Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation

Abstract

Almost every day brings reports that Congress is considering new cyberspace-targeted laws and the courts are deciding novel cyberspace legal questions. These developments lend urgency to the question of whether a particular cyberspace legal change should come through operation of new statutes, judicial decisions, or the free market. If we can develop sophisticated analytical methods to evaluate institutional competence in cyberspace, we can vastly improve the development of cyberspace law and public policy.

Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation promotes just such an approach. By describing and extending a recently proposed model of comparative institutional analysis, the article develops a workable framework for assessing the ideal institutional resolution of particular cyberspace legal conflicts. It also offers guidance for what to do when a particular institution has already responded in a way that is suboptimal. For example, it argues that courts should use comparative institutional analysis to guide their interpretation of cyberspace statutes. The article uses the case study of intermediary liability for third party defamation to illustrate the analytical approach. The case study recounts an important cautionary tale of the bad policy that can result when legal decisionmakers ignore comparative institutional analysis, and demonstrates how much the outcome would have been improved had comparative institutional analysis been considered.

Keywords: Cyberspace, internet, institutional analysis, defamation liability

JEL Classification: K13