these agreements. They argue?using examples of the dispute over the allocation of domain names and the advent of trusted systems?that Cyberspace advocates should be debating the ingredients of good mixtures of private and public ordering rather than positing the choice between state control and anarcho-cyberlibertarianism. In considering these hybrid governance systems, Radin and Wagner note that the enforcement of rules in Cyberspace will depend largely upon the ultimate remedy of banishment. This remedy, they argue, will test the restraint of territorial sovereigns to whom any banishment might be appealed; unless there is considerable agreement about baseline rules among territorial sovereigns, any self-enforcement in Cyberspace may well be unstable. They therefore conclude that a necessary ingredient for self-ordering in Cyberspace is the development of global minimal background standards of due process and public policy limits on private agreements?and that such harmony has a better chance of emerging if advocates do not forget that contractual self-ordering cannot exist without it.